Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations 25593

DEPARTMENT OF THE INTERIOR Service’s Arizona Ecological Services or result in the destruction or adverse Office at 2321 W. Royal Palm Road, modification of designated critical Fish and Wildlife Service Suite 103, Phoenix, AZ 85021. habitat. Section 7 of the Act does not FOR FURTHER INFORMATION CONTACT: affect activities undertaken on private or 50 CFR Part 17 Steve Spangle, Field Supervisor, other non-Federal land unless they are [Docket No. FWS–R2–ES–2009–0077; Arizona Ecological Services Office, 2321 authorized, funded, or carried out by a 92220–1113–0000; ABC Code: C3] W. Royal Palm Road, Suite 103, Federal agency. Phoenix, AZ 85021 (telephone 602– Under section 10(j) of the Act, the RIN 1018–AW63 242–0210, facsimile 602–242–2513). If Secretary of the Department of the Interior can reestablish populations Endangered and Threatened Wildlife you use a telecommunications device for the deaf (TDD), call the Federal outside the species’ current range and and Plants; Establishment of a designate them as ‘‘experimental.’’ With Nonessential Experimental Population Information Relay Service (FIRS) at 800–877–8339. the experimental population of Sonoran Pronghorn in designation, the relevant population is Southwestern Arizona SUPPLEMENTARY INFORMATION: treated as threatened for purposes of AGENCY: Fish and Wildlife Service, Background section 9 of the Act, regardless of the species’ designation elsewhere in its Interior. It is our intent to discuss only those ACTION: Final rule. range. Threatened designation allows us topics directly relevant to this final rule discretion in devising management establishing a Sonoran pronghorn SUMMARY: We, the U.S. Fish and programs and special regulations for nonessential experimental population Wildlife Service (Service), are such a population. Section 10(j) of the (NEP). For more information on the reestablishing the Sonoran pronghorn, a Act allows us to adopt whatever Sonoran pronghorn, refer to the federally listed endangered mammal, in regulations are necessary and advisable February 4, 2010, proposed rule (75 FR its historical habitat in King Valley, to provide for the conservation of a NEP. 5732) and the 1998 Revised Sonoran Kofa National Wildlife Refuge, in Yuma In these situations, the general Pronghorn Recovery Plan (Service 1998: County, and the Barry M. Goldwater regulations that extend most section 9 http://ecos.fws.gov/docs/recovery_plan/ Range—East, Maricopa County, in prohibitions to threatened species do 981203.pdf) and its amendments southwestern Arizona. We are not apply to that species, and the 10(j) (Service 2002: http://ecos.fws.gov/docs/ reestablishing the Sonoran pronghorn rule contains the prohibitions and recovery_plan/031126.pdf). under section 10(j) of the Endangered exemptions necessary and appropriate Species Act of 1973, as amended, and Regulatory Background to conserve that species. For the purposes of section 7 of the classify that reestablished population as We listed the Sonoran pronghorn a nonessential experimental population Act, we treat an NEP as a threatened subspecies (Antilocapra americana species when the NEP is located within (NEP). The NEP is located in sonoriensis) as endangered throughout southwestern Arizona in an area north a National Wildlife Refuge or unit of the its range on March 11, 1967 (32 FR National Park Service, and section of Interstate 8 and south of Interstate 10, 4001), under the Endangered Species bounded by the Colorado River on the 7(a)(1) and the consultation Preservation Act of October 15, 1966, requirements of section 7(a)(2) of the west and Interstate 10 on the east; and without critical habitat. This subspecies an area south of Interstate 8, bounded by Act apply. Section 7(a)(1) requires all was included as an endangered species Federal agencies to use their authorities Highway 85 on the west, Interstates 10 when the Endangered Species Act was and 19 on the east, and the United to carry out programs for the signed into law in 1973 (Act; 16 U.S.C. conservation of listed species. Section States-Mexico border on the south. 1531 et seq.). The Act provides that This action is one of the recovery 7(a)(2) requires that Federal agencies, in species listed as endangered are actions that the Service, Federal and consultation with the Service, ensure afforded protection primarily through State agencies, and other partners are that any action authorized, funded, or the prohibitions of section 9 and the conducting throughout the historical carried out is not likely to jeopardize the requirements of section 7. Section 9 of range of the species. This final rule continued existence of a listed species. the Act, among other things, prohibits establishes the NEP and provides for When NEPs are located outside a the take of endangered wildlife. ‘‘Take’’ limited allowable legal taking of National Wildlife Refuge or National is defined by the Act as to harass, harm, Sonoran pronghorn within the defined Park Service unit, then for the purposes pursue, hunt, shoot, wound, kill, trap, NEP area. An Environmental of section 7, we treat the population as capture, or collect, or attempt to engage Assessment and Finding of No proposed for listing, and only two in any such conduct. Service regulations Significant Impact have been prepared provisions of section 7 apply—section (50 CFR 17.31) generally extend the for this action (see ADDRESSES section 7(a)(1) and section 7(a)(4). prohibitions of take to threatened In these instances, NEPs provide below). wildlife. Section 7 of the Act outlines additional flexibility because Federal DATES: The effective date of this rule is the procedures for Federal interagency agencies are not required to consult June 6, 2011. cooperation to conserve federally listed with us under section 7(a)(2). Section ADDRESSES: This final rule, along with species and protect designated critical 7(a)(4) requires Federal agencies to the public comments, Environmental habitat. It mandates that all Federal confer (rather than consult) with the Assessment (EA) and Finding of No agencies use their existing authorities to Service on actions that are likely to Significant Impact (FONSI), is available further the purposes of the Act by jeopardize the continued existence of a on the Internet at http:// carrying out programs for the species proposed to be listed. The www.regulations.gov and http:// conservation of listed species. It also results of a conference are in the form www.fws.gov/southwest/es/arizona/. states that Federal agencies will, in of conservation recommendations that Supporting documentation is also consultation with the Service, ensure are optional as the agencies carry out, available for public inspection, by that any action they authorize, fund, or fund, or authorize activities. Because appointment, during normal business carry out is not likely to jeopardize the the NEP is, by definition, not essential hours, at the U.S. Fish and Wildlife continued existence of a listed species to the continued existence of the species

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(see below) then the effects of proposed of Interstate 8, with the intent of planting of buffelgrass (Pennisetum actions on the NEP will generally not establishing another herd. ciliare), particularly in Sonora; gold rise to the level of jeopardizing the mining southeast of Sonoyta, Sonora; Biological Information continued existence of the species. As a dewatering and development along the result, a formal conference will likely The Sonoran pronghorn was first Gila River and Rı´o Sonoyta; and high never be required for Sonoran described by Goldman (1945, pp. 3–4) levels of undocumented immigration pronghorn established within the NEP and is small in terms of cranial and drug trafficking across the area. Nonetheless, some agencies (e.g., measurements compared to the international border, and associated law Bureau of Land Management (BLM)) measurements of other subspecies of enforcement response in the United voluntarily confer with the Service on pronghorn (Nowak and Paradiso 1971, States; actions that may affect a proposed p. 857). Historically, the Sonoran (3) wildfire, fueled by nonnative species. Section 10(j)(2)(c)(ii) precludes pronghorn ranged in the United States perennial and ephemeral plants that the designation of critical habitat for from approximately the Santa Cruz have increased fine fuels and allowed nonessential populations. Activities that River, Arizona, in the east, to the Gila fire to become a much more frequent are not carried out, funded, or Bend and Kofa Mountains, Arizona, to event in the Sonoran Desert; authorized by Federal agencies are not the north, and to Imperial Valley, (4) drought and associated limited subject to provisions or requirements in California, to the west (Service 1998, pp. food and water; and section 7. 4–6). In northwestern Sonora, Mexico, (5) small population size and random Based on the best scientific and the subspecies is thought to have changes in demographics. commercial data available, we must occurred historically as far south as Populations at low levels may determine whether the experimental Bahia Kino and east to Santa Ana and experience random variations in sex population is essential or nonessential Nogales. In Baja California, Mexico, the ratios, age distributions, and birth and to the continued existence of the subspecies occurred in the northeast death rates among individuals, which species. The regulations (50 CFR from the United States border south to can cause fluctuations in population 17.80(b)) state that an experimental the vicinity of Punta Estrella (Phelps size and possibly extinction (Service population is considered essential if its and Webb 1981, pp. 20–21; Service 2002, pp. 14–35; Primack 2002, pp. loss would be likely to appreciably 2002, Fig. 2). Currently, three 196–197). In very sparse populations, reduce the likelihood of survival of that populations of the Sonoran pronghorn males may have trouble finding females, species in the wild. All other are extant: (1) A U.S. population in causing an unequal sex-ratio, which populations are considered southwestern Arizona, south of may lead to a reduction in productivity nonessential. We have determined that Interstate 8, west of Highway 85, and (Primack 2002, pp. 310–311). In 2002, a this experimental population is not east of the Copper and Cabeza Prieta severe drought was the primary cause of essential to the continued existence of mountains (80–90 wild pronghorn); (2) a major die off of Sonoran pronghorn. the species in the wild (see Status of a population in the El Pinacate Region The U.S. population declined in 2002 Reestablished Populations section of northwestern Sonora (101 by 83 percent, to 21 animals (Bright and below). Therefore, the Service is pronghorn); and (3) a population south Hervert 2005, p. 46). The Mexican designating a nonessential experimental and east of Mexico Highway 8 and west populations declined at the same time, population for the species in this area. and north of Caborca, Sonora (381 but not to the same degree. The Sonoran pronghorn used to establish pronghorn). The three populations are population southeast of Highway 8 the experimental population will come geographically isolated due to barriers declined by 18 percent, while the El from a captive-rearing pen on Cabeza such as roads and fences (Service 2002, Pinacate population declined by 26 Prieta National Wildlife Refuge (NWR), pp. 4–10, Fig. 1). The current range of percent. The differences between the as long as appropriate permits are the Sonoran pronghorn in the United rates of decline north and south of the issued in accordance with our States is defined by the boundaries border may be due to high levels of regulations (50 CFR 17.22) prior to the described in number (1) above. Section human disturbance on the U.S. side, animals’ removal. The donor population 10(j)(2)(A) of the Act states that, ‘‘The due primarily to heightened levels of is a captive-bred population derived Secretary may authorize the release (and illegal immigration, smuggling, and law primarily from wild stock at Cabeza the related transportation) of any enforcement response (Service 2008, p. Prieta NWR and from a wild Sonoran population (including eggs, propagules, 55). pronghorn population in northwestern or individuals) of an endangered species Recovery Efforts Sonora, Mexico. The purpose of the or a threatened species outside the captive population is to provide stock current range of such species * * *’’ Restoring an endangered or for augmenting existing U.S. and Consistent with years of survey data, we threatened species to the point where it Mexican populations of Sonoran are confident that no Sonoran is recovered is a primary goal of the pronghorn, as well as supplying founder pronghorn population occurs outside of endangered species program. Thus, in animals for establishment of an the current range (Phelps 1981, pp. 23– 1982 we published the Sonoran additional U.S. herd(s), in accordance 24; Service 2002, pp. 16 and 47). Pronghorn Recovery Plan (Plan) (Service with recovery actions 2.1–2.4 of the Threats to the Sonoran pronghorn 1982), which was produced by a Sonoran Pronghorn Recovery Plan include: Recovery Team comprised of (Service 2002, pp. 47–48). The proposed (1) Highways, fences, railroads, representatives from the Arizona Game population establishment will involve developed areas, and irrigation canals and Fish Department (AGFD), Cabeza two phases: (1) Construction and that block access to essential forage or Prieta NWR, BLM, and Organ Pipe operation of a captive-breeding pen at water resources; Cactus National Monument (OPCNM). Kofa NWR, with subsequent releases to (2) a variety of human activities that The Plan was subsequently revised in establish a new herd; and (2) relocation disturb pronghorn or degrade habitat, 1994, 1998, and 2002. Major recovery of excess Sonoran pronghorn from the including livestock grazing in the actions include: existing breeding pen at Cabeza Prieta United States and Mexico; military (1) Enhance present populations of NWR to the eastern portion of the activities; recreation; poaching and Sonoran pronghorn by providing BMGR–E, east of Highway 85 and south hunting; clearing of desert scrub and supplemental forage and/or water;

