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Federal Communications Commission. You may obtain copies of the final significant cause of the subspecies’’ Marlene H. Dortch, rule, environmental analysis, and extirpation from the United States with Secretary. monitoring plan from the field office the initiation of widespread DDT [FR Doc. E6–12024 Filed 7–25–06; 8:45 am] address above, by calling (505) 346– (dichloro-diphenyl-trichloroethane) use BILLING CODE 6712–01–P 2525, or from our Web site at http:// after World War II, which coincided www.fws.gov/ifw2es/NewMexico/. with the falcon’s disappearance (51 FR FOR FURTHER INFORMATION CONTACT: 6686, February 25, 1986). Falcons in Adam Zerrenner, Acting Field Mexico in the 1950s were heavily DEPARTMENT OF THE INTERIOR Supervisor, New Mexico Ecological contaminated with DDT residue, and these levels caused a 25 percent Fish and Wildlife Service Services Field Office at the above address (telephone 505–346–2525, decrease in eggshell thickness (Kiff et al. facsimile 505–346–2542). 1980). Such high residue levels can 50 CFR Part 17 often result in reproductive failure from SUPPLEMENTARY INFORMATION: RIN 1018–AI80 egg breakage (Service 1990). Background Collecting falcons and eggs may have also been detrimental to the subspecies Endangered and Threatened Wildlife Background information that was in some localities. However, and Plants; Establishment of a previously provided in our February 9, Nonessential Experimental Population populations of birds of prey are 2005, proposed rule (70 FR 6819) has generally resilient to localized of Northern Aplomado Falcons in New been condensed in this rule. Mexico and Arizona collection pressure (Service 1990). Biological Currently, long-term drought, shrub AGENCY: Fish and Wildlife Service, encroachment in areas of Chihuahuan The northern aplomado falcon Interior. grasslands, and the increased presence (hereafter referred to as falcon) is one of of the great-horned owl (Bubo ACTION: Final rule. three subspecies of the aplomado falcon virginianus), which preys upon the and the only subspecies recorded in the SUMMARY: We, the U.S. Fish and falcon, may be limiting recovery of this United States. This subspecies was Wildlife Service (Service), plan to subspecies. On the other hand, falcons listed as an endangered species on reintroduce northern aplomado falcons appear to be relatively tolerant of (Falco femoralis septentrionalis) (falcon) February 25, 1986 (51 FR 6686). The human presence. They have been into their historical habitat in southern falcon is classified in the Order observed to tolerate approach to within New Mexico for the purpose of Falconiformes, Family Falconidae. 100 meters (m) (328 feet (ft)) of their establishing a viable resident population Historically, falcons occurred nests by researchers and have nested in New Mexico and Arizona. The falcon throughout coastal prairie habitat along within 100 m (328 ft) of highways in is being re-established under section the southern Gulf coast of Texas, and in eastern Mexico (Keddy-Hector 2000), 10(j) of the Endangered Species Act of savanna and grassland habitat along and are frequently found nesting in 1973, as amended (Act), and would be both sides of the Texas-Mexico border, association with well-managed livestock classified as a nonessential southern New Mexico, and southeastern grazing operations in Mexico and Texas experimental population (NEP). The Arizona. Falcons were also present in (Burnham et al. 2002). Burnham et al. geographic boundary of the NEP the Mexican States of Tamualipas, (2002) concluded that falcons would be includes all of New Mexico and Veracruz, Chiapas, Campeche, Tabasco, able to coexist with current land-use Arizona. Chihuahua, Coahuila, Sinaloa, Jalisco, practices in New Mexico on the broad This action is part of a series of Guerrero, Yucatan, and San Luis Potosi, scale. reintroductions and other recovery and on the Pacific coast of Guatemala Over the past decade, widespread actions that the Service, Federal and and El Salvador (Keddy-Hector 2000). formal surveys have been conducted in State agencies, and other partners are Falcons were fairly common in suitable southern New Mexico habitats capable conducting throughout the species’’ habitat throughout these areas until the of supporting individual or breeding historical range. This final rule provides 1940s, but subsequently declined falcons (suitable habitat). Standardized a plan for establishing the NEP and rapidly. From 1940 to the present in falcon surveys have been conducted provides for limited allowable legal Arizona (Corman 1992), and from 1952 annually in suitable falcon habitats on taking of the northern aplomado falcon to 2000 in New Mexico (Meyer and White Sands Missile Range and Fort within the defined NEP area. Birds can Williams 2005), there were no Bliss by the Department of Defense only be released when they are a few documented nesting attempts by wild throughout the past decade (Burkett and weeks old, and this condition only falcons. In 2001 and 2002, one pair of Black 2003; Griffin 2005a; Locke 2005). occurs in the spring and summer of each falcons nested in Luna County, New White Sands Missile Range in central year. In order to accomplish a release in Mexico. This pair was unsuccessful in New Mexico contains one million 2006, we must expedite on-the-ground producing fledglings in 2001, but hectares (ha) (2.5 million acres (ac)). implementation. produced three fledglings in 2002. To The northwest corner (81,000 ha date, the 2002 nest has been the only (200,000 ac)) is highly suitable yucca/ DATES: The effective date of this rule is known successful falcon nest in either grassland preferred by falcons. There is July 26, 2006. Arizona or New Mexico since 1952. presently no livestock grazing and no ADDRESSES: Comments and materials The causes for decline of this public access to this area. The 145,139- received, as well as supporting subspecies have included widespread ha (358,643-ac) Armendaris Ranch, documentation used in preparation of shrub encroachment resulting from located in south central New Mexico, this final rule, are available for public control of range fires and intense contains undeveloped Chihuauhuan inspection, by appointment, during overgrazing (Service 1986; Burnham et desert grassland managed by Turner normal business hours at the New al. 2002) and agricultural development Properties in cooperation with the Mexico Ecological Services Field Office, in grassland habitats used by the falcon Turner Endangered Species Fund. 2105 Osuna Road, NE., Albuquerque, (Hector 1987; Keddy-Hector 2000). Armendaris Ranch managers have New Mexico 87113. Pesticide exposure was likely a volunteered to provide falcon

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reintroduction sites, and the sightings reported per year in the State, population has not been expanding Armendaris Ranch and areas including the Luna County appearance (Burnham et al. 2002; Jenny and immediately adjacent to known falcon of the first nest in either New Mexico or Heinrich 2004). In addition, the majority habitat in Luna County have been Arizona since 1952 (Service 2005). On of the breeding pairs in Chihuahua are surveyed on several occasions in recent May 8, 2002, two additional falcons clustered in close proximity to one years (Howard 2006a; Meyer and were observed that were thought to be another, but most are approximately 120 Williams 2005). Falcon surveys were different from the known nesting pair in to 135 miles away from the southern conducted in 2003 on the Gray Ranch in Luna County. However, only one New Mexico border (Howard 2006c). As southeastern New Mexico, which individual thought to be from that stated in the Recovery Plan for the contains 130,410 ha (322,000 ac) (Lewis potential second pair was present two falcon (1990), ‘‘Regardless of the status 2005). It includes extensive desert days later, and a second falcon nest was of the aplomado falcon in Mexico, an grasslands at its lower elevations. Bird never located anywhere in the NEP area attempt should be made to establish life is abundant on the Gray Ranch; 43 (Meyer and Williams 2005). In 2003 and populations in the United States. If percent of New Mexico’s avian species 2004, other than the Luna County release sites are carefully chosen, occur there and would provide an territory, no additional falcons were reestablished populations should be excellent prey base for falcons. The reported from formal surveys in New relatively free from pesticide Bureau of Land Management (BLM) Mexico (Meyer and Williams 2005). In contamination. Releases may facilitate office in Las Cruces and the New 2005 and through April 2006, there range expansion because pesticide Mexico Department of Game and Fish were nine sightings at locations in New contamination may have reduced the (NMDGF) have also recently sponsored Mexico apart from the Luna County ability of most populations to colonize formal surveys for falcons in suitable territory (Burkett 2005; Banwart 2006; new patches of suitable habitat. The habitats in the subspecies’’ historic Howard 2006b; Locke 2006). Only the potential for range expansion is now range in New Mexico (Howard 2006a; sighting on August 11, 2005, detected more promising as a result of recent Meyer and Williams 2005; Lister 2006a; more than one falcon. The two falcons brush control efforts in southern and Lister 2006c). Therefore, large areas of observed on that day did not exhibit coastal Texas and the discontinued use the southern New Mexico habitats most behaviors that indicated they were a of DDT.’’ capable of supporting individual or pair, and a photograph taken of one Recovery Efforts breeding pairs of falcons have been suggested it was a juvenile (Howard There are currently 46 pairs of formally surveyed for the presence of 2005a;b). Repeated follow-up by highly aplomado falcons in the captive falcons during the past 10 years, and the qualified, experienced falcon surveyors population, which produces more than results of these surveys follow. of four of these detections, including the 100 young per year. From this captive After a 50-year absence, an sighting of two birds, revealed that none population, 1,142 captive-bred falcons unsuccessful nesting attempt was of these falcons appeared to be local have been released in Texas (Juergens documented in Luna County, New residents or defending a territory and Heinrich 2005). The Peregrine Fund Mexico, in the spring of 2001 (Meyer (Griffin 2005b; Howard 2005b; Lister conducted a pilot release project in and Williams 2005). In 2002, a pair at 2006b; Lister 2006c; Locke 2006). Texas from 1985 to1989, and increased this location successfully fledged three Absolute numbers of falcons sighted in chicks. In 2003, only a single female restoration efforts began in 1993. These New Mexico are unknown because all releases have established at least 44 was seen in the area of the 2002 nest. but one sighting has been of unbanded In 2004, a pair of falcons was seen for pairs in southern Texas and adjacent birds. Montoya et al. (1997) and Macias- a short time at this location, but no Taumalipas, Mexico, where no pairs Duarte et al. (2004) banded a number of nesting was detected and this male left had been recorded since 1942 (Jenny et juvenile falcons in the Mexican State of in late May (Meyer and Williams 2005). al. 2004). Moreover, pairs of Chihuahua between 1996 and 2002. To In 2005, only a single female was reintroduced falcons began breeding in date, one juvenile bird banded in this observed at this site (Meyer 2005). In 1995, and to date have successfully study has been seen in New Mexico. It 2006, this breeding territory has been fledged more than 244 young (Juergens was observed on Otero Mesa in 1999 repeatedly surveyed, and no falcons and Heinrich 2005). Nests have been (Howard 2006a). In Arizona, the most were detected there from February located on a variety of structures, both recent documented occurrences of through May, although a falcon was artificial and natural. Predation by great- reported to be observed in a nearby area falcons were recorded in 1975 and 1977, horned owls, raccoons (Procyon lotor), in late May (Lister 2006c). with one unconfirmed sighting in and coyotes (Canis latrans) is Formal surveys and reliable sightings southern Arizona near the Mexican significant, affecting more than half of submitted to the Service show that a border in November 2005 (Howard all nesting attempts (Jenny et al. 2004). small number of falcons have occurred 2006a). These sightings in New Mexico Nesting productivity increased by in New Mexico, with a small number of and Arizona may represent falcons approximately 40 percent in 2003 and sightings occurring in every decade dispersing from the population in 2004, when falcons were provided since the 1960s (Williams 1997; Howard Chihuahua that were opportunistically artificial nesting structures with barred 2006a; Howard 2006b; Meyer and foraging in areas rich in prey due to sides arranged so that falcons can enter Williams 2005; Service 2005; Howe vegetative growth from precipitation the nest while predators cannot (Jenny 2006). Although it is a species highly (Howard 2005a). et al. 2004). Pairs of falcons in south sought after by bird watchers and other It has been noted that significant re- Texas successfully fledged young where naturalists, an average of only 2.5 colonization of habitats in Arizona and they had never been successful prior to sightings was reported per year during New Mexico by naturally occurring the use of the new artificial nests. the 1990s in New Mexico (Service birds in Chihuahua would likely take Beginning in 2002, falcons have also 2005). Despite increasing public decades, if it occurred at all, because the been released in west Texas under a interest, survey effort, and reporting reproductive rate of the falcons in Safe Harbor Agreement with The requirements (e.g., section 10 (a)(1)(A) Chihuahua has typically been low. The Peregrine Fund. In 2005, 138 falcons recovery permits), from 2000 through low reproductive rate is possibly due to were released at six sites on private 2005, this average only increased to 4.0 the effects of extended drought, and this ranches in the trans-Pecos region of the