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(2) Determine habitat needs and well, pump, pipelines, and irrigation and the presence of preferred forage and protect present range; lines, have been developed to irrigate water as additional steps in the (3) Investigate and address potential the desert and produce forage for evaluation process (O’Brien et al. 2005, barriers to expansion of presently used pronghorn. Another plot is nearing p. 32). range, and investigate, evaluate, and completion, and two additional plots An Interdisciplinary Team (IDT), prioritize present and potential future will be installed over the next 5 years. comprising members of the Sonoran reintroduction sites within the historical These crucial projects, intended to pull Pronghorn Recovery Team, the Tohono range; the U.S. population back from the brink O’odham Nation, and representatives (4) Establish and monitor a new, of extinction, have been cooperative from land management agencies located separate herd(s) to guard against efforts among the Service, AGFD, in southwestern Arizona, was convened catastrophes decimating the core Marine Corps Air Station—Yuma, Luke in 2008 to address these and other population; Air Force Base, BLM, and OPCNM, with issues and considerations, and to (5) Continue monitoring populations volunteer efforts from the Arizona recommend specific areas for and maintain a protocol for a repeatable Desert Bighorn Sheep Society, Arizona establishing an additional U.S. herd or and comparable survey techniques; and Antelope Foundation, and the Yuma herds. Development of alternatives for (6) Examine additional specimen Rod and Gun Club. population establishment entailed evidence to assist in verification of The U.S. wild population of Sonoran consideration of three key variables: taxonomic status (Service 1998, pp. iii– pronghorn has rebounded from 21 in (1) Geographical areas for establishing iv). 2002 to 80–90 in 2010; this increase has populations outside of the current The 2002 Supplement did not include been facilitated by the collaborative range; (2) potential establishment delisting criteria; however, eight short- recovery efforts for this species. techniques; and (3) legal status of term recovery actions were identified as However, at 80–90 animals currently, established populations under the Act. necessary to downlist the species to the U.S. population is far from being Each of these three key variables had a threatened. The supplement goes on to secure. We have begun to work with our range of options. The IDT evaluated the say that accomplishing these actions Mexican partners on recovery of the three key variables to arrive at the most would provide the information Sonoran pronghorn in Sonora. Although effective combinations of geographical necessary to determine delisting criteria. the number of pronghorn in Sonora (482 areas, establishment techniques, and One of the short-term recovery actions animals) is significantly greater than in legal status options. was ‘‘evaluating potential transplant the United States, the safety net of water The IDT conducted a mapping locations, establishing methodology and sources and forage plots is not in place exercise to identify areas within the protocols, developing interagency there, and a severe drought could historical range of Sonoran pronghorn agreements (including with Mexico as decimate those populations. in the United States that were under required), acquiring funding, and Federal or State ownership and that initiating reestablishment projects’’ Reestablishment Areas contained suitable habitat for the (Service 2002, p. 38). O’Brien et al. (2005) used landscape- species. The result of this exercise was After the catastrophic die off of level classification and modeling to identification of seven potential Sonoran pronghorn in 2002, the Service assess potential Sonoran pronghorn reestablishment areas, designated Areas and its partners embarked on a number habitat in southwestern Arizona, A through G. The seven areas were then of aggressive recovery actions to ensure including current and historical range, ranked by the IDT, using seven selection the species’ continued existence and to as a means of beginning the process of criteria, to determine the best areas for begin to rebuild populations. The identifying potential locations for translocation. Area A (King Valley at cornerstone of these actions was a semi establishing a second U.S. Sonoran Kofa NWR, and adjacent portions of captive breeding facility, constructed in pronghorn herd. Both models identified primarily Yuma Proving Grounds and Childs Valley of Cabeza Prieta NWR in greater than 4,632 square miles (sq. mi) BLM lands) and Area D (primarily 2003, and stocked with wild Sonoran (greater than 12,000 square kilometers portions of the BMGR–E, BLM lands, pronghorn in 2004. In 2009, as of May, (sq. km)) of potential habitat (O’Brien et and a portion of the Tohono O’odham 69 Sonoran pronghorn resided in the al. 2005, pp. 28–30). The largest blocks Nation, all east of Highway 85) were pen. To date, 44 Sonoran pronghorn of potential habitat outside of the ranked 1 and 2, respectively. have been released into the wild current range were the Ranegras and Public scoping for the Sonoran population. The goal of the facility is to Harquahala plains, King Valley at Kofa pronghorn population establishment produce at least 20 fawns each year for NWR north of Interstate 8; Sentinel project included three open houses held release to the current U.S. population, to Plain and other areas to the west in November 2008 on successive newly established population(s) in the between Interstate 8 and the Gila River; evenings at Yuma, Tucson, and United States, and to augment Mexican and areas not currently occupied south Phoenix, Arizona. After consideration of populations. of Interstate 8 and immediately west of public input, two alternatives were A number of other projects are under Highway 85. The models also identified carried forward in the National way to increase availability of green a large land area east of Highway 85 and Environmental Policy Act (NEPA) (42 forage and water during dry periods and south of Interstate 8 as potential habitat. U.S.C. 4321 et seq.) process, including seasons, offsetting to some extent the The authors did not evaluate potential establishment of Sonoran pronghorn in effects of drought and barriers that habitats in the far eastern portions of the Areas A and D, which we will prevent Sonoran pronghorn from historical range of the Sonoran implement as per this final rule. accessing greenbelts and water, such as pronghorn in Arizona (O’Brien et al. Specific population establishment the Gila River and Rı´o Sonoyta. Nine 2005, Figs. 3 and 4). O’Brien et al. (2005, techniques are described for both areas emergency water sources (six on Cabeza p. 32) further explained that their (see Release Procedures, below), and we Prieta NWR, one on OPCNM, and two models were an initial step toward are establishing Sonoran pronghorn as a on BMGR–West) have been constructed identifying and evaluating potential NEP in these areas under section 10(j) in recent years throughout the range of translocation sites. They recommended of the Act. the U.S. population. Four forage soliciting public input, and reviewing The NEP encompasses Areas A and D enhancement plots, each consisting of a predator presence and density, fencing, in Arizona, as well as all areas into

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which Sonoran pronghorn are likely to population or even part of a population, A and D with the objective of disperse. The NEP is defined as follows: since they are not in ‘‘common spatial maximizing the likelihood of success in An area north of Interstate 8 and south arrangement’’ sufficient to interbreed establishing herds, while minimizing of Interstate 10, bounded by the with other members of a population. the impact to the source population (the Colorado River on the west and The evidence suggests that the animals in the captive breeding pen at Interstate 10 on the east; and an area likelihood of a lone pronghorn crossing Cabeza Prieta NWR) and limiting south of Interstate 8, bounded by the NEP boundary is very low, so it mortality or injury to translocated Highway 85 on the west, Interstates 10 follows that the probability of that lone Sonoran pronghorn to the maximum and 19 on the east, and the United disperser encountering another Sonoran extent possible. In King Valley, Kofa States-Mexico border on the south. pronghorn of the opposite sex and NWR (Area A), a rectangular-shaped, Section 10(j) of the Act requires that reproducing is even more remote. 0.5-square-mile (sq.-mi) (1.29-square- an experimental population be wholly The status, as endangered or as a kilometer (sq.-km)) captive-breeding pen separate geographically from other wild member of the NEP, of any dispersing will be constructed. The pen will populations of the same species. The Sonoran pronghorn that manages to include water sources and irrigated Colorado River; Interstates 8, 10, and 19; cross Highway 85, Interstate 8, or other areas to enhance forage production, as and Highway 85, which form the barriers between the NEP and the well as two observation towers from boundaries of the NEP, are barriers to current range is defined geographically. which the animals will be monitored. In movement. Interstate 8 separates Area A Any Sonoran pronghorn within the NEP December 2011/January 2012, we from the current U.S. population, and area is considered a member of the anticipate moving 11 Sonoran Highway 85 forms a boundary between nonessential experimental population pronghorn (10 females and 1 male) to Area D and the current U.S. population. (including any dispersing animals from the pen from the captive-rearing pen at We do not expect Sonoran pronghorn to within the current range that cross into Cabeza Prieta NWR. These animals will cross these barriers. Brown and the NEP area), whereas any Sonoran be captured, either by use of a boma (a Ockenfels (2007, p. 29) found that high- pronghorn outside of the NEP is fully circular trap used inside the pen) or speed highways with right-of-way protected under the Act as an tranquilizer dart gun and moved one or fences, such as these, were virtually endangered species. two at a time by helicopter. Sonoran pronghorn-proof due to The geographical extent of the NEP Prior to movement to Kofa NWR, comprehensive fencing and high- designation includes areas unlikely to Sonoran pronghorn will be screened for volume traffic, and that interstate be used by Sonoran pronghorn, as only epizootic hemorrhagic disease (EHD) highways are effectively impassable for portions of this proposed NEP area and bluetongue (BTV). Both diseases the species. Only once, in 1973, has a contain suitable habitat. In the NEP can infect bighorn sheep and mule deer, Sonoran pronghorn been known to cross area, Sonoran pronghorn habitat is as well as Sonoran pronghorn. To Interstate 8 (Phelps 1981, p. 27). In limited to undeveloped areas within ensure these diseases are not 2008, a Sonoran pronghorn crossed valleys. Mountainous areas, such as the inadvertently moved to Kofa NWR, only Highway 85 and its associated right-of- Kofa, Castle Dome, Palomas, and Gila Sonoran pronghorn not exhibiting way fences into BMGR–E (Howard 2008, Bend mountains, do not provide habitat clinical signs (active lesions) of EHD pers. comm.); this is the only confirmed for this species; nor do developed areas and BTV will be transported to the new case of a Sonoran pronghorn crossing within the valleys, such as agricultural captive breeding pen at Kofa NWR. Highway 85 and its right-of-way fences. areas and towns and cities. However, Biennial rotation of the breeding male However, in July 2010, an unconfirmed the NEP area represents what we believe and death of any Sonoran pronghorn in sighting of a pronghorn doe was to be the maximum geographical extent the breeding pen at Kofa NWR would reported well east of Highway 85 in to which Sonoran pronghorn could require additional flights to bring new BMGR–E. This animal was not collared move if released in Areas A and D. Once animals from Cabeza Prieta NWR. or ear-tagged, so its origins are released into these areas, we expect the Methods perfected at Cabeza Prieta uncertain, but it presumably crossed Sonoran pronghorn population(s) to NWR will be employed in these Highway 85 into BMGR–E from the wild grow and expand into adjacent suitable activities, which have been used population. No other documented cases habitats, potentially moving to the successfully with minimal mortality of of Sonoran pronghorn crossing Highway boundaries of the NEP. In the unlikely pronghorn. 85 and its right-of-way fences are event that any of the released Sonoran Assuming successful captive-breeding known. pronghorn, or their offspring, move at the Kofa NWR pen, up to 20 Sonoran Nonetheless, in the unlikely event across interstate highways or other pronghorn will be released annually that a Sonoran pronghorn moves outside barriers (e.g., rivers or mountainous into suitable habitats outside of but the NEP, the individual or individuals areas, developed agriculture areas, or adjacent to the pen site at Kofa NWR, would not constitute a population. Our urban areas) to outside the designated beginning as early as the winter of 2012 regulations define ‘‘population’’ as a NEP area (but not into the area occupied or 2013 and recurring each winter until ‘‘group of fish or wildlife * * * in by the wild population), then the 2020. Sonoran pronghorn in the pen, as common spatial arrangement that Service will evaluate the need, in the well as animals released, will be closely interbreed when mature’’ (50 CFR 17.3) context of the 10(j) requirements, to monitored to determine success or need and thus determine that a ‘‘geographic amend the 10(j) rule to enlarge the for adaptive management. Success separation’’ is any area outside the area boundaries of the NEP area to include criteria will be developed by the in which a particular population the area of the expanded population. As recovery team prior to the release of any sustains itself. See Wyo. Farm Bureau discussed above, the likelihood of animals, but the objective will be to Fed’n v. Babbitt, 199 F. 3d 1224, 1234 Sonoran pronghorn moving from the continue releases until the population (10th Cir. 2000). These definitions NEP area into the current range is very can sustain itself without augmentation. preclude the possibility of population low. Concurrently, but only if excess animals overlap as a result of the presence of are available from the captive-breeding individual dispersing Sonoran Release Procedures pen at Cabeza Prieta NWR (not needed pronghorn—by definition lone The IDT developed the methods of to augment existing herds or for the pen dispersers do not constitute a release of Sonoran pronghorn into Areas at Kofa NWR), these animals will be