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State, and of these, 116 successfully protection from the Act. Activities that mature,’’ (50 CFR 17.3). The term reached independence (Juergens and may affect falcons on Federal lands (or experimental population means ‘‘an Heinrich 2005). on non-Federal lands for projects using introduced and/or designated All of these releases in Texas have Federal permitting, funding, or population (including any off-spring occurred on private property under Safe authorization) would require section arising solely therefrom) that has been Harbor Agreement permits, currently 7(a)(2) consultation. Falcons released on so designated in accordance with the with an enrollment of more than private lands with Safe Harbor procedures of this subpart but only 728,000 ha (1.8 million ac). Safe Harbor Agreements that move to non-Safe when, and at such times as the Agreements are between a private land Harbor lands would receive the full population is wholly separate owner and the Service that permit protection of the Act. Actions that may geographically from nonexperimental future incidental taking of listed species take falcons on private lands would also populations of the same species’’ (50 on their private land. Releases have also be subject to the Act’s regulatory CFR 17.80). These definitions preclude occurred on Laguna Atascosa, requirements. We believe such an the possibility of population overlap as Matagorda Island, and Aransas National approach would be less efficient than a result of the presence of individual Wildlife Refuges in Texas. We believe establishing an NEP, would be difficult dispersing falcons, because by that it is also possible to accelerate the to regulate, and would ultimately definition, lone dispersers do not establishment of a breeding population provide less conservation benefit to the constitute a population or even part of in the Southwest through falcon than establishing an NEP. a population, since they are not in reintroductions of captive-raised birds The Secretary has broad discretion to ‘‘common spatial arrangement’’ in New Mexico. The experience in manage populations to better conserve sufficient to interbreed with other Texas, where the population went from and recover endangered species. The members of a population. Congress no known pairs in 1994, to 44 known term ‘‘experimental population’’ means defined ‘‘species,’’ consistent with its pairs that produced at least 244 young any population, including any of their broad conservation and recovery goals, by 2005, illustrates the rapidity with offspring, authorized by the Secretary to constitute distinct, interbreeding which a population can be established for release, only when the population is population segments or subspecies, not through reintroductions. wholly separate geographically from individual animals. By definition then, Despite the relative success of the nonexperimental populations of the an individual animal does not constitute falcon releases in Texas, we believe the same species. In the case of the falcon, a species, population, or population Safe Harbor Agreements used to release (1) This subspecies has been known to segment. In the case of the gray wolf, the falcons in Texas are not the best disperse up to 250 kilometers, (2) it Department of the Interior, exercising its mechanism for re-establishing falcons in would be virtually impossible to discretion under section 10(j), New Mexico and Arizona. Safe Harbor preclude naturally occurring individual reasonably interpreted the phrase Agreements can only be developed for falcons from intermingling with the ‘‘current range’’ to be the combined private land owners. There is a vast experimental population, and (3) there scope of territories defended by the amount of public land in New Mexico has been only one pair that has breeding pairs of an identifiable wolf and Arizona, totaling approximately 40 reproduced one time within the NEP pack or population (Wyoming Farm percent of the reintroduction area. area. Designation of a 10(j) NEP requires Bureau Federation v. Babbitt, 199 F.3d Therefore, public land is very important that the reintroduced animals be 1224 (10th Cir. 2000)). We have used the for recovery of the falcon in this area. ‘‘wholly separate’’ from any existing same approach for the falcon. Therefore, Not only is the public land important population. We do not consider the pair a population of falcons does not exist in because of its high percentage in the of falcons that bred in 2002 in Luna the NEP area. Breeding falcons are not reintroduction area, but it is important County to constitute a population. evenly distributed between the United because of its habitat characteristics. Therefore, the exclusion of the counties States border and the Chihuahuan group The historical range in the NEP area is surrounding the 2002 pair from the 10(j) of falcon pairs. There is a gap of Chihuahuan Desert grassland, and designation is not necessary. We approximately 222 km (138 mi) between public lands make up approximately 50 identify the experimental population as the Luna County pair in New Mexico percent of the Chihuahuan Desert all falcons found within the NEP area, and the most northern, known grassland compared to private land including reintroduced falcons and any Chihuahuan breeding pair in Mexico (Young et al. 2002). We believe there is lone dispersers and their offspring. We very low probability that falcons will believe this is the best manner by which (Howard 2006c). The single pair of New populate lands outside of their to manage the falcon reintroduction Mexico falcons that successfully historical range because those habitats program to achieve species recovery. reproduced only once in 2002 (after a would not be suitable for falcons. Thus The Act does not require the protection 50-year absence) is neither self- far, we have not detected falcons of individuals to the exclusion or sustaining, a group, nor in common inhabiting areas outside of their detriment of overall species recovery, or spatial relationship with the group of historical range. otherwise limiting the Department of approximately 25 to 35 breeding falcon Extensive grasslands that would the Interior’s flexibility and discretion pairs in Mexico. These Mexico falcons support individual or breeding falcons to define and manage an experimental occur 160 kilometers (km) (100 miles occur on Otero Mesa, White Sands population pursuant to section 10(j) (mi)) or more south of the United States Missile Range, southern Hidalgo County (Wyoming Farm Bureau Federation v. border. They are clustered in common (Gray Ranch), and the Armendaris Babbitt, 199 F.3d 1224 (10th Cir. 2000)). spatial relationship, are self-sustaining, Ranch/Stallion Range area (Howard That decision affirmed the Service’s and are interbreeding. 2006a). Approximately one-half of the determination of whether individual We do not consider the New Mexico Chihuahuan Desert grasslands in New wolves constituted a population. 2002 nesting pair and any offspring Mexico are federally managed, and often Regulations define ‘‘population’’ as a produced by the pair to be a population. intermingled with State and private potentially self-sustaining ‘‘group of fish Biologically, the term ‘‘population’’ is land. Falcons moving between Safe or wildlife in the same taxon below the not normally applied to a single pair, Harbor lands and non-Safe Harbor lands subspecific level, in common spatial and so the few birds sighted in New would receive different levels of arrangement that interbreed when Mexico could be considered dispersers

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from the Chihuahuan population. In of potentially suitable habitat successful release or a bird may be addition, we have no authority to surrounding a release site and its returned to the propagation facility in manage a population in a different proximity to other similar habitats; and Boise if it does not attain independence country. Therefore, the existence of a (6) with a willing landowner or land (Sherrod et al. 1987). group in Mexico should not preclude manager. Status of Reintroduced Population conservation and management of While the NEP area will include both falcons in the United States in order to Arizona and New Mexico, the Before authorizing the release of any achieve species recovery. Furthermore, reintroduction sites will only be on population, the Secretary shall two, or even three, birds are not lands within New Mexico. The State of determine, on the basis of the best considered a self-sustaining population. Arizona is supportive of having falcons available information, whether or not Self-sustaining populations require a re-established in the State under a 10(j) such a population is essential to the sufficient number of individuals to designation, but does not wish to continued existence of an endangered avoid inbreeding depression and conduct reintroductions. Reintroduction species or a threatened species. The occurrences of chance local extinction sites within the NEP area will be proposed experimental falcon (Caughley and Gunn 1996). selected to increase the distribution of population will be designated ‘‘non- Designation of an NEP under section the population and its rate of growth. essential, experimental’’ (NEP) because: 10(j) of the Act requires that the Selection will be based upon suitability (1) There are established populations in reintroduced animals be ‘‘wholly and extent of available habitat, as well Mexico and a rapidly expanding separate geographically’’ from any as any dispersal patterns from prior population in south Texas; (2) existing population. As stated above, we releases. Released falcons are expected reintroductions will continue in western do not consider the pair of falcons that to move around within the areas of their Texas; (3) the Boise, Idaho, captive bred in 2002 in Luna County, New release, but may disperse to more population is producing enough Mexico, to constitute a population. distant areas. The 10(j) designation and offspring to maintain the captive flock Therefore, the exclusion of the counties supporting 4(d) rule cover both private and provide falcons for release; and (4) surrounding the 2002 pair from the 10(j) and public lands in New Mexico and the possible failure of this action would designation is not necessary. Creating an Arizona, so Safe Harbor Agreements not appreciably reduce the likelihood of NEP area that excludes the counties will not be necessary with private survival of the subspecies in the wild. surrounding the documented New landowners. We also believe the NEP designation Mexico pair (Hidalgo, Grant, and Luna lessens land-use restrictions associated Reintroduction counties) would create a complex with the Act, which makes the regulatory situation. If falcons that are The rearing and reintroduction establishment of falcons in New Mexico released in the NEP area move into the techniques that will be used in and Arizona less controversial to private excluded area, then they would receive establishing this NEP have proven landowners and agency land managers, the full protection of the Act. Federal successful in establishing a wild and should result in more cooperative land managers in the NEP-excluded area population of falcons in southern Texas. falcon conservation efforts with may therefore be subject to the full Falcons will be raised in The Peregrine stakeholders and a larger number of regulatory requirements of section Fund’s captive propagation facility in release sites and more widespread 7(a)(2) for falcons that were released in Boise, Idaho. Newly hatched falcon reintroductions. Therefore, the use of the NEP area. If a falcon released in the chicks are fed by hand in sibling groups the NEP should be the fastest way to NEP area settles on private lands, the for up to 25 days. They are then raised both (1) successfully establish a falcon private land owner would be prohibited in sibling groups with minimal human population in New Mexico and Arizona, from any action that may incidentally exposure until their transportation to a and (2) aid in recovery and eventual ‘‘take’’ the falcon. We believe the reintroduction site at 32 to 37 days of delisting of the falcon. Thus, we have recovery of the falcon can be achieved age. Careful timing of the age for determined this experimental without imposing these regulatory reintroducing falcons is important to population to be nonessential to the restrictions on land managers and the increase their chances for successfully continued existence of the species public that excluding some counties fledging and reaching independence according to the provisions of section from the NEP area would require. (Sherrod et al. 1987). Falcons are 10(j) of the Act for the following shipped by air between Boise and the reasons: Reintroduction Sites release locations and driven to the hack (a) With at least three populations— Falcons historically occurred in site (i.e., release site). At the hack site, one in eastern Mexico, a second in Chihuahuan Desert grasslands within the falcons are placed in a protective northern Chihuahua, Mexico, and a the NEP area, and habitats in these areas box on top of a conspicuous tower and third becoming established in southern are similar to those that support nesting fed for 7 to 10 days. The box is then left Texas—the experimental population is falcons in northern Mexico populations. open and falcons are allowed to come not essential to the continued existence Primary considerations for identifying and go freely. Food is provided on the of the species. The threat of extinction falcon release sites include areas: (1) tower and, initially, the falcons return from a single catastrophic event has Within or in proximity to potentially each day to feed. Eventually, the falcons been reduced by a gradual increase of suitable habitat, including open begin chasing prey, making their own the southern Texas and captive grassland habitats that have scattered kills, and spending more and more time populations. Thus, loss of the trees, shrubs, or yuccas for nesting and away from the hack site. A falcon is experimental population will not perching; (2) supporting available prey considered to be ‘‘successfully released’’ appreciably reduce the likelihood of for falcons (e.g., insects, small to when it is no longer dependent on food falcon survival in the United States; medium-sized birds, rodents); (3) with provided at the hack site. This process and, minimal natural and artificial hazards generally takes from 3 to 6 weeks (Jenny (b) Any birds lost during the (e.g., predators, open-water tanks) and et al. 2004). The hack site attendants reintroduction attempt can be replaced potential hazards that can be minimized will evaluate the progress of the through captive breeding. Production where practical; (4) with access for released falcons. The reintroduction from the extant captive flock is already logistical support; (5) with a large extent process can be extended to ensure a sufficient to support the release of birds