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captured from the pen, transported to a (d) The possible failure of this action There are existing military activities holding pen in Area D, held will not appreciably reduce the at Yuma Proving Grounds in Area A and temporarily, and then released as a likelihood of survival of the species in BMGR–E in Area D, but pronghorn have group. The holding pen in Area D is the wild, because (1) the first priority for coexisted with military activities for located in the Midway Well area near use of Sonoran pronghorn from the many years at the BMGR (deVos 1990, Hat Mountain (an area locally known as captive-breeding pen at Cabeza Prieta pp. 49–50; Krausman et al. 2004, pp. BMGR–E ‘‘Area B’’) in Maricopa County, NWR is to augment the wild herd, and 29–33; Krausman et al. 2005, pp. 20– Arizona. Ideally, the Sonoran pronghorn (2) recovery actions have been, and 22); as a result, we believe they will will be captured together and moved continue to be, implemented in the persist with the similar activities quickly to a holding pen, allowed to United States to reduce the effects of conducted at Yuma Proving Grounds recover for a brief period, and released drought on the species (Service 2009, and in Area D. Although some forms of together. pp. 9, 18–19). military activities could potentially Released animals in Area D will be (e) Through programs of work result in incidental death or injury of monitored via aircraft and on-the- endorsed by the Canada/Mexico/U.S. individual pronghorn, no incidental ground personnel to determine survival, Trilateral Committee for Wildlife and take has ever been documented due to reproduction, and other measures of Ecosystem Conservation and military activities, even before success. Details of the monitoring plan Management, the Service and AGFD precautions were set in place as a result will be developed prior to release and coordinate with our Mexican partners of section 7 consultations to minimize will include collection of enough data to on recovery actions for Sonoran the likelihood of such take at the BMGR. quantitatively determine if we are pronghorn in Mexico, enhancing the There is some likelihood of Sonoran meeting success criteria and, if not, likelihood of their survival and pronghorn drowning in canals in Area what needs to be corrected to ensure recovery. A. Canals are present in agricultural success. Through adaptive management, We will ensure, through our section areas on the southern, eastern, and release techniques and other 10 permitting authority and the section northeastern portions of Area A; management will be revised as needed 7 consultation process, that the use of Sonoran pronghorn are known to drown to ensure success. Additional Sonoran pronghorn from the donor in such canals (Rautenstrauch and description of the release procedures population at Cabeza Prieta NWR for Krausman 1986, p. 9). The major canal and monitoring protocols can be found releases in Areas A or D is not likely to in Area A most likely to be accessed by in the final EA (for copies of this jeopardize the continued existence of Sonoran pronghorn is the Wellton document, see ADDRESSES above). the species in the wild. Establishment of Canal, located north of the Gila River additional Sonoran pronghorn and on the northern edge of the Status of Reestablished Populations populations within the species’ agricultural lands in the Gila Valley. It We have determined that these historical range is a necessary step in is equipped with ramps and steps reestablished populations are recovery (Service 2002, p. 38). designed to prevent ungulate nonessential, based on the following: The special rule that accompanies this drownings. In addition, a series of (a) Wild populations of the Sonoran 10(j) rule is designed to broadly exempt wildlife water sources exists to the pronghorn, totaling about 562 to 572 take of Sonoran pronghorn from the north of the canal as alternative water animals, currently exist at: (1) Cabeza section 9 prohibitions outside of sources. Most of the canals elsewhere in Prieta NWR, OPCNM, BMGR, and National Wildlife Refuge and National Area A are too small to result in adjacent BLM lands; (2) in the El Park Service lands, as long as the take Sonoran pronghorn entrapment, or are Pinacate region of Sonora; and (3) south is incidental to otherwise lawful surrounded by agriculture or other and east of Highway 8 in Sonora. activities. We provide this exemption developments and are unlikely to be (b) A captive-breeding pen at Cabeza because we believe that incidental take accessed by Sonoran pronghorn. Other Prieta NWR maintains a captive of members of the NEP associated with activities such as recreational hunting population and provides stock to otherwise lawful activities will not pose and camping, vehicle use, livestock augment the wild populations in a substantial threat to the recovery of grazing, and small-scale rural or Arizona and Sonora. The pen has been Sonoran pronghorn, as activities that agricultural development, are highly successful. It was first stocked currently occur or are anticipated in the anticipated to either have minimal with Sonoran pronghorn in 2004; the NEP area are generally compatible with effects on Sonoran pronghorn or will be original group of 11 animals has grown Sonoran pronghorn recovery. For limited in extent (e.g., rural and to 69 (May 2010), and another 44 example, in Area A, there are vast agricultural development). Sonoran pronghorn have been released expanses of open valleys without major Under section 7(a)(1) of the Act, all from the pen into the wild. barriers to Sonoran pronghorn Federal agencies are mandated to use (c) The first priority for use of animals movement that provide suitable habitat. their authorities to conserve listed in the captive-breeding pen at Cabeza These valleys include King Valley at species. In addition, the BLM has a Prieta NWR is to augment herds within Kofa NWR, Palomas Plain, the southern policy of conferring with the Service, the boundaries of the current range of end of the Ranegras Plain, and portions under section 7(a)(4), on their actions the species. Relocation of Sonoran of the Yuma Proving Grounds. The La that may affect proposed species (BLM pronghorn from the captive breeding Posa Plain and Castle Dome Plain also 6840 Manual). Some activities do have pen to Kofa NWR will not appreciably provide habitat. Highway 95 runs north- greater potential to compromise the inhibit the augmentation efforts for the south through those plains, and success of the Sonoran pronghorn herds within the boundaries of the although it may somewhat inhibit reestablishment than those described current range of the species. Sonoran movement to the west side of those above. For instance, construction of new pronghorn produced at the Cabeza plains, it is not a substantial barrier highways, particularly those with rights- Prieta NWR pen that are not needed to because it lacks right-of-way fences. In of-way fencing, or new canals in the augment herds within the current range Area D, there is considerable habitat in NEP could create barriers to movement or to populate the Kofa NWR pen will the valleys among the Sauceda, Sand and bisect important pronghorn be used to establish a population in Tank, Batamote, and other mountains in habitats. There is also the potential for Area D. that region. BLM to permit large-scale solar power

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plants, which would be constructed in of Kofa NWR) will be subject to the information regarding take can be found the valleys and could eliminate up to consultation requirements. Some in the Regulation Promulgation section tens of thousands of acres of habitat. Federal agencies, such as BLM, that of this final rule. Other BLM-authorized projects, such as propose actions outside of Kofa NWR or (b) Special handling: In accordance agricultural leases, could also National Park Service lands may elect to with 50 CFR 17.21(c)(3), ‘‘any employee potentially remove large blocks of work with the Service voluntarily or agent of the Service, any other habitat and perhaps compromise the through the section 7(a)(4) conferring Federal land management agency, the success of this project. The potential for process to ensure that adverse effects of National Marine Fisheries Service, or a these projects to impact the their actions on Sonoran pronghorn in State conservation agency, who is reestablishment is probably greatest on the NEP area are minimized. designated by his agency for such BLM lands in the valleys to the east of The Service (Cabeza Prieta NWR, Kofa purposes, may, when acting in the Kofa NWR. The Service will have the NWR, and the Ecological Services office course of his official duties’’, handle opportunity through the section 7(a)(4) in AZ), AGFD, OPCNM, Luke Air Force Sonoran pronghorn to aid sick or conference process to work with the Base, BLM, and other partners, in close injured Sonoran pronghorn, or to BLM to minimize the potential adverse coordination with the Sonoran salvage dead Sonoran pronghorn. effects of solar plants, agricultural Pronghorn Recovery Team, will plan However, other personnel and their leases, highways, or other projects that and manage the establishment of new agents, not specifically named in these may compromise Sonoran pronghorn populations of Sonoran pronghorn. This regulations, will need to acquire permits recovery. group will closely coordinate on from the Service for these activities. releases, monitoring, and coordination (c) Coordination with landowners and Management with landowners and land managers, land managers: During the NEPA The lands within the NEP area are among other tasks necessary to ensure scoping process, the Service and managed and listed in descending order successful population establishment. cooperators identified issues and of acreage within areas A and D as Management issues related to the concerns associated with the proposed follows: Area A—the Service (Kofa Sonoran pronghorn NEP that have been Sonoran pronghorn population NWR), Department of the Army (Yuma considered include: establishment. The population Proving Grounds), BLM, Arizona State (a) Mortality: ‘‘Incidental take,’’ as establishment was also discussed with Lands Department, private landowners, defined by regulation at 50 CFR 17.3, is potentially affected State agencies, and Colorado River Indian Tribes; Area take that is incidental to, and not the tribes, and private landowners. All land D: Tohono O’odham Nation, BLM, purpose of, the carrying out of an owners and managers also had an Department of the Air Force (BMGR–E), otherwise lawful activity, such as opportunity to review and comment on private owners, and Arizona State Land agricultural activities and other rural the draft EA and proposed rule. State Department. Outside of Areas A and D, development, ranching, military and Federal land management agencies but within the NEP, land ownership is training and testing, camping, hiking, either supported or did not oppose the similar, but also includes lands within hunting, vehicle use of roads and reestablishment of a Sonoran pronghorn the Gila River Indian Reservation, Ak- highways, and other activities that are herd and designation as a NEP; Chin Indian Reservation, Pascua Yaqui in accordance with Federal, Tribal, however, at least two private Indian Reservation, San Xavier State, and local laws and regulations. landowners in the NEP expressed Reservation, Buenos Aires NWR, With the finalization of this 10(j) rule, opposition to the proposal. U.S. Saguaro National Park, OPCNM, Tucson incidental take of Sonoran pronghorn Customs and Border Protection strongly Mountain Park, and Coronado National within the NEP area outside of National encouraged limiting reestablishment to Forest. Due to the management Wildlife Refuge and National Park Area A. See the section Summary of flexibility provided by the NEP Service lands will not be prohibited, Public and Peer Review Comments and designation and the special rule, we do provided that the take is unintentional, Recommendations below for summaries not anticipate that establishment of not due to negligent conduct, and is in of those comments and how we Sonoran pronghorn in Areas A or D and accordance with the special rule that is addressed any concerns. subsequent dispersal of Sonoran a part of this 10(j) rule. However, if (d) Monitoring and Adaptive pronghorn from the release sites will there is evidence of intentional take, not Management: A monitoring and affect management on Tribal, BLM, authorized by the special rule or by a adaptive management plan for the National Forest, Department of Defense, section 10 permit, of a Sonoran population establishment program will State, or private lands. pronghorn within the NEP we will refer be implemented by the Service, AGFD, Through section 7 consultations on the matter to the appropriate law and other partners to determine if the NWR lands and National Park Service enforcement entities for investigation. program is successful, and to adjust lands, some changes in management We expect levels of incidental take to be management as needed to ensure may occur to reduce adverse effects to low, because, as discussed in paragraph success. Success criteria have not yet Sonoran pronghorn, including (d) under Status of Reestablished been finalized, but they will include the minimizing the likelihood of incidental Populations, above, the establishment of concept that the objective of the take. However, we believe few changes new populations is compatible with program is to establish Sonoran will be needed, because management of most existing human use activities and pronghorn herds that are self-sustaining these lands already is broadly practices for the area. In the current without augmentation via releases from compatible with Sonoran pronghorn range of the Sonoran pronghorn in the captive pens or holding facilities, recovery. Other Federal agencies that United States, no incidental take has thereby contributing to recovery goals. propose actions on Kofa NWR or been documented from military The monitoring will assess all aspects of National Park Service lands will also be activities, recreation, use of highways, the population establishment program, required to consult with us under and most other activities that occur both from capture and movement of the section 7 of the Act, if such activities in the current range and in the NEP, the animals to the captive breeding pen may affect Sonoran pronghorn. For exception being canals, in which (Area A) or holding area (Area D), instance, some activities conducted by Sonoran pronghorn have drowned on monitoring of the animals in these Yuma Proving Grounds (e.g., overflights several occasions. More specific captive facilities, and monitoring and