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that would occur under this final rule, Location of Reintroduced Population Management in addition to continued releases in Section 10(j) of the Act requires that Because of the substantial regulatory west Texas (Juergens and Heinrich relief provided by NEP designations, we 2005). an experimental population be geographically separate from other do not believe the reintroduction of We fully expect that the NEP will populations of the same species. The falcons will conflict with existing result in the establishment of a self- NEP area covers all of New Mexico and human activities or hinder public use of the NEP area. The NEP designation will sustaining, resident population, which Arizona, with the expectation that not require land managers to will contribute to the recovery of the falcons would persist only within the specifically manage for reintroduced species. We expect these Chihuahuan Desert, which extends falcons. When NEPs are located outside reintroductions to be compatible with north from Mexico into southern Texas, a National Wildlife Refuge or unit of the current or planned human activities in southern New Mexico, and southeastern the NEP area (Burnham et al. 2002). National Park System, we treat the Arizona. The NEP area is geographically population as proposed for listing and There has been only one reported isolated from existing falcon conflict between human activities and only two provisions of section 7 would populations in Mexico and Texas by a apply: section 7(a)(1) and section falcons in Texas, where 1,142 falcons sufficient distance to preclude have been released over the course of 20 7(a)(4). In these instances, NEPs provide significant contact between populations. additional flexibility because Federal years (Burnham et al. 2002; Bond 2005; There have been no documented nesting Jenny 2005; Robertson 2006). That issue agencies are not required to consult falcons in Arizona and only one known with us under section 7(a)(2). Section involved the use of agricultural successful nest in New Mexico in over 7(a)(1) requires Federal agencies to use pesticides in proximity to falcon 50 years. However, we do not believe their authorities to further the reintroduction sites in Texas in the early the presence of these falcons constitutes conservation of listed species. Section 1990s, and a viable resolution of the a population, as stated in the ‘‘Recovery 7(a)(4) requires Federal agencies to conflict was obtained. The Service will Efforts’’ section above. confer (rather than consult) with the use the best scientific and commercial It is difficult to predict where Service on actions that are likely to data available, including, but not individual falcons may disperse jeopardize the continued existence of a limited to, results from the monitoring following reintroduction within the NEP proposed species. The results of a plan developed with this rule and area. A 70-day-old male falcon conference are advisory in nature and stakeholder meetings to prepare 5-year dispersed 136 km (84.5 mi) from a hack do not restrict agencies from carrying evaluations of the reintroduction site in Texas (Perez et al. 1996), and a out, funding, or authorizing activities. program. If the actions carried forward falcon banded in Chihuahua, Mexico, The Service, The Peregrine Fund, as a result of this final rule fail to was observed 250 km (155 mi) north in Turner Endangered Species Fund, the demonstrate sufficient success toward New Mexico (Burnham et al. 2002). States of New Mexico and Arizona, recovery, as determined by the Service, Perez et al. (1996) placed radio BLM, Department of Defense (DOD), and then the Service, in coordination with transmitters on 14 falcons in Texas and other cooperators will manage the other Federal land managers, the States found that their home range size varied reintroduction. They will closely of Arizona and New Mexico, and private widely, from 36 to 281 square km (km2) coordinate on reintroductions, collaborators, would reevaluate (14 to 108.5 square mi (mi2)). Natal monitoring, coordination with management strategies. dispersal may be localized (Burnham et landowners and land managers, and Although there are still questions to al. 2002). Designation of a large NEP public awareness, among other tasks research while these reintroductions area around planned release sites takes necessary to ensure successful proceed, the success of the southern into consideration the potential reintroductions of falcons. Texas reintroductions suggests that this occurrence and dispersal of falcons in a (a) Monitoring: The Service has developed a monitoring plan specific to effort will have similar positive results large geographic area. Any falcon found this NEP and associated release efforts for the recovery of the falcon. Based on within the NEP area will be considered (see ADDRESSES section). Falcons will be that experience, we have good reason to part of the NEP. observed every day before they are believe that appropriately managed It is possible, though unlikely, that released. Facilities for release of the captively reared birds are suitable for individual captive-bred falcons or their birds will be modeled after facilities release into the wild and can survive progeny from west Texas could disperse used for falcons in Texas. Information and successfully reproduce. Although into the NEP area. The majority of on survival of released birds, prey-base biomass may be lower falcon reintroductions in west Texas are movements, behavior, reproductive throughout the NEP area than in further than 193 km (120 mi) from success, and causes of any losses, will southern Texas, the prey-base biomass suitable habitat in New Mexico, and tall be gathered during the duration of the in the NEP area is similar to occupied mountains separating the two regions reintroduction program. Program habitat in Chihuahua, Mexico (Truett may provide an obstacle to falcon progress will be summarized and 2002). Furthermore, the establishment migration. The Guadalupe Mountains reported annually at stakeholder of a third self-sustaining population in span the border between Texas and New meetings. As described above, we plan the United States provides further Mexico and rise to heights of 8,749 feet. to evaluate the progress of the program assurance that the species will recover Falcon reintroductions in west Texas every 5 years. here. For example, if the southern Texas only began in 2002, and as expected, (b) Disease: (see information population was significantly impacted there has not yet been any documented previously provided in our February 9, by a catastrophic event, such as a Gulf breeding by these reintroduced falcons. 2005, proposed rule). coast hurricane, the NEP in New Mexico Furthermore, there have been no (c) Genetic Variation: The captive and the reintroduced falcons in western detections in New Mexico of falcons breeding population of falcons is Texas would provide buffers for the that were banded at west Texas managed by The Peregrine Fund to species in the wild while the southern reintroduction sites, and all of those maintain and maximize genetic Texas population recovered. reintroduced falcons should be banded. diversity (Burnham et al. 2002). This

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population was derived from nestlings area (Burnham et al. 2002; Bond 2005; closely with State and Federal agencies collected from robust populations in Jenny 2005). Intentional take such as and/or landowners to suggest alternative Chiapas, Tabasco, and Veracruz, shooting, knowingly destroying a nest, procedures to minimize conflicts. The Mexico. Genetic testing was conducted or knowingly harassing falcons from an States of Arizona and New Mexico are to insure that progeny from falcons active nest for purposes other than not directed by this final rule to take collected in southeastern Mexico would authorized data collection, will not be any specific actions to provide any be suitable for release in northern permitted. special protective measures, nor are Mexico and the United States, where the (e) Special Handling: (See information they prevented from imposing subspecies had been extirpated. Results previously provided in our February 9, restrictions under State law, such as from both mitochondrial DNA and 2005, proposed rule). protective designations and area microsatellite variation were analyzed, (f) Coordination with Landowners and closures. Neither of the States within and revealed no genetic divergence Land Managers: The Service and the NEP area, both of which are between samples that would indicate cooperators identified issues and participants in the northern aplomado any problems from reintroducing this concerns associated with falcon falcon working group, has indicated that lineage into the Chihuahuan grasslands reintroductions through the National it would propose hunting restrictions or of the United States (Kiff, in litt., 1995; Environmental Policy Act (NEPA) closures related to game species because Mindell, in litt., 1997; Burnham et al. scoping and two public comment of the falcon reintroduction. 2002). This finding is consistent with periods. The reintroductions have also The principal activities on private the known dispersal tendencies of been discussed with potentially affected property near the initial release areas falcons and the fact that these State agencies and some private are agriculture, livestock production, populations are recognized as the same landowners wishing to have falcons and hunting. We do not believe that use subspecies of northern aplomado falcon released on their property. Affected of these private properties by falcons (Falco femoralis septentrionalis). State agencies, landowners, and land will preclude such private uses because (d) Mortality: For purposes of section managers have indicated support for the these activities and the falcons’ needs 9 of the Act, a population designated as reintroduction, provided the falcon do not conflict with each other. These experimental is treated as threatened, experimental population is established same human uses are occurring near regardless of the species’ designation as a NEP, and land-use activities in the falcon reintroduction sites in south elsewhere in its range. Therefore, for NEP area are not constrained without Texas. As stated above, there has been purposes of section 9 of the Act, the consent of affected landowners. only one reported conflict between northern aplomado falcons within the (g) Potential for Conflict with Military, human activities and falcons in Texas, NEP will be treated as threatened Industrial, Agricultural, and where 1,142 falcons have been released wherever they are found. A threatened Recreational Activities: With proper over the course of 20 years (Burnham et designation allows us greater discretion management, we expect falcon al. 2002; Bond 2005; Jenny 2005; in devising management programs and reintroductions to be compatible with Robertson 2006), and that issue, which special regulations for such a current and planned human activities in involved the use of pesticides, was population. the NEP area, including agricultural, oil resolved in the early 1990s. The Act defines ‘‘incidental take’’ as and gas development, military, or Reintroduced falcons may disperse take that is incidental to, and not the recreational activities. There has been into other parts of the NEP area or even purpose of, the carrying out of an only one reported conflict between outside the NEP area. We believe that otherwise lawful activity such as human activities and falcons in Texas, the frequency of movements outside the military training, livestock grazing, where 1,142 falcons have been released NEP area is likely to be very low based recreation, and other activities that are over the course of 20 years (Burnham et on the history of falcon reintroduction in accordance with Federal, tribal, State, al. 2002; Bond 2005; Jenny 2005; in Texas (Burnham et al. 2002), and the and local laws and regulations. A Robertson 2006), and that issue was fact that the NEP area is large, spanning person may take a falcon within the resolved in the early 1990s. Well- two entire States, while the NEP area provided that the take is managed activities on private, State, and reintroduction area is a relatively small unintentional and was not due to some Federal lands within the NEP area portion. Any falcons outside the NEP knowing, intentional, or negligent should continue without additional area will be considered endangered conduct. Unintentional take will be restrictions during implementation of under the Act. Any falcons that occur considered ‘‘incidental take,’’ and is falcon reintroduction activities. As within the NEP area will be considered authorized under this final rule via a required by section 10(j) of the Act, part of the NEP and will be subject to special rule under section 4(d) of the when the NEP is located within a the protective measures in place for the Act. Although a special rule under National Wildlife Refuge or National NEP. The decreased level of protections section 4(d) of the Act can contain the Park, for section 7 consultation afforded to falcons that cross into the prohibitions and exceptions necessary purposes we will treat the reintroduced NEP is not expected to have any and appropriate to conserve that falcons as threatened under the Act, and significant adverse impacts to the wild species, regulations issued under therefore the consultation requirements population, since we do not anticipate section 4(d) for NEPs are usually less of section 7(a)(2) will apply on these this to occur very often. restrictive with regard to human Federal lands. If proposed agricultural, (h) Protection of Falcons: We will activities in the reintroduction area. oil and gas development, military, or reintroduce falcons in a manner that Thus, take of falcons which is not recreational activities may affect the provides short-term protection from intentional and is incidental to falcon’s prey base within reintroduction natural predators and human-related otherwise lawful activity will be areas, State and/or Federal biologists sources of mortality. Reintroduction permitted. Applying the results can determine whether falcons could be methods designed to discourage obtained from the reintroductions in impacted and, if necessary, work with predators include tall hacking towers as south Texas, we expect levels of the other agencies and stakeholders in artificial nests and full-time biologists to incidental take to be low since the an attempt to avoid such impacts. If feed and protect the young falcons and reintroductions should be compatible private activities impede the reduce natural mortality. Reintroducing with existing land use practices in the establishment of falcons, we will work falcons in areas with less human