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tracking released Sonoran pronghorn in evaluated in the EA and FONSI, all definition of threatened or endangered, the release areas, including Sonoran necessary environmental compliance is not a decision that Congress intended pronghorn water sources and any forage will be completed before those revised to undergo section 7 consultation. enhancement vegetation plots techniques or methods are Actions associated with the developed to support the established implemented. Additional details of the establishment of the experimental herds. Monitoring of released Sonoran monitoring and adaptive management population, such as construction of pens pronghorn will be conducted to plan, including quantifiable and or the movement of wild animals, will determine the following: measurable success criteria, will be undergo section 7(a)(2) consultation, as (1) Mortality and recruitment rates, finalized and posted on our Web site at appropriate. (2) causes of mortality among adult http://www.fws.gov/southwest/es/ and juvenile Sonoran pronghorn, Summary of Public and Peer-Review arizona/ prior to release of Sonoran Comments and Recommendations (3) reliance on freestanding water pronghorn into Areas A or D. sources, (e) Public awareness and cooperation: On February 4, 2010, we published (4) movement corridors and barriers Public scoping for the Sonoran our proposed rule to establish a NEP of to movements, and pronghorn population establishment Sonoran pronghorn in southwestern (5) habitat preferences. project was conducted in the fall of Arizona (75 FR 5732), and requested Each released animal will be fitted 2008. Actions included an October 30, written comments from the public on with an ear tag and radio collar. A 2008, scoping letter sent to the proposed rule and draft EA. We also limited number of Sonoran pronghorn approximately 6,000 recipients, a news contacted the appropriate Federal, State, will be fitted with Geographic release to local media sources, and a and local agencies; tribes; scientific Positioning System (GPS) platform series of 3 open houses held in the organizations; and other interested telemetry collars. It is expected the GPS Arizona cities of Yuma, Tucson, and parties and invited them to comment on transmitters will function for up to 3 Phoenix, during November 18–20, 2008. the proposed rule and draft EA. The years. Telemetry flights with a fixed- We accepted written public scoping initial comment period was open from wing aircraft will be conducted twice a comments until December 12, 2008. We February 4, 2010, to April 5, 2010. A month. Each Sonoran pronghorn will be received 44 written responses about the second comment period was open from observed from an altitude of 1,000 feet project. In our EA, we discussed issues June 9, 2010, to July 9, 2010 (75 FR (ft.) above ground level with the aid of identified in the responses. The IDT and 32727). A public hearing was held in binoculars. Group size and composition the Service used these issues to refine Gila Bend, Arizona, on February 23, (sex and age), habitat type, and terrain the proposed action and alternatives in 2010; however, no verbal or written will be recorded. Additional monitoring the EA, and to identify mitigation comments were submitted at that of individual Sonoran pronghorn and measures to avoid or reduce potential hearing. herd movements will be done from the project effects. The IDT and the Service In accordance with our policy on peer ground, particularly from high points also used the public concerns to review, published on July 1, 1994 (59 where valley habitats of the Sonoran determine which resources would be FR 34270), we solicited opinions from pronghorn can be viewed. All the greatest focus of the EA analysis. three expert biologists who are familiar monitoring flights and on-the-ground The comments received during the with this species regarding pertinent surveillance will be closely coordinated scoping process are listed in the EA, and scientific or commercial data and with and approved by the tribal, were considered in the formulation of assumptions relating to supportive military, and other land managers and alternatives considered in the NEPA biological and ecological information for owners where such monitoring will process. The following section describes the proposed rule. Reviewers were occur. As Sonoran pronghorn become the public outreach we conducted and asked to review the proposed rule for established and breed in the the responses received during the public accuracy and validity of its biological establishment areas, the percentage of and peer review comment periods on information and assumptions. Two out animals tagged or radio-collared will the proposed rule and draft EA. of three peer reviewers provided decline over time, and additional comments. They were both supportive animals may need to be captured and Section 7 Consultation of the proposal to reestablish the radio collared to adequately monitor the A special rule under section 4(d) of Sonoran pronghorn in areas of herds. We will attempt to maintain the Act is included in this establishment southwestern Arizona, but suggested radio collars on at least 10 percent of a of an experimental population under revisions or had some questions about population. section 10(j) of the Act. A population the proposal. The remaining peer Monitoring data will be assessed designated as experimental is treated for reviewer asked for additional regularly by the Recovery Team, and the purposes of section 9 of the Act as information, but did not submit a final methods will be revised as needed to threatened, regardless of the species’ peer review. Their letter requesting increase the likelihood of successful designation elsewhere in its range. The additional information is counted as a population establishment and to development of protective regulations response, with no position taken. increase efficiency. A comprehensive for a threatened species is an inherent We reviewed all comments received review, assessment, and report of the part of the section 4 listing process. The from the peer reviewers, agencies, and reestablishment program by the Service must make this determination the public for substantive issues and Recovery Team will occur at a considering only the ‘‘best scientific and new information regarding the proposed frequency of no less than once every 5 commercial data available.’’ A necessary NEP. Substantive comments received years. If at any point the program is not part of this listing decision is also during the comment period have been meeting its stated objective, or is falling determining what protective regulations addressed below and, where short of meeting the success criteria, are ‘‘necessary and advisable to provide appropriate, incorporated directly into techniques and methods will be for the conservation of [the] species.’’ this final rule. The comments are reviewed and revised as needed to Determining what prohibitions and grouped below as peer review and correct problems and increase the authorizations are necessary to conserve agency or public comments. likelihood of success. If revisions fall the species, like a listing determination We received responses from 29 outside the scope of the action of whether the species meets the parties, comprising private individuals

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(15), nongovernmental organizations (4), needed to pinpoint the adequacy of across barriers including, on at least two peer reviewers (3), state agencies (2), habitat prior to releases. Cholla is a key occasions, the right-of-way fence along Federal agencies (3), university (1), and forage plant that is missing or scarce Highway 85, a vehicle barrier anonymous (1). Some commenters north of Interstate 8. Supplemental constructed on the U.S./Mexico border, clearly supported (10), opposed (4), or feeding may be necessary in that area and Highways 2 and 8 in Sonora, took no position (7) on the proposal. In during prolonged drought. Mexico. Released Sonoran pronghorn addition, two supported the Our Response: As discussed under that wander over large areas tend to reestablishment, but opposed the NEP. ‘‘Reestablishment Areas’’ above, an IDT continue these long-distance One supported population was tasked with identifying and ranking movements until they find and join an reestablishment, but conditioned their possible reestablishment areas within existing herd or another Sonoran support of the NEP on continued strong the historical range of the Sonoran pronghorn. Although such movements commitment by the Department of pronghorn. Areas A and D ranked first are expected to be unusual, we agree Defense to Sonoran pronghorn and second of seven areas identified. that as Sonoran pronghorn are released conservation. One conditioned their Potential locations for a captive pen at and as populations grow, individuals support on implementation of predator Kofa NWR are somewhat limited by will periodically make long-distance control, acknowledgement of the extensive wilderness designation that movements and some animals could importance of water sources, and no precludes construction and operation of potentially move across Highway 85 impacts to hunting. Two others opposed that facility. Hence a block of non- from Area D into areas occupied by the the proposal unless predator control wilderness, large enough to wild herd. Similarly, Sonoran was conducted. One supported the Kofa accommodate the pen, was selected in pronghorn released from the pen at NWR reestablishment but not the northern King Valley. This is a good Cabeza Prieta NWR may occasionally BMGR–E reestablishment, and one location, because the pen will be located move across Highway 85 into Area D. supported the BMGR–E reestablishment, off well-traveled roads, yet it is Although these movements could but opposed the NEP and establishment relatively close to Highway 95, the occur more frequently as populations on of a population at Kofa NWR. access route from Yuma, and its location both sides of Highway 85 increase, we The two peer reviewers who in the northern part of the valley do not anticipate they will ever be more submitted comments agreed with the provides an opportunity for pronghorn than rare events for the reasons following determinations: (1) The released directly from the pen to spread discussed in ‘‘Reestablishment Areas’’ proposed establishment of out throughout King Valley before above, hence we do not anticipate experimental, nonessential populations moving off-refuge to areas of Yuma overlap of the wild population and the of Sonoran pronghorn is well Proving Grounds or BLM lands. The IDT NEP. Lone dispersers do not constitute considered and has great potential to considered the absence of chain fruit a population or even part of a enhance the status of Sonoran cholla on Kofa NWR in its rankings of population, because they are not in pronghorn in the United States, and (2) the seven areas. One of the seven ‘‘common spatial arrangement’’ proposed survey, monitoring, and criteria used to rank the areas was forage sufficient to interbreed with other capture techniques, and operation of the quality. The absence of chain fruit members of a population (see discussion captive breeding pen, are within cholla is a concern; however, the value under ‘‘Reestablishment Areas’’). accepted practices in wildlife of that plant in the diet of the Sonoran Furthermore, the likelihood of a management. However, one commenter pronghorn is primarily as a source of Sonoran pronghorn moving from the asked that the details of the monitoring preformed water; it provides little release site on BMGR–E south to the program and success criteria be more nutrition (Fox 1997, pp. 76, 79). As a area east of Highway 85 in OPCNM is clearly stated. result, if freestanding water is available remote, because a Sonoran pronghorn or can be provided dependably, the would have to traverse miles of rugged Peer-Review Comments importance of chain fruit cholla in the terrain from the holding pen at Midway (1) Comment: Continual improvement diet is much reduced. Five water Wash through the Batamote/Coffee Pot in capture methods should be pursued sources outside of the pen at Kofa NWR Mountain region to reach the Hickiwan on non-endangered subspecies across will be built to provide dependable Valley or Pozo Redondo Valley, and the range of the pronghorn to increase water for Sonoran pronghorn. Water then move south and west from there efficiency in capturing and maintaining sources and chain fruit cholla are across Highway 86 and through the captive populations. available on BMGR–E in Area D near Gunsight Hills, then down the western Our Response: Consistent with where the holding pen will be bajada of the Ajo Mountains. Years of Adaptive Management in the EA and constructed, and, if needed, additional surveys have shown that Sonoran the recovery plan, we will continue to water sources will be constructed; Pronghorn do not use the rugged slopes evaluate new information, including hence, water for drinking is not and mountainous terrain characteristic publications, reports, and personal anticipated to be a limiting factor at of this area (Hervert et al. 2005, p. 12). communications with others working on BMGR–E. (4) Comment: One peer reviewer Sonoran pronghorn throughout its (3) Comment: The movement of expressed concern that there is a remote range. We will also learn from our released Sonoran pronghorn might be possibility of a Sonoran pronghorn experiences with Sonoran pronghorn to underestimated, particularly as the moving through Area D south and east fine tune and improve capture populations grow. In particular, there is to Buenos Aires NWR, where a methodologies, with the goal of a possibility of Sonoran pronghorn population of Mexican pronghorn minimizing stress and the possibility of moving south in Area D into Organ Pipe (Antilocapra americana mexicana) injury or mortality of captured animals, Cactus NM east of Highway 85, and then currently exists. while increasing efficiency of capture west into the areas occupied by the wild Our Response: Buenos Aires NWR is operations. population. in the southeastern portion of the NEP (2) Comment: Although habitat Our Response: Some of the young area, and is within the historical range modeling to identify habitat suitable for male Sonoran pronghorn released from of the Sonoran pronghorn (Service 2002, reestablished populations is adequate at the pen in Cabeza Prieta NWR have p. 17). The NEP area includes all regions the landscape scale, additional work is moved extraordinary distances, and into which Sonoran pronghorn could

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potentially move from release sites. management, this needs to be clearly brought to the United States if the Although over 90 miles southeast of the stated. current population crashes. release site, we agree there is a small Our Response: Some level of Our Response: The 1998 revision of probability that Sonoran pronghorn management will always be needed to the Sonoran Pronghorn Recovery Plan could reach Buenos Aires NWR at some maintain the reestablished herds. These established downlisting criteria to point in the future. The major barrier management actions will be undertaken reclassify the subspecies from between the two areas is likely a by the Service, in conjunction with our endangered to threatened. Included in complex of rugged terrain between the partners, including AGFD. The Sonoran the downlisting criteria were release site and Sonoran pronghorn pronghorn will need to be monitored to stipulations that an estimated 300 adult habitat to the east and south, formed by track their status, water sources will Sonoran pronghorn occur in one U.S. the Batamote, Sauceda, Sand Tank, and need to be maintained for them, and the population and a second separate other ranges. If a Sonoran pronghorn lands they occupy must remain as population be established in the United could get past that barrier, then habitat capable of supporting a viable States, or numbers are determined to be potentially it could move through the herd. However, once a population is adequate to sustain the population valleys of the Tohono O’odham Nation, established to the degree that additional through time (Service 1998, p. 37). At and then around the north end of the augmentation is no longer needed to 80–90 wild Sonoran pronghorn, the Quinlan Mountains, across Highway 86 sustain it, we anticipate that some current U.S. population is not safe from and south through the Altar Valley to intensive management actions, extinction. A 1996 population viability Buenos Aires NWR. Historically a more including the maintenance of a captive analysis concluded that at least 300 direct route probably existed south of rearing pen, will no longer be necessary. Sonoran pronghorn were needed in a the Baboquivari Mountains in Mexico, (7) Comment: Not enough information population to achieve reasonable but a vehicle barrier and livestock fence is presented to determine if the population persistence over time; on the United States/Mexico border now proposed monitoring will be adequate to however, to prevent loss of genetic block that route. determine whether the program is diversity, 500 or more animals were In the unlikely event that a Sonoran successful, and to better determine the needed (Defenders of Wildlife 1996, p. pronghorn reached Buenos Aires NWR, role of water and forage enhancement vii). The 2002 Supplement and the Service would be required to assess plots in recovery, mortality, and Amendment to the Recovery Plan the effects of its actions at the refuge, recruitment rates; causes of mortality by identified ‘‘evaluating potential including managing herds of Mexican age and sex, movements; and the role of transplant locations, establishing pronghorn, and conduct intra-Service habitat in the life history of the Sonoran relocation methodology and protocols, section 7 consultation if those activities pronghorn. developing interagency agreements may affect the Sonoran pronghorn. A Our Response: The monitoring should (including with Mexico as required), decision on how to proceed would not only allow us to determine whether acquiring funding, and initiating emerge from that process and would be the program is a success, but if it is reestablishment projects’’ as one of eight based on the circumstances at the time. failing to meet its objectives, the priority, near-term actions needed to (5) Comment: The proposed rule reason(s) why it is failing must emerge further recovery (Service 2002, p. 38.). stated that success criteria would be from the monitoring data. The latter is In regard to bringing additional animals developed by the recovery team prior to crucial for making appropriate changes north from Sonora, Mexico, to augment release of any Sonoran pronghorn into in management to correct problems and the U.S. population, we cannot depend areas A or D. Success criteria drive the ensure we achieve sustainable herds in on the continued availability of Sonoran types of monitoring needed. Some Areas A and D. Although our pronghorn from Sonora, both in terms of parameter(s) of success need to be monitoring plan is not yet complete, required international permits and the identified. released animals in Area D will be ability of Mexican populations to Our Response: Broadly defined, monitored primarily via aircraft to sustain additional harvest. In success will be measured by our ability determine survival, reproduction, and conclusion, establishing additional to achieve the purpose of the program, other measures of success. We herds of Sonoran pronghorn in the which, as stated in the EA (p. 19) and acknowledge that all of the parameters United States is consistent with the our recovery plan (Service 2002, p. 38), noted by the commenter above are recovery plan for the species and will is to contribute to recovery of the important in terms of tracking the status further its recovery, consistent with Sonoran pronghorn by establishing of Sonoran pronghorn populations. All Service mandates under section 4(f)(1) additional populations in suitable of these factors will be carefully of the Act. habitat within its historical range in considered in the development of the (9) Comment: Part of the funding for Arizona. In accordance with 50 CFR monitoring program in Areas A and D. the population reestablishment is 17.81(c)(4), a technical definition of coming from the Department of what it means to establish a population Public Comments Homeland Security (DHS) as mitigation of Sonoran pronghorn will, as the (8) Comment: Establishment of for damage to Cabeza Prieta NWR, so the commenter notes, be forthcoming; additional herds of Sonoran pronghorn money should be spent at Cabeza Prieta however, it will almost certainly involve in the United States is not needed NWR. the presence of Sonoran pronghorn because the animals at Cabeza Prieta Our Response: Funding provided by surviving and breeding in the wild to an NWR are safe from extinction. DHS for the establishment of additional extent that, at some point, release of Specifically, their continued existence Sonoran pronghorn herds in the United additional animals to augment the is ensured because Sonoran pronghorn States was closely negotiated, and the population—either via the captive have been captively reared, resulting in use of those funds was specifically breeding pen at Kofa NWR or the a wild population of greater than 70 defined for certain recovery actions. holding pen in Area D— is no longer animals. An awareness of the Mitigation funds for establishment of needed to sustain the population. population’s precarious nature has been additional U.S. herds were secured to (6) Comment: If the reestablished raised, their status will be closely mitigate effects of vehicle barriers at populations cannot be sustained into watched, and animals from self- Cabeza Prieta NWR and the BMGR, and the future without intensive sustaining herds in Mexico can be the effects of the Ajo 1 SBInet Tower

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Project. The purpose of this mitigation No predator control is proposed above, are not anticipated; however, was to offset effects to Sonoran outside the pen at Kofa NWR and the consistent with proposed adaptive pronghorn from these projects, not to holding facility at BMGR–E, because management and recovery actions 2.411 mitigate or repair damage to resources at predation types and levels are and 2.412 in the recovery plan, we will Cabeza Prieta NWR. Consistent with the anticipated to be similar to those at evaluate the monitoring data and recovery plan, one of the greatest needs Cabeza Prieta NWR, where up to this propose additional water sources if for recovering the Sonoran pronghorn is point, predator control has not been deemed necessary to support the to establish additional herds, off of deemed necessary to recover the reestablished populations. Any Cabeza Prieta NWR. The Service and Sonoran pronghorn. We anticipate that additional water sources proposed at DHS agreed that use of the mitigation predation of released animals in Area A Kofa NWR would be outside the current funds to establish additional Sonoran and D is unlikely to affect the success scope of the program and supporting pronghorn herds outside of the current of the reestablishments, and mortality of environmental compliance; hence range was an appropriate offsetting released animals due to predators is additional coordination with land measure. expected to be similar to that managers and AGFD and all necessary (10) Comment: The proposed experienced at Cabeza Prieta NWR. We environmental compliance would be reestablishment will fail unless will monitor the success of the completed prior to construction of any predators of Sonoran pronghorn are population reestablishments, and additional water sources. controlled. Specifically, commenters consistent with adaptive management (12) Comment: The five water sources mentioned the need to control mountain and recovery actions 2.411 and 2.412 in outside of the captive pen at Kofa NWR lions at Kofa NWR and coyotes. the recovery plan, we will evaluate the should have their locations generally Our Response: Coyote, mountain lion, monitoring data and propose additional described and mapped. Some flexibility and bobcats are known to prey on actions, if deemed necessary. Those in locations is desirable, so precise Sonoran pronghorn (Service 2002, p. additional actions could include locations are unnecessary. Cultural 22). Predation generally has an predator control outside of the captive resource surveys should be conducted insignificant effect except on small breeding pen at Kofa NWR or the prior to construction, and water sources populations (Lee et al. 1998, p. 61). holding pen at BMGR–E. However, should be built with the minimum Coyotes are the most abundant large predator control outside the pens is not disturbance necessary and in the least predator sympatric with Sonoran covered in the EA for establishing a NEP visually obtrusive manner possible. pronghorn. In 20 mortality of Sonoran pronghorn at Kofa NWR or Our Response: The approximate investigations not related to capture BMGR–E. Hence, if predator control locations of the five water sources operations, coyotes killed at least 5 were proposed, it would be closely outside the pen at Kofa NWR have been Sonoran pronghorn and are suspected in coordinated with land managers and identified and mapped in the EA (p. 36). the death of another. Of 23 Sonoran AGFD, and would only proceed after all Cultural resource surveys shall be pronghorn released from the captive required environmental compliance was conducted prior to any ground- breeding pen at Cabeza Prieta NWR in completed. disturbance activities, and the water December 2009, 4 were predated by (11) Comment: Development of sources will be built with the minimum coyotes within the first 3 weeks. Since additional water sources, such as disturbance necessary and in the least that time, one other Sonoran pronghorn wildlife drinkers or tanks, should be visually obtrusive manner possible. found dead from the original group of undertaken to support the population (13) Comment: The efficacy of 23 was probably predated, although the reestablishments. In addition, an ‘‘Adopt additional water sources outside of the type of predator is unknown (Atkinson a Game Tank’’ program should be pens is questionable based on published 2010, pers. comm.). Coyotes are thought implemented for interested parties to studies. The effects of additional water to prey heavily on Sonoran pronghorn monitor, maintain, and repair water sources on other species, as well as fawns as well. tanks for wildlife and game species. degradation of areas around water Steps will be taken to deter predators Our Response: At Kofa NWR, we sources as a result of increased wildlife from entering the captive breeding pen propose to develop up to seven water use, need to be fully evaluated. at Kofa NWR, including a perimeter sources for Sonoran pronghorn, Our Response: The benefits and costs fence constructed of woven wire 5.5 ft. including up to two inside of the pen of water developments for wildlife in (1.7 m) tall and buried 1 ft. (0.3 m) into and five outside of the pen, but none in the arid southwest have been debated the ground. The interior of the fence the Kofa Wilderness. At BMGR–E and for many years (see reviews in will be lined with material that will Area D, numerous developed wildlife Rosenstock et al. 1999 and Krausman et create a visual blind for predators. In water sources occur in paloverde-mixed al. 2006). Artificial water sources in the addition, two layers of electric fences cacti-mixed scrub vegetation on the southwest are used by a variety of will be installed just outside of the bajadas that could potentially be used wildlife species, with nongame species woven wire fence to deter predators. by Sonoran pronghorn. As a result, no far outnumbering game species (O’Brien Monitors will check for presence of new water sources are planned for Area et al. 2006, pp. 544–548). Some species Sonoran pronghorn predators inside the D; however, the need for additional will use freestanding water pen and holding facility daily, and if wildlife water sources will be evaluated opportunistically, whereas others any are found, they will be removed. and, if needed, new water sources will require it to occupy an area (Krausman The holding facility at BMGR–E will be be installed to support the reestablished et al. 2006, pp. 565–566). Water sources equipped with 5.5-ft (1.7-m) tall woven Sonoran pronghorn. Construction of any can affect the distribution of wildlife wire, but it will not be buried and no additional water sources in Area D species and habitat use patterns of electric fence will be installed. would be preceded by cultural resource individuals, although in some cases the However, the potential for predation surveys and any necessary effect is small (Marshal et al. 2006a, pp. will be minimized because pronghorn environmental compliance. The water 616–617). There is no evidence that will not be in the facility for more than sources at Kofa NWR were planned in water catchments elevate predation a few days, and someone will be staying anticipation of the needs of the Sonoran rates on wildlife (O’Brien et al. 2006, p. with them all the time until they are pronghorn. Additional water sources at 589), and plant communities and forage released. Kofa NWR, beyond those mentioned resources in washes with water sources