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activity and development will minimize We do not consider the presence of (59 FR 34270), we solicited opinions human-related sources of mortality, the successful breeding pair in 2002 in from six expert ornithologists who are such as from collisions. Should causes Luna County to represent a population. familiar with this species to peer review of mortality be identified, we will work The frequency and number of falcons in the proposed rule. Three of the six peer with the private landowners or agency recent New Mexico sightings would, at reviewers submitted comments; the land managers to try to correct the that pace, be very unlikely to result in others did not. Their comments are problem. natural recolonization. Although there included in the summary below. (i) Potential for Conflict with Natural may be occasional falcon dispersal We reviewed all comments received Recolonization of Falcons: Natural (i.e., movements from Mexico to New from the peer reviewers, State agencies, unaided) falcon recolonization of New Mexico, we do not believe this will lead and the public for substantive issues Mexico and Arizona would be to the establishment of a viable and new information regarding the dependent on dispersing falcons from population within New Mexico. The proposed NEP. Substantive comments Mexico, Texas, or possibly unknown population in Mexico has been known received during the comment period nesting pairs within the United States. to exist since 1992, and likely existed have either been addressed below or We do not consider the unaided prior to that; however, there has only incorporated directly into this final rule. recolonization of falcons in the NEP been one known successful nest in the The comments are grouped below as area a likely occurrence for a number of entire NEP area in over 50 years. Given either peer review, State, or public reasons. The half-century absence of the lack of a falcon population in the comments. reintroduction area, and the low falcons in Arizona and New Mexico Peer Review Comments indicates that the Chihuahua, Mexico, probability that falcons from (1) Comment: While a small falcon population is not likely to Chihuahua, Mexico, can recolonize New population of falcons exists in recolonize New Mexico and Arizona Mexico, we believe that reintroductions southeastern Chihuahua, Mexico, there with sufficient numbers to establish a are needed in order to establish a is very little evidence of a tendency population in the foreseeable future. resident falcon population in the towards natural reestablishment in the The low fledging success in Chihuahua grasslands in the United States. United States. Despite arguments to the and lack of significant expansion of that (j) Public Awareness and Cooperation: contrary, the occasional appearance of a population since observations first We will inform the general public of the vagrant or a nesting pair does not began in 1992 (Montoya et al. 1997; importance of this reintroduction project in the overall recovery of the forecast reestablishment and certainly Marcas-Duarte et al. 2004; Young et al. falcon. This designation will provide not the existence of a viable population. 2004; Juergens and Heinrich 2005) greater flexibility in the management of Our Response: We agree with the suggest that birds from Chihuahua are reintroduced falcons. NEP designation commentor that any significant natural not likely to provide enough dispersers is necessary to secure needed re-colonization of habitats in Arizona to populate New Mexico. Furthermore, cooperation of the States, landowners, and New Mexico would likely take the only birds that are known to be Federal agencies, and other interests in decades, if it occurred at all, because the currently nesting in southern Texas are the NEP area. For reasons stated, despite reproductive rate of the population in beyond the average dispersal distance the relative success of the falcon Mexico is low, and this population is for falcons. Natal dispersal to eventual releases in Texas, where there is not significantly expanding, possibly breeding sites may be localized relatively little public land, we believe due to extended drought (Burnham et al. (Burnham et al. 2002). The longest the Safe Harbor Agreements used to 2002). known falcon dispersal distance is 250 release falcons in Texas are not the best (2) Comment: Aplomado falcons are km (155 mi) (Burnham et al. 2002), mechanism for establishing falcons in colonizing New Mexico and Arizona on whereas the straight-line distance from New Mexico and Arizona. Safe Harbor their own, as part of a natural range currently breeding falcons near Agreements can only be developed for expansion. Brownsville, Texas, to Carlsbad, New private land owners, and the Our Response: Aplomado falcons are Mexico, is approximately 973 km (605 reintroduction area in New Mexico not likely to naturally recolonize in mi), much further than any documented includes a vast amount of public land. significant numbers. Please see our dispersal by falcons. response to comment 1 and information It is possible, though unlikely, that Summary of Comments and under section 2 (‘‘Biological’’) of the individual captive-bred falcons or their Recommendations Background section, above. progeny from west Texas could disperse We requested written comments from (3) Comment: Designation of an into the NEP area. The majority of the public on the proposed NEP and experimental population would hinder falcon reintroductions in west Texas are draft environmental assessment in the policy protections for naturally farther than 193 km (120 mi) from proposed rule published on February 9, colonizing birds. suitable habitat in New Mexico, and tall 2005 (70 FR 6819). We also contacted Our Response: Birds that naturally mountains separating the two regions the appropriate Federal, State, and local recolonize areas in New Mexico will may provide an obstacle to falcon agencies, tribes, scientific organizations, have reduced protections under the migration. The Guadalupe Mountains and other interested parties and invited NEP; however, birds are not likely to span the border between Texas and New them to comment on the proposed rule. naturally colonize in significant Mexico and rise to heights of 8,749 feet. The initial comment period was open numbers. Thus, the benefits to falcon Falcon reintroductions in west Texas from February 9, 2005, to April 11, recovery of having large numbers of only began in 2002, and as expected, 2005. A second comment period was birds reintroduced is much greater than there has not yet been any documented open from September 16, 2005, through the potential effect of reducing breeding by these reintroduced falcons. November 15, 2005, to solicit comments protection for very few naturally Furthermore, there have been no on the draft monitoring plan and to colonizing individuals. In addition, all detections in New Mexico of falcons announce the dates, locations, and times falcons will still be protected from that were banded at west Texas of the public hearings (70 FR 54701). direct intentional taking (e.g., hunting of reintroduction sites, and all of those In conformance with our policy on falcons), and we anticipate little conflict reintroduced falcons should be banded. peer review, published on July 1, 1994 with most otherwise lawful activities

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occurring in the NEP (e.g., grazing that Our Response: The incremental rule are more beneficial to long-term uses best management practices). There designation proposal would likely not falcon conservation than designation of has been only one reported conflict, increase recovery benefits to the falcon critical habitat. which was resolved in the early 1990s, for two reasons. First, falcons have the (8) Comment: The proposed rule between human activities and falcons in capability to move about the landscape violates the ecosystem protection Texas, where 1,142 falcons have been easily and there would likely be purposes identified in section 2(b) of the released over the course of 20 years frequent movements between NEP areas Act. (Burnham et al. 2002; Bond 2005; Jenny and areas without this designation Our Response: We believe that 2005; Robertson 2006). The areas that within New Mexico. Therefore, the releasing falcons under the section 10(j) falcons inhabit on private lands with suggested scenario would create a very provision of the Act is the most Safe Harbor Agreements in Texas are complicated regulatory patchwork, as appropriate way to achieve conservation more densely populated by people than the same falcons move into and out of for this species, which has shown a the public lands in New Mexico. NEP areas, and thereby became subject remarkable ability to coexist with many Therefore, if conflicts are occurring, to changed regulations under the Act. human activities, and that this action is they would be detectable in Texas, and Second, we do not anticipate that consistent with the intents and purposes we have had no reported conflicts after falcons will require the protections of of the Act. Falcon reintroductions are the one in the early 1990s. full endangered status in order to intended to return a missing predator to (4) Comment: One peer reviewer recover in New Mexico and Arizona. We the grassland ecosystems to which it summarized the proposal as believe that designating both States as naturally belongs, and this should ‘‘biologically sound, politically tenable, NEP areas relieves concerns of benefit ecosystem functioning. but ethically irresponsible.’’ The landowners and managers regarding (9) Comment: Does the 10(j) rule reviewer asserts that limited recovery land-use restrictions, and will lead to remove all section 7 responsibilities? Our Response: For the purposes of funds should be spent on higher priority more sites for reintroductions and faster section 7 of the Act, we treat NEPs as species (i.e., species with lower recovery for the subspecies. recovery priority numbers under the threatened species when the NEP is Service’s Recovery Priority Guidelines). Public Comments located within a National Wildlife Our Response: As we stated in the Refuge or a unit of the National Park Issue 1: Procedural and Legal System, and therefore section 7(a)(1) Recovery Priority Guidelines, ‘‘the Compliance priority systems presented must be and the consultation requirements of viewed as guides and should not be (7) Comment: The Service should section 7(a)(2) of the Act apply in these looked upon as inflexible frameworks designate critical habitat for the falcon, units. When NEPs are located outside a for determining resource allocations (48 rather than designating a 10(j) National Wildlife Refuge or unit of the FR 43098).’’ Many other factors, population. If you finalize the proposed National Park System, for the purposes including landowner cooperation, rule, then a critical habitat designation of section 7 of the Act we treat the likelihood of success of projects, public would be precluded and little to no population as proposed for listing and cooperation, and partner contributions, regulatory protections would remain for only two provisions of section 7 would may play into the decision to focus on occupied or unoccupied habitat. apply: Section 7(a)(1) and section specific species or actions. The falcon Our Response: The role that 7(a)(4). In these instances, NEPs provide reintroductions discussed in this rule designation of critical habitat plays in additional flexibility because Federal are supported by all of these factors. protecting habitat of listed species, agencies are not required to consult (5) Comment: Restoration of the however, is often misunderstood. There with us under section 7(a)(2). Section falcon should occur within the natural are significant limitations on the 7(a)(1) requires Federal agencies to use predator community of the regulatory effect of designation under their authorities to further the reintroduction area. Native predators ESA section 7(a)(2). In brief, (1) conservation of listed species. Section (e.g., great-horned owls) should not be Designation provides additional 7(a)(4) requires Federal agencies to killed to protect released falcons. protection to habitat only where there is confer (rather than consult) with the Our Response: The release protocols a Federal nexus; (2) the protection is Service on actions that are likely to have been modified over time and relevant only when, in the absence of jeopardize the continued existence of a include carefully chosen nest sites and designation, destruction or adverse proposed species. The results of a use of nest boxes to minimize conflict modification of the critical habitat conference are advisory in nature and with natural predators. The Service has would in fact take place (in other words, do not restrict agencies from carrying no intention of killing native predators other statutory or regulatory protections, out, funding, or authorizing activities. to benefit falcon releases. policies, or other factors relevant to (10) Comment: One commenter noted agency decision-making would not that if the proposed rule is finalized, the State Comments prevent the destruction or adverse falcon would be treated as a species (6) Comment: In general, the States of modification); and (3) designation of proposed for listing on BLM or DOD Arizona and New Mexico supported the critical habitat triggers the prohibition lands. The agencies would only be proposed rule. One State agency of destruction or adverse modification required to confer on actions that may suggested we develop a 10(j) population of that habitat, but it does not require jeopardize the species. If the population that would also allow for naturally specific actions to restore or improve is deemed nonessential, the jeopardy occurring falcons (i.e., experimental habitat. threshold would never be reached, status individuals will only be We believe it is not likely that falcons indicating that conferences would be an recognized outside areas that overlap will naturally recolonize areas in administrative task with no protection with naturally occurring individuals) Arizona and New Mexico in the near for the falcon. The Service should (50 CFR 17.80). Such a rule could also future even though there is ample recognize that the BLM would no longer include zones for incremental State- suitable habitat to support falcons. consult on many activities previously wide expansion of the 10(j) population Because there is available habitat, but considered to be significant threats to based upon an annual review by the virtually no naturally occurring falcons, falcon habitat such as oil and gas Service and stakeholders. we believe that releases under a 10(j) development, livestock grazing, military

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operations, or pesticide use. In fact, control) be handled under section 7 in Our Response: We will attempt to under the current nonessential the 10(j) area? work with both land managers and experimental population proposal, the Our Response: These actions will be allotment permit holders; however, we BLM could authorize a road or pipeline handled like any other projects subject do not have authority over allotment that destroys an occupied falcon nest to section 7 in the NEP area. Please see permit holders or authority to require without the need for an incidental take our response to comment 9 above. land managers to seek allotment permit permit. (12) Comment: One commenter was holder approval of various projects. Our Response: Consultation under concerned that lessees and allotment section 7(a)(2) is only required for holders have to remove cows from Issue 2: Biological Issues Federal projects that may affect listed allotments during nesting season. (16) Comment: Many commenters species. It is unlikely that a Federal Our Response: In our experience with recommended that we omit the action would affect a significant number reintroducing falcons in south Texas, reference to a specific numbers of pairs, of falcons at the present time because livestock grazing using best increase the number of pairs, and/or the recent falcons sighted in New management practices has been clarify the definition of ‘‘population’’ Mexico appear to be transients and there compatible with successful nesting by we used in the 10(j) proposed rule due is a near absence of any falcon sightings falcons. It is possible that the conference to the lack of scientific agreement on in Arizona. Therefore, designating the opinions for grazing on Federal lands defining this term. That definition was, reintroduced population as non- would recommend additional grazing ‘‘a minimum of two successfully essential will not significantly change guidelines; however, these measures are reproducing falcon pairs over multiple current practices regarding consultation not mandatory, and it would be up to years.’’ One commenter suggested that under 7(a)(2), on areas outside of the the Federal agency and lessee or we instead define a population as National Wildlife Refuge and National allotment holders to implement at their ‘‘sustained and predictable presence of Parks. Since the falcon will now be discretion. more than negligible numbers of (13) Comment: The final rule should treated as a species proposed for listing, successfully reproducing individuals confirm that military operations (e.g., sections 7(a)(1) and 7(a)(4) will apply to over a period of many years.’’ low-level overflight, bombing and Federal actions. Our Response: We have clarified the The falcon will be treated as a gunnery activities, target placement) definition of ‘‘population’’ used in the threatened species on BLM and DOD will not be affected by the 10(j) proposed rule in the ‘‘Recovery Efforts’’ lands for purposes of section 9 of the designation, even if occurring over section of the Background. Act. Through section 4(d) of the Act, we National Park Service or National have greater discretion in developing Wildlife Refuge lands. (17) Comment: Naturally occurring management programs and special Our Response: As stated in our falcons already exist on the landscape in regulations for threatened species than response to comment 9, if aplomado New Mexico and adjacent northern we have for endangered species. Section falcons are found within a National Chihuahua, Mexico (e.g., see Young et 4(d) of the Act allows us to adopt Wildlife Refuge or unit of the National al. 2002, 2004; Meyer and Williams whatever regulations are necessary to Park System and there may be impacts 2005). There have been about 45 provide for the conservation of a from military activities, section 7 credible sightings of falcons in New threatened species. consultation may be required. Any Mexico since 1990, within 3 to 6 While it is true that consultation military operations that may affect the credible observations per year since the requirements are lessened, we believe 10(j) falcons would only involve late 1990s. The territory in Luna that the incidental take associated with conferencing with the military and County, New Mexico, has been otherwise lawful activities will not pose recommended actions, if any, would be occupied from 2000 to 2005. Falcons a long-term threat to falcon conservation at the discretion of the military to have also recently been observed under this rule, as most activities that implement. crossing the United States-Mexico occur in the 10(j) area are compatible (14) Comment: In order to streamline border. The Service has not considered with falcon recovery. Furthermore, future conference opinions, the final all of this new information. Therefore, a Federal agencies will continue to rule should provide authorization to 10(j) rule does not seem to be a analyze the impacts of their actions Federal agencies to permit habitat reasonable approach for falcon recovery. under NEPA. In addition, birds will destruction. Our Response: In the ‘‘Recovery continue to be reintroduced into New Our Response: Section 10(j) of the Act Efforts’’ section of the Background, we Mexico, which will provide some buffer explicitly states that for the purposes of clarify the reasons why we do not to the population against individual section 7, the species designated as non- believe that a falcon population exists in birds lost to incidental take. A special essential will be considered a proposed Arizona and New Mexico. In the case of rule under section 4(d) of the Act is species. Federal agencies will have an the falcon, (1) This subspecies has been included in this final action, and it obligation to confer (rather than consult) known to disperse hundreds of authorizes unknowing or incidental take with the Service on proposed activities kilometers, (2) it would be virtually of falcons (i.e., take that is incidental to that are likely to jeopardize the impossible to preclude naturally an otherwise lawful activity). Direct take continued existence of the falcon. The occurring individual falcons from for research or educational purposes results of a conference are advisory in intermingling with the experimental would require a section 10 recovery nature and do not restrict agencies from population, and (3) there has been only permit. Knowing take (e.g., shooting) or carrying out, funding, or authorizing one known pair that has reproduced take due to negligence will not be activities. (and only one time) in over 50 years permitted. Additional information about (15) Comment: The Service should within the designated experimental the special rule can be found under the clarify the terms ‘‘willing landowner or area. Therefore, we identified the Final Regulation Promulgation section manager’’ as they relate to one of the experimental population as all falcons below. criteria in the selection of release sites. found within the experimental area, (11) Comment: How will beneficial The term ‘‘manager’’ should also refer to including reintroduced falcons and any activities (e.g., prescribed fire, fencing, an allotment permit holder in the case lone dispersers and their offspring. We bank stabilization, storm water runoff of Federal or State lands. believe this is the best manner by which

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to manage the falcon reintroduction to falcon migration. The Guadalupe any sustained successful reproduction program to achieve species recovery. Mountains span the border between appeared to be consistent with the (18) Comment: In the proposed rule, Texas and New Mexico and rise to purposes of a 10(j) population. The there is an inaccurate statement that the heights of 8,749 feet. Falcon same logic should be applied to present proposed nonessential experimental reintroductions in west Texas began in rulemaking. population is geographically isolated 2002, and as expected, there has not yet Our Response: We agree and from existing falcon populations in been any documented breeding by these discussed this court decision in the Mexico and Texas by a sufficient reintroduced falcons. Furthermore, ‘‘Recovery Efforts’’ section of the distance to preclude contact between there have been no detections in New Background, and in our responses to populations. In fact, New Mexico is Mexico of falcons that were banded at comments 17, 18, and 19. easily within the documented flying west Texas reintroduction sites, and all (22) Comment: The proposed rule is (i.e., dispersal) distance of these falcon of these reintroduced falcons should be not consistent with Service policy on populations. banded. 10(j) populations published in the Our Response: Even though falcons (19) Comment: The Service Federal Register (49 FR 33885). As from Mexico may enter New Mexico speculated about falcon numbers in discussed in the policy, the proposal occasionally, the 10th Circuit Court in New Mexico without conducting ‘‘cannot reduce protections for native the wolf case (Wyoming Farm Bureau comprehensive surveys of potential fish, wildlife, and plants that expand Federation v. Babbitt) supported the use falcon habitat. Additional falcons naturally into areas designated as of the 10(j) designation under very probably would be documented with experimental (49 FR 33885).’’ The similar circumstances of occasional, low additional surveys. proposed rule appears to be a short-cut frequency contact. In over 50 years, we Our Response: Over the past decade, around natural falcon recovery that know of only one pair of successfully widespread formal surveys have been eliminates meaningful habitat reproducing falcons in New Mexico. conducted in suitable falcon habitats in protections with voluntary This one occurrence does not indicate southern New Mexico. Please refer to unenforceable measures. that there is self-sustaining, regular the discussion on survey results under Our Response: Please see our interbreeding occurring between falcons the Biology portion of the Background responses to comments 17, 18, and 19. in New Mexico and those in Mexico. section. (23) Comment: It is not appropriate to The single pair of falcons that (20) Comment: There is no conclude that in the long-term the successfully reproduced once in 2002, justification for releasing such a large Chihuahua population of falcons would after a 50-year absence, is not self- number of falcons in New Mexico, not be able to produce dispersing sustaining, not a group, and not in especially given the current increasing falcons under improved conditions. common spatial relationship with the status of native birds and finite amount Please consider evaluating Macı´as- group of approximately 25 to 35 of suitable habitat. Duarte (2004) and Jenny et al. (2004) in breeding falcon pairs in the Mexican Our Response: Young et al. (2005) relation to Burnham et al. (2002) and State of Chihuahua, 160 km (100 mi) indicated that there are approximately Montoya et al. (1997). south of the United States border. These 9,060 km2 (5,600 mi2), or 906,000 ha Our Response: We evaluated the Mexican birds appear to be self- (2,238,766 ac), of suitable habitat in results in Macı´as-Duarte (2004), Jenny et sustaining and interbreeding, even New Mexico. We believe there is al. (2004), Young et al. (2004), and though the population is not expanding. sufficient suitable habitat for falcon Juergens and Heinrich (2005), and did In addition, there is a significant gap recovery in New Mexico. Montoya not find information that would indicate between the location of the pair in the (1995) estimated that 1 falcon pair that the population in Chihuahua has United States and the most northern required 4,300 ha (10,625 ac) in significantly expanded since its breeding pair in Chihuahua, and even Chihuahua, Mexico. If this size discovery in 1992. We found that there more distance to the main cluster of requirement for nesting territory also appears to be general agreement among breeding pairs there. Please also see the applies to the estimated quantity of the authors that the number of pairs has ‘‘Recovery Efforts’’ section of the suitable habitat in New Mexico, the been fairly stable and that, in most Background for additional discussion on State could support up to 200 pairs of years, productivity of the pairs has been this subject. falcons. Much of this suitable habitat low. Furthermore, we have no authority The only birds that are known to be occurs in Otero Mesa, Fort Bliss, White to improve conditions for the falcons in currently nesting in Texas are beyond Sands Missile Range, the Jornada Plain Mexico. Recolonization has not the average dispersal distance for (Armendaris Ranch and Jornada del occurred in New Mexico since the birds falcons. Natal dispersal to eventual Muerto), and the southwestern corner, were discovered in Chihuahua, and breeding sites may be localized or boot-heel, of New Mexico south of there is no indication that (Burnham et al. 2002). The longest Interstate 10. Although releases will recolonization is occurring now, with documented falcon dispersal distance is occur only in New Mexico, falcons will only one known pair successfully 250 km (155 mi) (Burnham et al. 2002). likely colonize suitable habitat in reproducing one time in 2002 in New A straight-line distance from breeding southeastern Arizona, further increasing Mexico. falcons near Brownsville, Texas, to the number of falcons inhabiting (24) Comment: All released falcons Carlsbad, New Mexico, is 973 km (605 Chihuahuan Desert grasslands (Montoya should be marked to ensure that mi), much farther than any documented 1995). dispersal of birds does not trigger falcon dispersal. It is possible, though (21) Comment: The Tenth Circuit additional regulations to public and unlikely, that individual captive-bred Court of Appeals found that Congress private lands. falcons or their progeny from west gave the Service considerable discretion Our Response: In order to ascertain Texas could disperse into the NEP area. in defining the term ‘‘experimental the success of the reintroduction effort, The majority of falcon reintroductions population’’ as it related to the The Peregrine Fund will annually in west Texas are farther than 193 km establishment of an experimental survey the area surrounding releases to (120 mi) from suitable habitat in New population of wolves in the northern locate surviving birds. Falcons will be Mexico, and tall mountains separating Rockies. In that case, the occasional located and identified and the number the two regions may provide an obstacle presence of individual animals without of territorial pairs will be recorded. If

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nesting is documented, then nest (28) Comment: Please explain why the (30) Comment: Nonessential success will be assessed and as many Service does not support the selection of experimental populations are usually chicks will be banded as possible. All the alternative that implements Safe considered where there is opposition released falcons and their progeny will Harbor Agreements for the falcon. This from private landowners to an be banded to the extent possible. The would achieve landowner cooperation, endangered species reintroduction. The Peregrine Fund will coordinate with the achieve species recovery, and continue majority of potential falcon habitat in Service to develop a banding plan that habitat protections. New Mexico is managed by the Forest complements banding efforts in Mexico Our Response: Please refer to the Service, BLM, and DOD. You have not and Texas. The NEP designation will discussion found in the ‘‘Recovery demonstrated in the proposed rule or cover any falcon in Arizona or New Efforts’’ portion of the Background environmental assessment (EA) that Mexico. Therefore, no additional section. there is opposition by private regulations will be triggered whether a (29) Comment: Explain why the landowners or the general public to a falcon is banded or unbanded. If a population of reintroduced falcons reintroduction on the small amount of falcon should leave the NEP area, it would not be essential to the continued private lands. Even if there were, a would be considered fully endangered existence of the species. reintroduction program could under the Act, unless it is found in a Our Response: The proposed accomplish the same objectives by using location where another designation experimental falcon population will be Safe Harbor Agreements for the private exists or there is a Safe Harbor designated NEP because: (1) There are landowners, as was accomplished in Agreement in place. established populations in Mexico and south Texas. (25) Comment: The Service should a rapidly increasing population in south Our Response: Comments received describe that a mixed designation which Texas; (2) reintroductions will continue during the public comment periods includes both experimental and in west Texas; (3) the Boise, Idaho, from public agencies, private citizens, nonexperimental (i.e., full protections captive population is producing enough and landowners demonstrated that there under the Act) population areas for New offspring to both maintain the captive would be a great deal of opposition to Mexico and Arizona will be confusing flock and provide falcons for release; reintroducing falcons in Arizona and and difficult to implement. A and (4) the possible failure of this action New Mexico without the 10(j) nonessential experimental population of would not appreciably reduce the designation. The 10(j) designation gives falcons will assist in gaining support for likelihood of survival of the subspecies us regulatory flexibility, which is the conservation of the falcon that might in the wild. The NEP designation allows beneficial when trying to reintroduce a not exist otherwise. for regulatory flexibility for management new population. Our Response: We agree and have that contributes to the conservation of (31) Comment: Falcon recovery will incorporated these points into the falcons, which makes the reintroduction have an impact on other species. ‘‘Recovery Efforts’’ section of the of falcons in New Mexico less Our Response: Falcons historically Background above. controversial to land managers, and occupied this desert habitat, and the (26) Comment: The Service should should result in a larger number of plants and animals that exist there refrain from releases of captive-raised release sites and more widespread evolved with this predatory bird. Thus, birds until there is a better reintroductions. Therefore, we believe through falcon recovery, we are aiding understanding of the habitat the use of the NEP should be the fastest in restoration of this desert ecosystem. requirements and genetics of the way to successfully establish a falcon In addition, we do not expect any naturally occurring falcons. Any population in New Mexico and Arizona. significant impact to any other listed or released falcons should be genetically We have concluded this reintroduced unlisted species to result from falcon appropriate for the Chihuahuan population to be nonessential to the recovery. As predators, falcons require grassland population. The Service continued existence of the species large home ranges in order to have should conserve the native population according to the provisions of section adequate amounts of available prey of falcons, and not introduce 10(j) of the Act for the following (Keddy-Hector 2000); therefore, they individuals with a different genetic reasons: would not occupy suitable habitat in composition (e.g., from Veracruz, (a) With at least three populations, large numbers. They are anticipated to Tabasco, Campeche, and Chiapas, one in eastern Mexico, a second in be widely distributed in low numbers Mexico, outside of the Chihuahua northern Chihuahua, Mexico, and a over the suitable habitat in New Mexico Desert) or behavioral differences that third becoming established in southern and Arizona. Furthermore, falcons are may reduce the fitness of these locally- Texas, the experimental population is generalists and will consume a wide adapted birds. not essential to the continued existence variety of insects, small mammals, Our Response: Please refer to the of the species. The threat of extinction reptiles, and small to medium-sized discussion found in the ‘‘Genetic from a single catastrophic event has birds. Therefore, falcon recovery is not Variation’’ portion of the Management been reduced by a gradual increase of anticipated to negatively affect other section. No new genetic information the southern Texas and captive sympatric species. was provided to the Service during populations. Thus, loss of the (32) Comment: If DDT is still used in either of the two public comment experimental population will not Mexico, then it does not seem logical to periods for this proposal. appreciably reduce the likelihood of start a recovery process on the United (27) Comment: Several commenters falcon survival in the United States; States at the Mexico border only to fail suggested that we develop a 10(j) and, because of the use of DDT in Mexico. population that would also allow for (b) Any birds lost during the Our Response: We have no knowledge naturally occurring falcons (i.e., reintroduction attempt can be replaced of widespread use of DDT in Mexico, as experimental status individuals would through captive breeding. Production its use was banned in 2000. In addition, only be recognized outside areas that from the extant captive flock is already we have seen a significant decrease in overlap with naturally occurring sufficient to support the release of birds the concentrations of DDT remaining in individuals) (50 CFR 17.80). that would occur under this final rule, the United States since its use was Our Response: Please see our in addition to continued releases in banned in 1972, leading to delisting of response to State comment 6. west Texas. the American peregrine falcon in 1999