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do not differ from washes without 1982 version of the recovery plan Mexican gray wolf NEP designation as water, providing no evidence that water (Service 1982, p. 2) adopted the a case in point. Another commenter sources cause detrimental effects to distribution as interpreted by Hall and offered the example of the NEP Sonoran Desert plant communities via Kelson (1959, p. 1023), which did not population of California condor in herbivory or trampling by animals show the subspecies occurring in Arizona, which they asserted is being attracted to the water (Marshal et al. California. However, Mearns (1907, p. used as an excuse not to limit lead 2006b, pp. 621–622). Construction of 231) mentions observing pronghorn ammunition in the California condor the five water sources outside the pen tracks near ‘‘Gardner’s and Laguna recovery area. and up to two water sources inside the stations’’ in 1894 in the Colorado Desert Our Response: Because the pen at Kofa NWR will have a west of the Colorado River. Figure 2 in establishment of a second Sonoran disturbance footprint, but the acreage the 1998 recovery plan (Service 1998, p. pronghorn herd is identified as a affected is small (about 0.5 acre in total), 6) and in the 2002 revision (Service downlisting criterion in the recovery and most of the disturbance will be 2002, p. 17) show the historical plan (Service 2002, p. 36), if such temporary. None of the water sources distribution extending into California establishment failed, it would adversely are proposed in wilderness. north to the vicinity of Blythe and affect recovery. However, we do not Monson (1968, pp. 67–68) found there westward into an area that includes the believe the loss of the experimental was no hard evidence that Sonoran Chuckwalla Bench. Figure 1 of the 1998 population would reduce appreciably pronghorn drink freestanding water; plan extended the range north to the the likelihood of the survival of the rather, he surmised they obtained all the vicinity of Parker Dam. The southern species in the wild, which is why we water they need from the plants they boundary of the Mojave National are designating the reestablished consume. However, more recent work Preserve is Interstate 40, which is no population as a nonessential indicates they drink water, and that it is closer than 70 miles to Parker Dam. experimental population. The Sonoran probably crucial for survival during We find no other reference suggesting pronghorn occurs in three other seasonal and long-term drought periods Sonoran pronghorn occurred populations, including two in Mexico (Fox et al. 2000; pp. 1–18; Morgart et al. historically any closer to the Mojave and one in southern Arizona. Currently, 2005, pp. 57–58). Hervert et al. (2005, p. National Preserve than Parker Dam. As the total in all three populations is 14) found that placement of water a result, establishment of Sonoran approximately 562 to 572 animals in the sources in palo verde-mixed cacti pronghorn at the Preserve will be wild. As described above under associations, such as occur in King outside of its historical distribution as ‘‘Recovery Efforts,’’ a variety of Valley of Kofa NWR, would likely we understand it. Although section 10(j) aggressive management actions have functionally convert them to higher of the Act does not limit experimental been to taken to avert catastrophic quality habitats, in some cases making populations to a species’ historical declines in the U.S. population in the them suitable for Sonoran pronghorn. range, the suitability of habitats that are event of a drought. The first priority for This could be especially important at clearly outside of the historical range is use of animals in the captive-breeding Kofa NWR, where chain fruit cholla is questionable. Moreover, our analysis of pen at Cabeza Prieta NWR is to augment absent, but at Cabeza Prieta NWR, it is potential reestablishment sites was herds within the boundaries of the an important source of preformed or limited to portions of the historical current range of the species in the dietary water for Sonoran pronghorn range in Arizona (O’Brien et al. 2005, p. United States and Mexico; hence, any (Fox et al. 2000, pp. 1–18). Currently 25); the suitability of the Mojave use of animals to establish herds in existing developed and natural wildlife National Preserve as a potential Areas A or D would only be carried out water sources within Area A are establishment site has not been after the needs of the wild populations primarily located in habitats that are not evaluated. As a result, pursuing an are met. For these reasons, and for likely to be used by Sonoran pronghorn additional herd of Sonoran pronghorn at further justification for why or used only infrequently. For example, the Mojave National Preserve is not a reestablished Sonoran pronghorn herds there are no developed wildlife water desired action at this time. are not essential to the continued sources in potential Sonoran pronghorn (15) Comment: One commenter existence of the species, refer to the habitat in King Valley. Creating new supported the reestablishment proposal, section ‘‘Status of Reestablished water sources for the reestablished but believed it was inappropriate to Populations.’’ Sonoran pronghorn herd in Area A is allow hunting of Sonoran pronghorn. In regard to authorized take important to the success of the project. Our Response: Hunting of Sonoran precluding recovery, the Sonoran Sonoran pronghorn will benefit, with pronghorn is currently prohibited by pronghorn population reestablishments minimal impacts to plant communities, section 9 of the Act. This designation of are very different from that of the other wildlife, and wilderness values. a NEP with a special rule will not Mexican gray wolf or California condor. (14) Comment: One commenter change that prohibition. As detailed in the special rule, only take suggested that if Sonoran pronghorn (16) Comment: Designation as a NEP incidental to otherwise authorized once inhabited the Chuckwalla Bench or implies that the proposed release and activities plus intentional take as East Mojave of California, then the subsequent establishment of an necessary for translocation, aiding sick Mojave National Preserve should be additional wild population can fail Sonoran pronghorn, taking biological considered as a reestablishment site. completely without adverse data, salvaging dead Sonoran Our Response: Although the historical consequence to the continued existence pronghorn, or affixing, removing, or distribution of the Sonoran pronghorn is of the species. This conclusion lacks servicing radio transmitters will be not entirely known, none of the reports scientific support; thus the population allowed. As described in the sections or publications we have reviewed should be given full protection under ‘‘Status of the Reestablished indicate the Sonoran pronghorn ranged the Act or designated as an Populations’’ and ‘‘Management,’’ we into what is known today as the Mojave experimental, essential population. anticipate very little mortality or injury National Preserve in California. Phelps Commenters also note that agency associated with military, recreational, and Webb (1981, p. 21) show the authorized take under 10(j) rules can be agricultural, and other uses in the NEP historical distribution in California abused to the point of precluding that could potentially result in lying entirely south of Interstate 10. The recovery; a commenter cited the incidental take.

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(17) Comment: The survival and designation in accordance with our reduce possible effects from stochastic growth of the NEP hinges on the good policies and regulations. Furthermore, a events. Linking these habits and faith and stewardship of the action comprehensive review, assessment, and populations may be crucial for long- agencies on whose land the NEP resides. report of the reestablishment program term survival of the species. If agency commitments to conservation by the Recovery Team will occur at least Our Response: We acknowledge that are not fulfilled, the Service should every 5 years. If at any point the allowing movement of Sonoran reconsider the NEP designation and take program is not meeting its stated pronghorn among populations increases whatever action is necessary to ensure objective, or is falling short of meeting the viability of those populations and the recovery of Sonoran pronghorn. the success criteria, all aspects of the their likelihood of persistence over the Conferring under Section 7 is an program can be reevaluated and long term. However, accomplishing that opportunity to ensure the actions of modified as needed to better meet the is problematic logistically and Federal agencies are consistent with recovery needs of the species. economically. The barriers that separate recovery of the Sonoran pronghorn. (18) Comment: Because the legal the NEP and wild populations are not Our Response: The Service is status of Sonoran pronghorn will be temporary structures. Interstate 8, dedicated to achieving the recovery of defined geographically (i.e., if they are canals, and the agricultural and rural the Sonoran pronghorn, which includes in the NEP area they are part of the NEP development that separate the current using all of our authorities to achieve population; if they are outside the NEP, range from pronghorn habitat in Area A success in regard to reestablished they are fully protected under the Act), are probably insurmountable barriers. Sonoran pronghorn populations in wild, endangered Sonoran pronghorn Overpasses or underpasses may be Areas A and D. As we have discussed could lose the majority of their possible to allow movement of Sonoran (see Regulatory Background), we will protections simply by natural pronghorn across Highway 85, which work with Federal action agencies movements. If it turns out that crossings separates the wild population from the through the section 7(a)(4) conference by wild pronghorn into BMGR–E are NEP in Area D; however, whether such provisions of the Act in areas outside of occurring and/or increasing, the Service a connection is feasible or likely to be National Park and Wildlife Refuge should assess and potentially reconsider sufficiently successful to affect our lands, and via the section 7(a)(2) the new populations’ designation and expectation of very infrequent consultation process where the NEP requirements under section 10(j) of the intermingling is unknown at present. might be affected within Parks and Act. (20) Comment: The assertion that U.S. Refuges. Luke Air Force Base, which Our Response: As we have earlier Customs and Border Protection manages BMGR–E lands in Area D, has discussed (see discussion under operations pose a threat to the survival been a consistent and strong partner in ‘‘Reestablishment Areas’’), we do not and recovery of Sonoran pronghorn is recovery of the Sonoran pronghorn and expect Sonoran pronghorn to cross over inconsistent with the best scientific and has contributed millions of dollars to the substantial barriers that separate the commercial data. recovery. We fully anticipate that they NEP area from the wild herd. Only once Our Response: The proposed rule will continue to be a strong partner. or twice has a Sonoran pronghorn been identified high levels of undocumented Through the development of the NEP known to cross Highway 85 and its immigration and drug trafficking across proposal, we were and continue to be in associated right-of-way fences into the international border and associated close contact with Yuma Proving BMGR–E. Released, pen-raised Sonoran law enforcement as a threat to the Grounds, which manages lands in Area pronghorn have a greater tendency to Sonoran pronghorn. The proposed rule A and has agreed to cooperate with us move than do wild Sonoran pronghorn. went on to say that the ‘‘U.S. population on this project. The BLM has pledged its We have also seen Sonoran pronghorn declined in 2002 by 83 percent to 21 support, and furthermore has a policy of make unusual movements in response animals (Bright and Hervert 2005, p. conferring with the Service on activities to severe drought. However, the fact 46). The Mexican populations declined that may affect proposed species, remains that such crossings are rare. As at the same time, but not to the same including NEPs. Thus, their standard for the wild population continues to degree. The population southeast of conferring exceeds that in the recover and when a population becomes Highway 8 declined by 18 percent, regulations, which only require established in Area D, the likelihood of while the El Pinacate population conferring if a Federal action is likely to pronghorn crossing Highway 85, both declined by 26 percent. The differences jeopardize the continued existence of a into or out of the NEP, will probably between the rates of decline north and proposed species or is likely to result in increase. But because highways and south of the border may be due to high adverse modification or destruction of their associated right-of-way fences are levels of human disturbance on the proposed critical habitat (50 CFR nearly impermeable barriers for Sonoran United States side primarily as a result 402.10(a)). pronghorn (Brown and Ockenfels 2007, of heightened levels of illegal Because of this support and pg. 29), we do not anticipate more than immigration, smuggling, and law cooperation, and as we anticipate occasional lone animals moving across enforcement response (Service 2008, p. Sonoran pronghorn recovery will be the highway, and the occurrence of that 55)’’ (75 FR 5735). Whether these compatible with current and future will remain a rare event. However, if at activities pose a threat to the survival activities within the NEP (see any time in the future the wild and recovery of the Sonoran pronghorn discussion under ‘‘Management’’), we population and the NEP begin to has not been thoroughly addressed. believe there will be no need to intermingle because of unexpected and Recent analysis has shown there are reconsider the NEP designation. common movement of Sonoran about 8,000 miles of unauthorized However, if at any time in the future the pronghorn across barriers between those routes on the approximately 1,000-sq.- status of the wild populations declines populations, the Service will reevaluate mi refuge, mostly in designated dramatically or other circumstances the NEP designation in accordance with wilderness. These are most likely suggest that the loss of reestablished our policies and regulations. attributable to both illegal cross-border populations would be likely to (19) Comment: The wild and NEP traffic and associated law enforcement appreciably reduce the likelihood of populations should, at some point in the response by Border Patrol (McCasland survival of the species in the wild, the future, be allowed to intermingle in 2010, pers. comm.). Furthermore, there Service will reevaluate the NEP order to maximize genetic diversity and is strong anecdotal evidence suggesting