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(64 FR 46541), and the currently overall conservation efforts for the should not be required as they create proposed delisting of the bald eagle (64 subspecies as a whole. This has been undue burden on land managers. FR 36454; 71 FR 8238; 71 FR 28293). demonstrated by the successful Our Response: We do not anticipate We anticipate that sufficient numbers of recolonization of falcons reintroduced that there will be conflicts between falcons will reside and hunt in suitable in Texas over the past two decades, falcon reintroduction and current land habitat in New Mexico and Arizona where there has been only one reported use practices. Therefore, at present, we such that any residual DDT remaining conflict with existing land use practices do not feel that agreements or in Mexico will not preclude falcon during that period of time and it was memoranda of understanding with recovery in the United States. resolved in the early 1990s (Burnham et landowners are necessary to provide (33) Comment: Habitat degradation al. 2002; Bond 2005; Jenny 2005; suitable habitat for falcons. We will was one of the primary threats to the Robertson 2006). choose falcon reintroduction sites that species when it was listed as (35) Comment: Initiating another meet the following criteria: (1) Within or endangered. Recent information reintroduction program in the in proximity to potentially suitable indicates that habitat and avian prey are Chihuahuan Desert is not prudent habitat, including open grassland important determinants of falcon habitat before the outcome of the program in habitats that have scattered trees/ (e.g., Macias-Duarte et al. 2004; Meyer west Texas is assessed. The Service shrubs/yucca for nesting and perching; and Williams 2005). should plan on conducting such an (2) supporting available prey for falcons Our Response: The intense assessment. (e.g., insects, small to medium-sized overgrazing that resulted in shrub Our Response: As we discussed birds, and rodents); (3) with minimal encroachment in grasslands has previously in this final rule, we are natural and artificial hazards (e.g., moderated, with widespread designating the population of falcons in predators, open-water tanks) and implementation of improved range New Mexico and Arizona as potential hazards that can be minimized management techniques, including experimental and will evaluate the where practical; (4) with access for decreased stocking rates, stock rotation, success of our reintroduction program logistical support; (5) with a large extent and prescribed burning (Archer 1994; every 5 years. The releases in south of potentially suitable habitat Heady 1994; Burnham et al. 2002). In Texas have demonstrated success surrounding a release site and its addition, DDT use was banned in the toward the recovery of the falcon in the proximity to other similar habitats; and United States in 1972 and in Mexico in United States; and therefore, we do not (6) with a willing landowner or land 2000. Therefore, falcon reintroductions believe it would be beneficial for falcon manager. We will evaluate the success are considered appropriate because recovery to postpone this reintroduction of these criteria through our 5-year habitat threats are continuing to be effort to assess the success of the review process, and if indicated, we will reduced. In addition, as described in program in west Texas. have the option of executing agreements this final rule, reintroduction sites will (36) Comment: The Service should or memoranda of understanding with be carefully selected to optimize habitat not base the EA and proposed 10(j) willing landowners in the future. suitability, and falcons are known population on an outdated recovery (38) Comment: The EA and proposed generalists and will not be dependent plan. The Service should establish a rule do not consider that natural on the availability of any particular type formal recovery team and update the recolonization is already occurring and of prey. falcon recovery plan prior to finalizing could be facilitated by focusing scarce (34) Comment: Please explain how the the 10(j) rule and releasing birds. funding on habitat restoration, rather reintroduction of falcons is compatible Our Response: A current recovery than releasing captive birds. Enhancing with existing land use practices (e.g., plan is not required in order to move habitat for falcons is a better use of livestock grazing, oil and gas forward with recovery actions, funds for the long-term recovery of the development), yet the Service has a including any associated regulations. species and establishment of a naturally documented history of finding these While we would like to update the occurring population. same practices are threats to the species recovery plan, we do not feel it is Our Response: We believe there is (Service 1990, 51 FR 6686). necessary to complete a revision prior to ample suitable habitat to support Our Response: In the 1990 recovery moving forward with this 10(j) rule. falcons and that focusing on habitat plan (and the 1985 and 1986 listing Falcon reintroductions such as these enhancement is not the best use of rules) for the falcon, the causes of were recommended in the 1990 funds. Because there is available habitat, decline for the subspecies included recovery plan, and we are implementing but limited numbers of naturally brush encroachment and agricultural these recommendations. Furthermore, occurring falcons, we believe development that destroyed grassland the recovery plan provides guidelines reintroductions will serve a key role in habitat; channelization of desert streams for the recovery process, and, in the recovery of the falcon. Furthermore, that destroyed wetland communities combination with the best available the falcon reintroductions that result that provided habitat for avian prey; and scientific information, we will continue from this rule will have a large pesticide contamination, such as by to evaluate the application of these partnership component, which will help DDT. On the other hand, livestock guidelines to the reintroduction process spread expenses among many entities. grazing that uses best management as needed in the future. Under the 10(j) designation, section practices has been recognized as (37) Comment: We received 7(a)(1) still applies and requires all compatible with nesting falcons comments about agreements or Federal agencies to use their authorities (Burnham et al. 2002), and oil and gas memoranda of understanding with land to conserve listed species. Therefore, development was not mentioned as a managers that ranged from: (1) The Federal agencies can still fund habitat threat in either the recovery plan or Service should have a signed enhancement projects for falcons in listing rules. Existing land use practices memorandum of understanding with accordance with their 7(a)(1) may be a threat to individuals of a landowners prior to finalization of the responsibilities. species (i.e., may result in ‘‘take’’ of 10(j) rule in order to ensure habitat individuals under previous regulations); guidelines are followed, to (2) Issue 3: The Monitoring Plan however, we believe the existing land agreements or memoranda of (39) Comment: The Service should use practices are compatible with understanding with land managers establish a long-term monitoring

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program that addresses nesting success, annual meetings and reviews of the the monitoring plan’s discussion of prey availability, vegetation, and causes Peregrine Fund’s annual reports, 2-year surveys of avian species. of mortality. You should also develop progress reports on agency Tier II (47) Comment: The monitoring plan an adaptive management process that monitoring efforts, and 5-year should include a discussion of what includes stakeholders and a large-scale evaluations. Efforts under this 10(j) rule data should be collected in a given landscape conservation strategy. will cease when or if it is determined situation. For example, documenting Our Response: The short-term that the program no longer furthers the stick nests would be especially monitoring described in the monitoring conservation of the falcon. important, but should be evaluated in plan includes the documentation of (42) Comment: There should be light of other management goals/ nesting, nesting success, vegetation, and provisions for banding progeny of objectives and priorities. other habitat attributes of nest sites and captive-reared birds to evaluate the Our Response: We believe that the territories. Recommended long-term reintroduction program. information we specified is the most monitoring activities include Our Response: We acknowledge the appropriate for beginning the documentation of other avian species, value of banding the progeny of captive- monitoring effort. As information is including other raptors and potential reared birds to evaluating the program. gathered, special situations will be prey species of falcons. As information The monitoring plan provides in the noted and appropriate modifications to becomes available from these efforts, we post-release procedures that as many our protocol will be adopted. will be able to design more refined long- chicks as possible from successfully (48) Comment: The Service should term monitoring efforts. The monitoring nesting falcons will be banded. evaluate key ecological factors to plan provides for an adaptive (43) Comment: Habitat conditions, prioritize where management/recovery management process through annual particularly grassland birds that provide actions should be concentrated. These stakeholder meetings and evaluation prey, should also be monitored. include variability of prey abundance, reports to review project data to Our Response: As indicated in a potential nest site availability, predator determine if refinements to the program response to an earlier comment, the pressure, contaminant load, age and sex are needed. monitoring plan includes assessments of of dispersing falcons, and demography. (40) Comment: The Service should habitat suitability and surveys, Our Response: We will be using provide a timeframe to implement and including surveys of other avian species available information on the falcon, evaluate this approach to recovering the that are potential prey for falcons. including a recently finalized falcon. (44) Comment: The Service has not assessment of falcon habitat (Young et Our Response: Annual stakeholder ensured that monitoring native falcons al. 2005), in the selection of release meetings will be conducted to review will occur if non-mandatory surveys are sites. The monitoring plan includes the project data to determine if refinements subject to available funding. gathering of information on habitat to the program are needed. We will use Our Response: We note that suitability and on the presence of avian the best scientific and commercial data conservation efforts by us and our predators and prey. available, including, but not limited to, conservation partners are always subject (49) Comment: The 10(j) rule should results from the monitoring plan and to funding support by Congress, State be removed once the population is ‘‘self- stakeholder meetings to develop interim legislatures, or private individuals and sustaining,’’ and standard ESA objectives to assist in measuring the organizations. Although we have no protections resume. success of the program and to prepare guarantees about funding in future Our Response: The removal of a 10(j) 5-year evaluations of the restoration years, we have a reasonable expectation listing of an NEP would first require a program. As indicated in section 5 that our partners will be able to carry finding that the information on which (‘‘Reintroduction Procedures’’) of the out the monitoring activities that they the original ‘‘nonessential’’ Background, we anticipate releasing have identified as appropriate. determination was based had changed falcons for 10 years or more. Although (45) Comment: The Service should enough that the loss of the population we have reason to expect success from include criteria and define the term would be likely to appreciably reduce this program, based on experiences in ‘‘success’’ in the monitoring plan. the likelihood of survival of the species Texas, it is acknowledged to be a truly Our Response: We will view the in the wild. We foresee little likelihood experimental effort involving program as a success as long is it is that success of reintroduction in the uncertainties that preclude the furthering the conservation of the 10(j) area would occur while severe identification of a more precise falcon. Although our best estimate is negative changes in the status of the timeframe for implementation. that habitat in New Mexico could falcon occurred elsewhere. Any change (41) Comment: The 10(j) designation potentially support up to 200 pairs of in the 10(j) listing would require us to should have a quantifiable number of falcons, we anticipate that information engage in notice-and-comment falcons as a recovery target or a date set gathered during the monitoring efforts rulemaking, including publishing a to end the program if this program is not will allow us refine our understanding proposed rule in the Federal Register successful. of what is achievable in terms of seeking public comment on that Our Response: Section 10(j) and its conserving the falcon. proposal (including, if requested, public implementing regulations do not have a (46) Comment: Prey species are hearings), and publishing a final requirement that we specify a particularly important during the determination in the Federal Register. population target or date, only that the establishment of pair bonds and (50) Comment: The monitoring plan release will further the conservation of territories, which usually occur in late lacks sufficient performance measures. the species. As stated in our response to winter or very early spring. The Our Response: We have added a comment 21, the best current estimate is breeding bird survey protocol should be statement to the monitoring plan that habitat in New Mexico is sufficient used during this time of the year. indicating that, based on information to support up to 200 pairs of falcons, Consider clarifying the methodology gathered as monitoring proceeds, we and that Chihuahuan Desert habitat in and timing for conducting prey base will develop interim objectives to assist Arizona may support additional surveys. in measuring the success of the individuals. We will evaluate the Our Response: We have adopted this program. Even with prior experience in progress of the program through the recommendation and have added it to reintroducing this species, progress in