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Sonoran pronghorn are avoiding areas of current range of the Sonoran pronghorn may result in incidental take of the high cross-border traffic and law may make release of captively species will not require incidental take enforcement response, including the propagated Sonoran pronghorn into the permits from the Service. In National Granite forage enhancement plot and wild herd undesirable in some years. Parks and Wildlife Refuges, for the the pass near Bates Well (Service 2009, Area D will provide another option for purposes of section 7 only, the Sonoran pp. 47–48). Border Patrol presence use of these excess animals. Also, the pronghorn will be listed as a threatened deters illegal cross-border traffic, but ultimate goal of the Act is to delist the species, requiring consultations for that deterrence has a substantial impact species, so it no longer needs the actions that may affect the species. on its own (Milstead and Barnes 2002, protections of the Act. Additional However, we expect few if any changes pp. 87–88; Neeley 2006, p. 9; Duncan et populations beyond what is being would be needed in those lands to al. 2010, pp. 123–130). However, as proposed in this action may be needed comply with the Act (see Border Patrol achieves operational to achieve full recovery. ‘‘Management’’). Thus, based on our EA control of the border region, we (22) Comment: The full effects of the we find that in no case do the effects of anticipate that human disturbance will rulemaking are not evaluated, because the action within Areas A or D or within be reduced over time. the analysis in the EA is limited to the NEP generally, rise to the level of (21) Comment: Kofa NWR is much Areas A and D, but the NEP area is significantly affecting the human more likely to support a successful much larger, encompassing 10 million environment. A ‘‘major Federal action’’ reintroduction of Sonoran pronghorn acres. For example, U.S. Customs and includes actions with effects that may than the area east of Highway 85 (Area Border Protection will be required to be major and which are potentially D), which is a high-traffic area for consult on its activities at OPCNM east subject to Federal control and human and narcotics smuggling. of Highway 85. Because of the scope responsibility (40 CFR 1508.18). Due in Attempting a reestablishment in Area D and cost of the effort, along with part to the regulatory relief provided by is inconsistent with the recovery plan, potential effects of a wide range of the NEP designation and special rule, which specifies that a second, but not a activities, the proposed action appears the effects of the action are not major as third, U.S. population is needed for to be a major Federal action documented in our FONSI. downlisting. significantly affecting the human The likelihood of Sonoran pronghorn Our Response: Although not ranked environment. The commenter moving into that portion of Area D east as high as Area A (which includes Kofa encourages the Service to limit the NEP of Highway 85 on OPCNM is low. The NWR), Area D (including the area east to areas west of Highway 85. few Sonoran pronghorn that have of Highway 85) was ranked second of Our Response: NEPA implementing moved into that area have either died or the seven areas evaluated by the IDT as regulations at 40 CFR 1508.9 define an not stayed there, likely because of poor potential release sites. The IDT believes EA as: ‘‘a concise public document for habitat quality. In any case, it is Area D has good potential to support which a Federal agency is responsible probably more likely that wild Sonoran Sonoran pronghorn, and the subspecies that serves to: (1) Briefly provide pronghorn would colonize that area existed here historically, possibly into sufficient evidence and analysis for from west of Highway 85 than from the the late 1980s (Service 1998, p. 9). determining whether to prepare an release site in Area D (see our response Degree of disturbance, including that environmental impact statement or a to the third peer review comment). In caused by illegal cross-border traffic and FONSI, (2) aid an agency’s compliance that scenario, U.S. Customs and Border Border Patrol, were taken into account with the Act when no environmental Protection would need to consult on in the rankings of each area. Further, as impact statement is necessary, and (3) their activities in that area affecting discussed in the above comment, we facilitate preparation of an Sonoran pronghorn with or without the anticipate that both illegal immigration environmental impact statement when NEP designation. and Border Patrol operations will lessen one is necessary. The EA shall include (23) Comment: During pen over time. The recovery plan identifies brief discussions of the need for the construction at Kofa NWR, any desert establishment of a second U.S. herd as proposal, of alternatives as required by tortoises or rosy boas found should be a criterion for downlisting (Service section 102(2)(E) of NEPA, of the immediately translocated to a release 2002, p. 36); however, it does not environmental impacts of the proposed site agreed upon by the AGFD, Service, suggest population reestablishments action and alternatives, and a listing of and BMGR. should be limited to only one. Recovery agencies and persons consulted’’ (40 Our Response: In the event that State- action 2 in the 1998 recovery plan is to CFR 1508.9(b)). sensitive species, such as rosy boas ‘‘establish and monitor new separate Sonoran pronghorn pens, holding (Lichanura trivirgata) or desert tortoises herd(s)’’ (Service 1998, p. 40). facilities, water sources, and releases (Gopherus agassizii) are found during Replication of effort in regard to will all occur in Areas A and D, and are any phase of construction at either the population reestablishment is prudent consistent with the regulations cited captive breeding pen at Kofa NWR or in the event that populations in Area A above. Those are the areas on which the the holding pen at BMGR–E, they will or Area D are not successful. The effects of the alternatives were focused be relocated no more than 0.5 mi (0.8 holding pen at Area D will also serve as in the EA. Over time, and as km) away in the direction of the most an outlet for excess pronghorn produced populations grow, Sonoran pronghorn suitable and typical habitat for the at the captive rearing pen at Cabeza could move outside of Areas A and D species (rock outcrops or rocky Prieta NWR. Production of animals for and potentially to the boundaries of the hillsides, and in the case of the tortoise, release is expected to be more than 20 NEP. In the event that Sonoran dissected washes with caliche caves). If Sonoran pronghorn per year from that pronghorn move to the boundaries of rosy boas are found during the day, they pen (23 were released from the pen in the NEP but not outside of it, the effects shall be held temporarily in a climate- December 2009). Once animals are of Sonoran pronghorn presence in these controlled environment (e.g., a cooler) established at the pen at Kofa NWR, and areas would be minimal because of the and released in the evening to prevent as the wild herds are bolstered by NEP designation and the special rule overheating. releases, fewer animals will be needed, that together broadly allow Federal (24) Comment: A commenter allowing releases to Area D. In addition, actions to go forward without section 7 expressed concern that reestablishment conditions such as drought within the consultations, and private actions that at Kofa NWR would interfere with the

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hunting opportunities for bighorn sheep (27) Comment: No sufficient or activities occur on the Kofa Range (Ovis canadensis) or other species on verifiable evidence exists to show that portion of Yuma Proving Grounds, the refuge. In particular, the commenter Kofa NWR or any areas north of the Gila which lies directly south of Kofa NWR questions whether areas of the refuge River are within the historical range of and is the portion of Yuma Proving would be closed to public use during the Sonoran pronghorn. Hence, Grounds most likely to be colonized by the Sonoran pronghorn fawning season establishing a population of pronghorn Sonoran pronghorn. We acknowledge or whether areas currently open to at Kofa NWR is inappropriate. that military activities at Yuma Proving bighorn sheep hunting would be closed Our Response: The commenter Grounds may result in some mortality on Kofa NWR to protect Sonoran provides much supporting information and injury of Sonoran pronghorn (see pronghorn. that brings into question whether discussion in ‘‘Status of Proposed Our Response: An area extending 0.25 Sonoran pronghorn ever occupied King Population’’). However, similar to mi (0.40 km) out from the boundaries of Valley or other portions of Kofa NWR. BMGR–E, the vast majority of the Kofa the captive breeding pen at Kofa NWR We acknowledge that delineating the Range portion of Yuma Proving Grounds will be closed to the public. The pen historical range of the Sonoran is relatively undisturbed. The likelihood will be in King Valley, in an area not pronghorn is problematic because of a of a Sonoran pronghorn being hit by an frequented by bighorn sheep, so it will lack of specimens in key areas; the artillery shell or shrapnel, colliding have no impact on sheep hunting. No anecdotal nature of sightings, of which with a vehicle, or encountering lethal or other closures are needed or will be some of the most relevant are very old; injurious hazards is very small. At implemented at Kofa NWR to support and taxonomic uncertainty—the BMGR–E, no Sonoran pronghorn have the Sonoran pronghorn reestablishment. Mexican pronghorn occurs elsewhere in ever been documented to have been (25) Comment: A commenter inquired southern Arizona. The uncertainty in killed or injured by military activities. how a 10(j) designation could be defining historical range is reflected in Luke Air Force Base implements established on the BMGR when there the prior and current Sonoran protocols to ensure that Sonoran are still Sonoran pronghorn in that area. pronghorn recovery plans. The 1982 pronghorn are not harmed on the live Our Response: Areas west of Highway plan, adopting the range as described by fire Tactical Ranges, but even before 85 and south of Interstate 8 on the Hall and Kelson (1959, p. 1023), did not those protocols were put in place in show the range of the Sonoran BMGR are not within the NEP. The wild 1997, no Sonoran pronghorn were ever pronghorn north of Ajo, which is well herd, with the full protections of the known to have been killed or injured on south of the Gila River (Service 1982, p. Act, occupies this area. Only those areas the BMGR as a result of military 2). The 1998 and 2002 versions of the of BMGR–E east of Highway 85 are in activities. There is no evidence to recovery plan adopted a more expansive the NEP. Those areas are not currently suggest, nor do we anticipate, that view of historical range first exposed by occupied by Sonoran pronghorn. military activities at Yuma Proving Phelps and Webb (1981, p. 21); this later Highway 85 and its right-of-way fence Grounds will compromise the recovery view included Kofa NWR. Phelps and efforts for the Sonoran pronghorn in provide a physical barrier to Sonoran Webb (1981, p. 22) provide evidence of Area A. pronghorn movement between the wild Sonoran pronghorn on the Harquahala (29) Comment: One commenter population and the NEP (see discussion Plain in the 1850s, northeast of Kofa questioned the timeline in the EA, ‘‘ ’’ in Reestablishment Areas ). NWR, and along the Gila River in 1852, which had the construction of the (26) Comment: One commenter asked south of the Kofa NWR. As shown in the captive pen at Kofa NWR beginning in if the NEP area is clearly delineated 2002 supplement and amendment to the spring of 2010. from the area in which the wild, fully recovery plan (Service 2002, p. 17), Our Response: Implementation of the protected Sonoran pronghorn occur, and based on the best scientific and action will not begin until after if there is a chance of confusion in areas commercial information available, the publication of this rule and the signing that include both NEP and fully Sonoran pronghorn recovery team and of the FONSI. protected Sonoran pronghorn (e.g., the Service believe Kofa NWR is within (30) Comment: Creating irrigated BMGR). Furthermore, the commenter the historical range of the subspecies. forage enhancement plots in King Valley asked if a potential exists for incidental (28) Comment: Yuma Proving at Kofa NWR will exacerbate nonnative, take of Sonoran pronghorn occurring in Grounds is not going to ignore their invasive plant problems. In particular, the current range due to its close mission and cease firing if Sonoran the nonnative Sahara mustard (Brassica proximity to the NEP. pronghorn are in their artillery tournefourtii) and Mediterranean grass Our Response: The boundaries of the footprint. Yuma Proving Grounds could (Schismus sp.) are likely to increase. NEP are clearly delineated by major bomb herds of expensively reared Our Response: We acknowledge that highways, the Colorado River, and an Sonoran pronghorn, and military irrigating the desert will cause increased international border. Where the NEP operations may alter behavior and growth of plants, including nonnative adjoins the area occupied by the wild physiology of the species. No protocols species such as Sahara mustard and population, the boundary between the are in place at Yuma Proving Grounds Mediterranean grass. We propose two includes Interstate 8 (boundary to minimize death or injury of Sonoran irrigated areas to enhance forage within with Area A) and Highway 85 pronghorn. This is a moral issue that the captive pen at Kofa NWR. No forage (boundary with Area D). Because of must not be overlooked, as well as an enhancement plots are proposed outside those clear boundaries, the likelihood of additional financial loss of valuable the captive pen. Although we have not confusing wild and NEP Sonoran animals. surveyed the pen site for Sahara pronghorn is low, because the status of Our Response: Specific capabilities at mustard or Mediterranean grass, both each is determined geographically. Yuma Proving Grounds include testing almost certainly occur there. Designation of the NEP adjacent to the of artillery; mortars; mines; ground and Mediterranean grass is likely current range alters neither the aircraft weapons; target acquisition and ubiquitous. Sahara mustard achieves its likelihood of incidental take, nor the fire control systems; wheeled and greatest densities in fine, sandy soils, activities that could result in incidental tracked vehicles; and air delivery but still occurs on bajadas and in take of Sonoran pronghorn in the wild material, equipment, and techniques. gravelly soils such as occurs at the pen herd. Primarily artillery and tank testing site. Both species thrive in disturbed