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the reintroduction effort cannot be Our Response: This correction has to have the optimal amount of time to predicted sufficiently to develop more been incorporated into the final successfully reach independence, they detailed performance measures at this monitoring plan. will need to be reintroduced into the time. From our conservation efforts on (56) Comment: The short-term wild beginning in late spring and this and other species, we know that it monitoring section of the draft summer 2006 (Juergens and Heinrich may take several years of effort before monitoring plan states that BLM will 2005). Careful timing of the age for we can more clearly judge the supply remote-sensing data. Only BLM reintroducing falcons is important to likelihood of success of reintroduction. in New Mexico will be supplying these increase their chances for successfully Information gathered as reintroduction data. fledging and reaching independence proceeds will be used to evaluate Our Response: This correction has (Sherrod et al. 1987). A 30-day delay progress on the program. Based on this been incorporated into the final would be contrary to the public interest information, we will consider more monitoring plan. because it would result in delay of precise performance measures and (57) Comment: A new version of the reintroductions until spring of 2007, as adopt those that are likely to increase habitat assessment protocol, Attachment falcons are most successfully the likelihood of success of the program. A of the monitoring plan, is available reintroduced when they are several (51) Comment: How long will re- from the New Mexico Cooperative Fish weeks old and this age cohort only introduction efforts continue? and Wildlife Research Unit. occurs in late spring and summer each Our Response: We have replaced Our Response: We anticipate releasing year (Sherrod et al. 1987). Attachment A with the newer version. falcons for 10 years or more. We have also added a statement to the Required Determinations (52) Comment: The 10(j) rule should monitoring plan that the information Section 7 Consultation remain in place until the species is from the protocol is intended to be used delisted. to improve site selection for releases. A special rule under section 4(d) of Our Response: Our intent is for the Issue 5: Additional Comment the Act is included in this establishment 10(j) rule to remain in place until the of an experimental population under status of the species improves to a point (58) Comment: The Service should section 10(j) of the Act. A population where listing is no longer necessary, and support research, management, and designated as experimental is treated for the falcon can then be delisted. outreach efforts on public and private the purposes of section 9 of the Act as (53) Comment: How will the delisting lands for the falcon within its core threatened, regardless of the species’ process proceed when the falcon breeding range in the Chihuahua desert designation elsewhere in its range. The population has reached a sufficient grasslands, including adjacent Service is not required to consult on this level? Chihuahua, Mexico. special rule under section 7(a)(2) of the Our Response: Once the threats to the Our Response: We agree and, with our Act. The development of protective falcon have been reduced, and partners, will attempt to support and/or regulations for a threatened species are populations are self-sustaining, the coordinate these activities to the extent an inherent part of the section 4 listing Service will publish a proposed rule to that we are able. process. The Service must make this delist the falcon in the Federal Register. Finding determination considering only the There would be opportunities for the ‘‘best scientific and commercial data We followed the procedures required public to comment and request public available.’’ A necessary part of this by the Act, NEPA, and the hearings. Information gathered during listing decision is also determining what Administrative Procedures Act during the public comment period would be protective regulations are ‘‘necessary this Federal rulemaking process. incorporated into our evaluation of and advisable to provide for the Therefore, we solicited public and peer listing status. If we were to determine conservation of [the] species.’’ reviewer comment on the proposed NEP that listing is no longer appropriate, a Determining what prohibitions and designation. As required by law, we final rule delisting the falcon would authorizations are necessary to conserve have considered all comments received then be published in the Federal the species, like the listing on the proposed rule, the draft EA, and Register. determination of whether the species the draft monitoring plan before making meets the definition of threatened or (54) Comment: Will those involved in this final determination. Based on the endangered, is not a decision that monitoring efforts always seek above information, and using the best Congress intended to undergo section 7 landowner and manager permission scientific and commercial data available consultation. prior to entering private lands? (in accordance with 50 CFR 17.81), the Our Response: Yes. It is our policy Service finds that creating a NEP of Regulatory Planning and Review (E.O. that landowner approval will always be northern aplomado falcons and 12866) obtained either in writing or by record releasing them into the NEP area will of telephone conversation prior to further the conservation of the species. In accordance with the criteria in entering private lands. We also specify Executive Order 12866, this rule to in our permits for work on listed species Effective Date designate NEP status for northern that the permit does not confer right to We are making this rule effective aplomado falcon in Arizona and New trespass, and that landowner permission upon publication. In accordance with Mexico is not a significant regulatory must be obtained by the permittee. Our the Administrative Procedure Act, we action subject to Office of Management monitoring plan states that landowner find good cause as required by 5 U.S.C. and Budget review. As described below, consent either in writing or by record of 553(d)(3) to make this rule effective this rule will not have an annual telephone conversation is a prerequisite immediately upon publication in the economic effect of $100 million or more for data collection on private land. Federal Register. We expect that up to on the economy and will not have an (55) Comment: Falcons do not 140 falcons could be available for adverse effect on an economic sector, normally breed until they are 2 years release in 2006 in New Mexico and productivity, competition, jobs, the old, not 3 years old as indicated on page western Texas (Juergens and Heinrich environment, or other units of 3 of the draft monitoring plan. 2005). In order for this group of falcons government. Therefore, a cost-benefit

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and full economic analysis will not be rule on small entities (i.e., small confer (rather than consult) with the required. businesses, small organizations, and Service on actions that are likely to Following release, birds may use small government jurisdictions). jeopardize the continued existence of a private or public lands adjacent to However, no regulatory flexibility proposed species. The results of a release areas. Because of the substantial analysis is required if the head of an conference are advisory in nature and regulatory relief provided by the NEP agency certifies that the rule will not do not restrict agencies from carrying designation (no penalties for have a significant economic impact on out, funding, or authorizing activities. unintentional take or restrictions against a substantial number of small entities. When the NEP is located within a land use), we do not believe the SBREFA amended the Regulatory National Wildlife Refuge or National reintroduction of falcons will conflict Flexibility Act to require Federal Park, we will treat the reintroduced with existing human activities or hinder agencies to provide a statement of the falcons as threatened under the Act, and public or private use of lands within the factual basis for certifying that a rule therefore the consultation requirements NEP area. Likewise, no governments, will not have a significant economic of section 7(a)(2) will apply on these individuals, or corporations will be impact on a substantial number of small Federal lands. required to specifically manage for entities. We are certifying that this rule reintroduced falcons. will not have a significant economic Unfunded Mandates Reform Act (2 This final rule will not create effect on a substantial number of small U.S.C. 1501 et seq.) inconsistencies with other agency’s entities. The following discussion In accordance with the Unfunded actions or otherwise interfere with an explains our rationale. Mandates Reform Act (2 U.S.C. 1501 et action taken or planned by another The area affected by this rule includes seq.): agency. Federal agencies most interested the States of Arizona and New Mexico. 1. On the basis of information in this rulemaking are the Bureau of We do not expect this rule to have any contained in the ‘‘Required Land Management and Department of significant effect on recreational, Determinations’’ section above, this rule Defense because they manage large areas agricultural, or development activities will not ‘‘significantly or uniquely’’ of suitable falcon habitat within the NEP within the NEP area because the NEP affect small governments. We have area. These agencies participated in the designation provides no restrictions on determined and certify pursuant to the northern aplomado falcon working most Federal (see next paragraph for Unfunded Mandates Reform Act, 2 group and had the opportunity to National Wildlife Refuges and units of U.S.C. 1502 et seq., that this rulemaking participate in the development and the National Park System) and all non- will not impose a cost of $100 million review of the action finalized by this Federal actions that may affect falcons. or more in any given year on local or rulemaking and to ensure the action is In addition, the special rule authorizes State governments or private entities. A consistent with their land management unknowing or incidental take of falcons Small Government Agency Plan is not plans. Because of the substantial (i.e., take that is incidental to an required. As explained above, small regulatory relief provided by the NEP otherwise lawful activity). Direct take governments will not be affected designation, we believe that the for research or educational purposes because the NEP designation will not reintroduction of northern aplomado would require a section 10 recovery place additional requirements on any falcons in the areas described will not permit under the Act. Knowingly taking city, county, or other local conflict with existing human activities falcons (e.g., shooting) will not be municipalities. or hinder public utilization of the area. permitted. The action will not affect the This rule will not materially affect establishment of future hunting seasons 2. This rule will not produce a entitlements, grants, user fees, loan or conservation actions approved for Federal mandate of $100 million or programs, or the rights and obligations migratory bird species. The principal greater in any year (i.e., it is not a of their recipients. Because there are no activities on private property near the ‘‘significant regulatory action’’ under expected impacts or restrictions to initial release areas are agriculture and the Unfunded Mandates Reform Act). existing human uses of the NEP area as recreation. We believe the presence of This NEP designation for the falcon will a result of this rule, no entitlements, the falcon will not preclude use of lands not impose any additional management grants, user fees, loan programs, or the for these purposes. Because there will or protection requirements on the States rights and obligations of their recipients be no new or additional economic or or other entities. are expected to occur. regulatory restrictions imposed upon Takings (E.O. 12630) This rule does not raise novel legal or States, Federal agencies, or members of policy issues. Since 1984, we have the public due to the presence of the In accordance with Executive Order promulgated section 10(j) rules for many falcon, this rulemaking is not expected 12630, the rule does not have significant other species in various localities. Such to have any significant adverse impacts takings implications. We do not expect rules are designed to reduce the to recreation, agriculture, or any this rule to have a potential takings regulatory burden that would otherwise development activities. implication under Executive Order exist when reintroducing listed species When NEPs are located outside a 12630 because it would exempt to the wild. National Wildlife Refuge or unit of the individuals or corporations from National Park System, we treat the prosecution for take that is accidental Regulatory Flexibility Act population as proposed for listing and and incidental to an otherwise lawful Under the Regulatory Flexibility Act only two provisions of section 7 would activity. Because of the substantial (as amended by the Small Business apply: section 7(a)(1) and section regulatory relief provided by the NEP Regulatory Enforcement Fairness Act 7(a)(4). In these instances, NEPs provide designation, we do not believe the (SBREFA) of 1996; 5 U.S.C. 804(2)), additional flexibility because Federal reintroduction of falcons would conflict whenever a Federal agency is required agencies are not required to consult with existing or proposed human to publish a notice of rulemaking for with us under section 7(a)(2). Section activities or hinder public use of lands any proposed or final rule, it must 7(a)(1) requires Federal agencies to use within the NEP area. Neither of the prepare, and make available for public their authorities to further the States within the NEP area will be comment, a regulatory flexibility conservation of listed species. Section required to specifically manage or analysis that describes the effect of the 7(a)(4) requires Federal agencies to reintroduce falcons.

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A takings implication assessment is American Tribal Governments (59 FR contains a requirement for information not required because this rule (1) will 22951); Executive Order 13175; and the collection; however, it does not affect 10 not effectively compel a property owner Department of the Interior’s requirement or more persons, as defined above. to suffer a physical invasion of property at 512 DM 2, we have notified the Therefore, OMB approval and a control and (2) will not deny all economically Native American Tribes within the NEP number are not needed for the data beneficial or productive uses of the land area about the proposed rule and this collection forms appended to the or aquatic resources. This rule will final rule. They have been advised monitoring plan. In the future, if it substantially advance a legitimate through verbal and written contact, becomes necessary to collect this government interest (conservation and including informational mailings from information from 10 or more recovery of a federally listed bird) and the Service. Information was also respondents per year, we will first will not present a barrier to all presented at the Native American Fish obtain approval from OMB. reasonable and expected beneficial use and Wildlife Society meeting in New of private property. Mexico in 2003 (Murphy 2003). National Environmental Policy Act Furthermore, the potential Federalism (E.O. 13132) We have prepared an environmental reintroduction area for falcons in New assessment and Finding of No In accordance with Executive Order Mexico does not overlap with any Tribal Significant Impact, as defined under the 13132, we have considered whether this lands, and we do not expect falcons to authority of the National Environmental rule has significant Federalism effects move out of their preferred habitats. If Policy Act of 1969. These documents and have determined that a Federalism future activities resulting from this rule are available from the New Mexico assessment is not required. This rule may affect Tribal resources, the Service Ecological Services Field Office (see will not have substantial direct effects will communicate and consult on a ADDRESSES section) or from our Web site on the States, in the relationship Government-to-Government basis with at http://www.fws.gov/ifw2es/ between the Federal Government and any affected Native American Tribes in NewMexico/. the States, or on the distribution of order to find a mutually agreeable power and responsibilities among the solution. Energy Supply, Distribution or Use (E.O. various levels of government. In keeping 13211) Paperwork Reduction Act with Department of the Interior policy, On May 18, 2001, the President issued we requested information from and Office of Management and Budget Executive Order 13211 on regulations coordinated development of this rule (OMB) regulations at 5 CFR 1320, which that significantly affect energy supply, with the affected resource agencies in implement provisions of the Paperwork distribution, and use. Executive Order New Mexico and Arizona. Achieving Reduction Act (44 U.S.C. 3501 et seq.) 13211 requires agencies to prepare the recovery goal for this species will require that Federal agencies obtain Statements of Energy Effects when contribute to its eventual delisting and approval from OMB before collecting undertaking certain actions. This rule is its return to primary State management. information from the public. A Federal not expected to significantly affect No intrusion on State policy or agency may not conduct or sponsor and energy supplies, distribution, and use. administration is expected; roles or a person is not required to respond to Therefore, this action is not a significant responsibilities of Federal or State a collection of information unless it energy action and no Statement of governments will not change; and fiscal displays a currently valid OMB control Energy Effects is required. capacity will not be substantially number. OMB approval is required if directly affected. The special rule information will be collected from 10 or References Cited operates to maintain the existing more persons (5 CFR 1320.3). ‘‘Ten or A complete list of all references cited relationship between the States and the more persons’’ refers to the persons to in this rule is available upon request Federal Government and is being whom a collection of information is from the New Mexico Ecological undertaken in coordination with the addressed by the agency within any 12- Services Field Office (see ADDRESSES States. Therefore, this rule does not month period, and to any independent section) and from our Web site at have significant Federalism effects or entities to which the initial addressee http://www.fws.gov/ifw2es/NewMexico/. implications to warrant the preparation may reasonably be expected to transmit of a Federalism Assessment pursuant to the collection of information during that Authors the provisions of Executive Order period, including independent State, The primary authors of this notice are 13132. territorial, Tribal, or local entities and the New Mexico Ecological Services separately incorporated subsidiaries or Civil Justice Reform (E.O. 12988) Field Office staff (see ADDRESSES affiliates. For the purposes of this section). In accordance with Executive Order definition, ‘‘persons’’ does not include 12988 (February 7, 1996; 61 FR 4729), employees of the respondent acting List of Subjects in 50 CFR Part 17 the Office of the Solicitor has within the scope of their employment, Endangered and threatened species, determined that this rule does not contractors engaged by a respondent for Exports, Imports, Reporting and unduly burden the judicial system and the purpose of complying with the recordkeeping requirements, that it meets the requirements of collection of information, or current Transportation. sections 3(a) and 3(b)(2) of the Order. employees of the Federal government when acting within the scope of their Final Regulation Promulgation Government-to-Government employment, but it does include former I Relationship With Tribes Federal employees. The Office of Accordingly, we amend part 17, In accordance with Secretarial Order Management and Budget has approved subchapter B of Chapter I, title 50 of the 3206, American Indian Tribal Rights, our collection of information associated Code of Federal Regulations, as set forth Federal-Tribal Trust Responsibilities, with reporting the taking of below: and the Endangered Species Act (June 5, experimental populations (50 CFR PART 17—[AMENDED] 1997); the President’s memorandum of 17.84(p)(6)) and assigned control April 29, 1994, Government-to- number 1018–0095. The monitoring I 1. The authority citation for part 17 Government Relations with Native plan for reestablishment of the falcon continues to read as follows:

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Authority: 16 U.S.C. 1361–1407; 16 U.S.C. I 2. Amend § 17.11(h) by revising the § 17.11 Endangered and threatened 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– existing entry for ‘‘Falcon, northern wildlife. 625, 100 Stat. 3500; unless otherwise noted. aplomado’’ under ‘‘BIRDS’’ to read as * * * * * follows: (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* BIRDS

******* Falcon, northern Falco femoralis U.S.A. (AZ, NM, Entire, except where E 216 NA NA aplomado. septentrionalis. TX), Mexico, Gua- listed as an ex- temala. perimental popu- lation. Falcon, northern Falco femoralis U.S.A. (AZ, NM, U.S.A. (AZ, NM) ..... XN 758 NA 17.84(p) aplomado. septentrionalis. TX), Mexico, Gua- temala.

*******

I 3. Amend § 17.84 by adding paragraph (iii) Move a bird within the NEP area outside of the NEP area is considered (p) to read as follows: for genetic purposes or to improve the endangered under the Act unless it is health of the population; marked or otherwise known to be a § 17.84 Special rules—vertebrates. (iv) Relocate falcons that have moved member of the NEP. * * * * * outside the NEP area, by returning the (iii) The Service has designated the (p) Northern aplomado falcon (Falco falcon to the NEP area or moving it to NEP area to accommodate the potential femoralis septentrionalis). a captive breeding facility. All captures future movements of a wild population (1) The northern aplomado falcon and relocations from outside the NEP (Falco femoralis septentrionalis) (falcon) area will be conducted with the of falcons. All released birds and their population identified in paragraph permission of the landowner(s) or progeny are expected to remain in the (p)(9)(i) of this section is a nonessential appropriate land management agencies; NEP area due to the geographic extent experimental population (NEP). or of the designation. (2) No person may take this species, (v) Collect nesting data or band (10) The NEP will be monitored except as provided in paragraphs (p)(3) individuals. through (5) and (p)(10) of this section. closely for the duration of the (3) Any person with a valid permit (6) Any taking pursuant to paragraphs reintroduction program. Any bird that is issued by the U.S. Fish and Wildlife (p)(3) through (5) of this section must be determined to be sick, injured, or Service (Service) under § 17.32 may take reported within 24 hours by contacting otherwise in need of special care will be falcons for educational purposes, the U.S. Fish and Wildlife Service, New recaptured to the extent possible by scientific purposes, the enhancement of Mexico Ecological Services Field Office, Service and/or State or permitted Tribal propagation or survival of the species, 2105 Osuna NE, Albuquerque, NM wildlife personnel and given zoological exhibition, and other 87113; (505) 346–2525. Upon contact, a appropriate care. Such birds will be conservation purposes consistent with determination will be made as to the released back to the wild as soon as the Endangered Species Act (Act); disposition of any live or dead possible, unless physical or behavioral specimens. (4) A falcon may be taken within the problems make it necessary to return (7) No person shall possess, sell, NEP area, provided that such take is not them to a captive-breeding facility or deliver, carry, transport, ship, import, or willful, knowing, or due to negligence, they are euthanized if treatment would export by any means whatsoever, any or is incidental to and not the purpose be unlikely to be effective. of the carrying out of an otherwise such species taken in violation of these lawful activity; and that such taking is regulations. (11) The Service plans to evaluate the reported within 24 hours, as provided (8) It is unlawful for any person to status of the NEP every 5 years to under paragraph (p)(6) of this section. attempt to commit, solicit another to determine future management status (5) Any employee of the Service, New commit, or cause to be committed, any and needs, with the first evaluation Mexico Department of Game and Fish, offense defined in paragraphs (p)(2) and expected to be not more than 5 years or Arizona Game and Fish Department, (p)(7) of this section. after the first release of birds into the who is designated for such purpose, or (9)(i) The boundaries of the NEP area. All reviews will take into any person with a valid permit issued designated NEP area are based on account the reproductive success and by the Service under 50 CFR 17.32, may, county borders and include the entire movement patterns of individuals when acting in the course of official States of New Mexico and Arizona. The released, food habits, and overall health duties, take a falcon if such action is reintroduction area is within the of the population. This evaluation will necessary to: historical range of the species in New include a progress report. (i) Aid a sick, injured, or orphaned Mexico. * * * * * specimen; (ii) All falcons found in the wild (ii) Dispose of a dead specimen, or within the boundaries of the NEP area salvage a dead specimen that may be after the first releases will be considered useful for scientific study; members of the NEP. A falcon occurring

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Dated: July 7, 2006. criteria set forth in § 648.160(f)(1) have specifications for summer flounder, Matt Hogan, been met. The revised bluefish quotas scup, and black sea bass (70 FR 77060, Acting Assistant Secretary for Fish and for calendar year 2006 are: New York, December 29, 2005) presented detailed Wildlife and Parks. 900,526 lb (408,472 kg); and Virginia, information regarding Winter II [FR Doc. 06–6486 Filed 7–21–06; 3:06 pm] 720,915 lb (327,002 kg). possession limits, based on the amount of scup to be rolled over from Winter I BILLING CODE 4310–55–P Classification to Winter II. This action is taken under 50 CFR For 2006, the Winter II quota is DEPARTMENT OF COMMERCE part 648 and is exempt from review 1,901,983 lb (862,725 kg), and the best under Executive Order 12866. available landings information indicates National Oceanic and Atmospheric Authority: 16 U.S.C. 1801 et seq. that 1,827,598 lb (828,985 kg) remain of Administration the Winter I quota of 5,382,589 lb Dated: July 20, 2006. (2,441,501 kg). Consistent with the 50 CFR Part 648 James P. Burgess, intent of Framework 3, the full amount Acting Director, Office of Sustainable of unused 2006 Winter I quota is [Docket No. 051128313–6029–02; I.D. Fisheries, National Marine Fisheries Service. 071906C] transferred to Winter II, resulting in a [FR Doc. 06–6489 Filed 7–21–06; 1:04 pm] revised 2006 Winter II quota of Fisheries of the Northeastern United BILLING CODE 3510–22–S 3,729,581 lb (1,691,709 kg). In addition States; Atlantic Bluefish Fishery; to the quota transfer, the 2006 Winter II Quota Transfer possession limit is increased, consistent DEPARTMENT OF COMMERCE with the rollover specifications AGENCY: National Marine Fisheries established in the 2006 final rule (70 FR Service (NMFS), National Oceanic and National Oceanic and Atmospheric Administration 77060), to 6,500 lb (2,948 kg) per trip to Atmospheric Administration (NOAA), provide an appropriate opportunity for Commerce. 50 CFR Part 648 fishing vessels to obtain the increased ACTION: Temporary rule; inseason quota Winter II quota. transfer. [Docket No. 051104293–5344–02; I.D. 071306A] Classification SUMMARY: NMFS announces that the This action is required by 50 CFR part Commonwealth of Virginia is Fisheries of the Northeastern United 648 and is exempt from review under transferring 125,000 lb (56,699 kg) of States; Scup Fishery; Adjustment to Executive Order 12866. commercial bluefish quota to the State the 2006 Winter II Quota Authority: 16 U.S.C. 1801 et seq. of New York from its 2006 quota. By AGENCY: National Marine Fisheries Dated: July 20, 2006. this action, NMFS adjusts the quotas Service (NMFS), National Oceanic and James P. Burgess, and announces the revised commercial Atmospheric Administration (NOAA), quota for New York and Virginia. Commerce. Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. DATES: Effective July 21, 2006 through ACTION: Temporary rule; inseason [FR Doc. E6–11940 Filed 7–25–06; 8:45 am] December 31, 2006, unless NMFS adjustment. publishes a superseding document in BILLING CODE 3510–22–S the Federal Register. SUMMARY: NMFS adjusts the 2006 FOR FURTHER INFORMATION CONTACT: Winter II commercial scup quota and DEPARTMENT OF COMMERCE Douglas Potts, Fishery Management possession limit. This action complies Specialist, (978) 281–9341, fax (978) with Framework Adjustment 3 National Oceanic and Atmospheric 281–9135. (Framework 3) to the Summer Flounder, Administration SUPPLEMENTARY INFORMATION: Scup, and Black Sea Bass Fishery Regulations governing the Atlantic Management Plan, which established a 50 CFR Part 648 bluefish fishery are found at 50 CFR part process to allow the rollover of unused commercial scup quota from the Winter [Docket No. 060503118–6169–02; I.D. 648. The regulations require annual 042606E] specification of a commercial quota that I period to the Winter II period. is apportioned among the coastal states DATES: This rule is effective November RIN 0648–AT26 from Florida through Maine. The 1, 2006, through December 31, 2006. process to set the annual commercial FOR FURTHER INFORMATION CONTACT: Fisheries of the Northeastern United quota and the percent allocated to each Sarah McLaughlin, Fishery Policy States; Summer Flounder, Scup, and state 1s described in § 648.160. Analyst, (978) 281–9279. Black Sea Bass Fisheries; Framework Two or more states, under mutual SUPPLEMENTARY INFORMATION: NMFS Adjustment 6 agreement and with the concurrence of published a final rule in the Federal AGENCY: National Marine Fisheries the Administrator, Northeast Region, Register on November 3, 2003 (68 FR Service (NMFS), National Oceanic and NMFS (Regional Administrator), can 62250), implementing a process, for Atmospheric Administration (NOAA), transfer or combine bluefish commercial years in which the full Winter I Commerce. quota under § 648.160(f). The Regional commercial scup quota is not harvested, ACTION: Final rule. Administrator is required to consider to allow unused quota from the Winter the criteria set forth in § 648.160(f)(1) in I period to be added to the quota for the SUMMARY: NMFS issues this final rule to the evaluation of requests for quota Winter II period, and to allow implement measures contained in transfers or combinations. adjustment of the commercial Framework Adjustment 6 (Framework Virginia has agreed to transfer 125,000 possession limits for the Winter II 6) to the Summer Flounder, Scup, and lb (56,699 kg) of its 2006 commercial period commensurate with the amount Black Sea Bass Fishery Management quota to New York. The Regional of quota rolled over from the Winter I Plan (FMP) that will allow regional Administrator has determined that the period. Table 4 of the final 2006 quota conservation equivalency in the summer

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