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sites; hence, hoof action from Sonoran Finding Regulatory Flexibility Act pronghorn may further enhance We followed the procedures required Under the Regulatory Flexibility Act populations of these nonnatives. That (as amended by the Small Business said, these species have not increased by the Act, NEPA, and the Administrative Procedure Act during Regulatory Enforcement Fairness Act noticeably in forage enhancement plots (SBREFA) of 1996; 5 U.S.C. 601 et seq.), at Cabeza Prieta NWR, including inside this Federal rulemaking process. Therefore, we solicited public and peer- whenever a Federal agency is required the captive breeding pen. The plant to publish a notice of rulemaking for communities and soils are similar review comments on the proposed NEP designation. As required by law, we any proposed or final rule, it must between the forage plots at Cabeza prepare, and make available for public Prieta and at the pen site in Kofa NWR, have considered all comments received on the proposed rule and draft EA comment, a regulatory flexibility so we have no reason to believe these analysis that describes the effect of the species will respond any differently at before making this final determination. Based on the above information, and rule on small entities (i.e., small Kofa NWR. Furthermore, the fencing businesses, small organizations, and and visual screening on the perimeter of using the best scientific and commercial data available (in accordance with 50 small government jurisdictions). the pen at Kofa NWR will likely reduce However, no regulatory flexibility spread of seed from Sahara mustard and CFR 17.81), we find that creating an NEP of Sonoran pronghorn and analysis is required if the head of an Mediterranean grass to areas outside the agency certifies that the rule will not pen. Consistent with our monitoring releasing them into the NEP area in Kofa NWR of Area A and BMGR–E of Area have a significant economic impact on and adaptive management plan, if our D will further the conservation of the a substantial number of small entities. actions create a nonnative invasive species. SBREFA amended the Regulatory plant problem, we will evaluate that Flexibility Act to require Federal problem and take appropriate action to Administrative Change to 50 CFR 17.84 agencies to provide a statement of the correct it. factual basis for certifying that a rule We are making a nonsubstantive (31) Comment: In comments provided will not have a significant economic change to correct a paragraph on the Environmental Assessment, the impact on a substantial number of small designation error in 50 CFR 18.74(u), U.S. Customs and Border Protection entities. We are certifying that this rule the nonessential experimental strongly encouraged limiting will not have a significant economic population rule for Rio Grande silvery reestablishment to Area A (Kofa) due to effect on a substantial number of small minnow. In that rule, there are four concerns that the experimental entities. The following discussion subparagraphs, numbered (1) through explains our rationale. population might impede border (4). Paragraph (u)(4) is further broken security operations. The area affected by this rule includes down into three subparagraphs. an area north of Interstate 8, east of the Our Response: The Service and the According to the correct format for the Colorado River, and west of Interstates Recovery Team believe that it is Code of Federal Regulations, these 10 and 19; and an area south of important to efforts to conserve the subparagraphs should be designated as Interstate 8, east of Highway 85, and Sonoran pronghorn to have two paragraphs (i) through (iii). However, west of Interstates 10 and 19. Because of population centers within the they are erroneously designated as the substantial regulatory relief experimental area. Based on our paragraphs (a) through (c). We are provided by NEP designations, we do evaluation of possible reintroduction making this correction as part of this not expect this rule to have any sites, Kofa (Area A) and BMGR–East final rule. significant effect on recreational, (Area D) have the best combination of Required Determinations agricultural, ranching, military, or other size, forage availability, water activities within the NEP area. In availability, fragmentation, disturbance, Regulatory Planning and Review (E.O. addition, when NEPs are located outside logistics, and other factors and that is 12866) a National Wildlife Refuge or unit of the why we have chosen those two areas. National Park System, we treat the Release of animals into BMGR–East The Office of Management and Budget population as a species proposed for would only occur after we have (OMB) has determined that this rule is listing for the purposes of Section 7 and achieved strongly positive results from not significant and has not reviewed only two provisions apply: Section our efforts at Kofa and we have surplus this rule under Executive Order 12866 7(a)(1) and section 7(a)(4). In these animals from Cabeza Prieta and Kofa (E.O. 12866). OMB bases its instances, NEPs provide additional that could be placed in BMGR–East. We determination upon the following four flexibility because Federal agencies are do not anticipate reaching that point for criteria: not required to consult with us under at least 5 years and probably longer. The (a) Whether the rule will have an section 7(a)(2). Section 7(a)(1) requires Service is committed to coordinating annual effect of $100 million or more on Federal agencies to use their authorities closely with U.S. Customs and Border the economy or adversely affect an to carry out programs to further the Protection and other partners before economic sector, productivity, jobs, the conservation of listed species. Section implementing release of Sonoran environment, or other units of the 7(a)(4) requires Federal agencies to pronghorns into BMGR–East so as to government. confer (rather than consult) with the limit any potentially adverse effects to (b) Whether the rule will create Service on actions that are likely to operations and activities of U.S. inconsistencies with other Federal jeopardize the continued existence of a Customs and Border Protection and our agencies’ actions. proposed species. other partners. We have added language The BLM has a policy (BLM 6840 to the text of the regulation clarifying (c) Whether the rule will materially Manual) of conferring on activities that that incidental take caused by border affect entitlements, grants, user fees, may adversely affect proposed species. security and enforcement carried out by loan programs, or the rights and The results of a conference are advisory Federal law enforcement officials (e.g., obligations of their recipients. in nature and do not restrict agencies U.S. Customs and Border Protection) (d) Whether the rule raises novel legal from carrying out, funding, or would not be prohibited. or policy issues. authorizing activities. The section

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7(a)(2) requirements will apply if greater in any year (i.e., it is not a power and responsibilities among the Sonoran pronghorn may be affected by ‘‘significant regulatory action’’ under the various levels of government. In keeping Federal activities within National Unfunded Mandates Reform Act). This with Department of the Interior policy, Wildlife Refuges and National Park NEP designation for the Sonoran we requested information from and Service units in the NEP; however, we pronghorn will not impose any coordinated development of this rule do not anticipate any significant additional management or protection with the affected resource agencies in changes to management because these requirements on the states or other Arizona. The AGFD has been a key areas are already managed in a way that entities. participant in the recovery program for will promote recovery of the Sonoran the Sonoran pronghorn, including Takings (E.O. 12630) pronghorn. The principal activities on serving on the IDP that helped develop private property in the NEP are In accordance with Executive Order the reestablishment proposal. Achieving agriculture, ranching, rural living, and 12630, the rule does not have significant the recovery goals for this species will recreation. We believe the presence of takings implications. When contribute to its eventual delisting and the Sonoran pronghorn will not affect reestablished populations of federally its return to State management. No the use of private or tribal lands for listed species are designated as NEPs, intrusion on State policy or these purposes because there will be no the Act’s regulatory requirements administration is expected, roles or new or additional economic or regarding the reestablished listed responsibilities of Federal or State regulatory restrictions imposed upon species within the NEP are significantly governments will not change, and fiscal States, non-Federal entities, or members reduced. Section 10(j) of the Act and the capacity will not be substantially or of the public due to the presence of the accompanying special rule can provide directly affected. The special rule Sonoran pronghorn. regulatory relief with regard to the operates to maintain the existing This rule authorizes incidental take of taking of reestablished species within an relationship between the State and the Sonoran pronghorn within the NEP area NEP area. For example, with the Federal Government and is being outside of National Wildlife Refuges and exception of actions on National undertaken in coordination with the National Park Service units. The Wildlife Refuge or National Park Service State of Arizona. Therefore, this rule regulations implementing the Act define lands within the NEP, this rule allows does not have significant Federalism ‘‘incidental take’’ as take that is for the taking of reestablished Sonoran effects or implications to warrant the incidental to, and not the purpose of, pronghorn when such take is incidental preparation of a Federalism Assessment carrying out of an otherwise lawful to an otherwise legal activity, such as under the provisions of Executive Order activity such as military training, military training and testing, 13132. livestock grazing, recreation, and other agriculture, rural and urban activities that are in accordance with development, livestock grazing, Civil Justice Reform (E.O. 12988) Federal, tribal, state, and local laws and camping, hiking, hunting, recreational In accordance with Executive Order regulations. Intentional take for vehicle use, sightseeing, nature or 12988 (February 7, 1996; 61 FR 4729), purposes other than aiding sick, injured, scientific study, rockhounding, and the Office of the Solicitor has or orphaned Sonoran pronghorn; geocaching; or other activities that are in determined that this rule will not collection of biological data; or other accordance with applicable tribal, unduly burden the judicial system and conservation purposes as described in Federal, State, and local laws and will meet the requirements of sections the special rule at the end of this regulations. Because of the substantial (3)(a) and (3)(b)(2) of the Order. document are not authorized unless for regulatory relief provided by NEP Government-to-Government research or educational purposes, which designations, we do not believe the Relationship With Tribes would require a recovery permit under reestablishment of this species will section 10(a)(1)(a) of the Act. conflict with existing or proposed In accordance with Secretarial Order human activities or hinder public use of 3206 (American Indian Tribal Rights, Unfunded Mandates Reform Act lands within the NEP. Federal-Tribal Trust Responsibilities, (2 U.S.C. 1501 et seq.) A takings implication assessment is and the Endangered Species Act) (June In accordance with the Unfunded not required because this rule (1) will 5, 1997); the President’s memorandum Mandates Reform Act (2 U.S.C. 1501 et not effectively compel a property owner of April 29, 1994, Government-to- seq.): to suffer a physical invasion of property Government Relations with Native a. On the basis of information and (2) will not deny all economically American Tribal Governments (59 FR contained in the ‘‘Regulatory Flexibility beneficial or productive use of the land 22951); Executive Order 13175; and the Act’’ section above, this rule will not or aquatic resources. This rule Department of the Interior’s requirement ‘‘significantly or uniquely’’ affect small substantially advances a legitimate at 512 DM 2, we have notified the governments. We have determined and government interest (conservation and Native American Tribes within and certify pursuant to the Unfunded recovery of a listed species) and does adjacent to the NEP area about the Mandates Reform Act, 2 U.S.C. 1502 et not present a barrier to all reasonable proposed and final rule. They have been seq., that this rulemaking will not and expected beneficial use of private advised through written contact, impose a cost of $100 million or more property. including informational mailings from in any given year on local or State the Service, and were provided an governments or private entities. A Small Federalism (E.O. 13132) opportunity to comment on the draft EA Government Agency Plan is not In accordance with Executive Order and proposed rule. No comments were required. As explained above, small 13132, we have considered whether this received from Tribes on these governments will not be affected rule has significant Federalism effects documents. If future activities resulting because the NEP designation will not and have determined that a Federalism from this rule may affect Tribal place additional requirements on any assessment is not required. This rule resources, the Service will communicate city, county, or other local will not have substantial direct effects and consult on a Government-to- municipalities. on the States, on the relationship Government basis with any affected b. This rule will not produce a between the Federal Government and Native American Tribes in order to find Federal mandate of $100 million or the States, or on the distribution of a mutually agreeable solution.

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Paperwork Reduction Act under Docket No. FWS–R2–ES–2009– List of Subjects in 50 CFR Part 17 0077. Office of Management and Budget Endangered and threatened species, (OMB) regulations at 5 CFR part 1320, Energy Supply, Distribution or Use (E.O. Exports, Imports, Reporting and which implement provisions of the 13211) recordkeeping requirements, Paperwork Reduction Act (44 U.S.C. Transportation. On May 18, 2001, the President issued 3501 et seq.), require that Federal Final Regulation Promulgation agencies obtain approval from OMB Executive Order 13211 on regulations Accordingly, we amend part 17, before collecting information from the that significantly affect energy supply, subchapter B of chapter I, title 50 of the public. The Office of Management and distribution, and use. Executive Order Code of Federal Regulations, as set forth Budget has approved our collection of 13211 requires agencies to prepare below: information associated with reporting Statements of Energy Effects when undertaking certain actions. This rule is the taking of experimental populations PART 17—[AMENDED] and assigned control number 1018– not expected to significantly affect 0095. We may not collect or sponsor, energy supplies, distribution, and use. ■ 1. The authority citation for part 17 and you are not required to respond to, Because this action is not a significant continues to read as follows: a collection of information unless it energy action, no Statement of Energy Effects is required. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. displays a currently valid OMB control 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– number. References Cited 625, 100 Stat. 3500; unless otherwise noted. National Environmental Policy Act A complete list of all references cited ■ 2. Amend § 17.11(h) by revising the in this rule is available upon request entry for ‘‘Pronghorn, Sonoran’’ under We have prepared an EA and FONSI, ‘‘MAMMALS’’ in the List of Endangered as defined under the authority of NEPA. from the Arizona Ecological Services Field Office (see ADDRESSES section). and Threatened Wildlife to read as It is available from the Arizona follows: Ecological Services Field Office, 2321 Authors West Palm Royal Road, Suite 103, § 17.11 Endangered and threatened Phoenix, AZ 85021, or from our Web The primary authors of this rule are wildlife. site at http://www.fws.gov/southwest/es/ staff of the Arizona Ecological Services * * * * * arizona/ or on www.regulations.gov Field Office (see ADDRESSES section). (h) * * *

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

MAMMALS

******* Pronghorn, Sonoran Antilocapra ameri- U.S.A. (AZ), Mexico Entire, except where E 1, 3 NA NA cana sonoriensis. listed as an ex- perimental popu- lation. Pronghorn, Sonoran Antilocapra ameri- U.S.A. (AZ), Mexico In Arizona, an area XN 782 NA 17.84(v) cana sonoriensis. north of Interstate 8 and south of Interstate 10, bounded by the Colorado River on the west and Interstate 10 on the east; and an area south of Interstate 8, bounded by High- way 85 on the west, Interstates 10 and 19 on the east, and the U.S.-Mexico bor- der on the south.

*******

■ 3. Amend § 17.84 by redesigning (v) Sonoran pronghorn (Antilocapra (2) No person may take this species, paragraphs (u)(4)(a) through (u)(4)(c) as americana sonoriensis). except as provided in paragraphs (v)(3) paragraphs (u)(4)(i) through (iii) and by (1) The Sonoran pronghorn through (v)(6) of this section. adding a new paragraph (v) to read as (Antilocapra americana sonoriensis) (3) Any person with a valid permit issued by the U.S. Fish and Wildlife follows: population identified in paragraph Service under § 17.32 may take (v)(12) of this section is a nonessential § 17.84 Special rules—vertebrates. pronghorn within the NEP area for * * * * * experimental population (NEP). scientific purposes, the enhancement of

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propagation or survival of the species, (ii) Dispose of a dead Sonoran (ii) The Service has designated the and other conservation purposes pronghorn specimen, or salvage a dead NEP area to accommodate the potential consistent with the Endangered Species specimen that may be useful for future movements of wild Sonoran Act. scientific study; pronghorn. All released Sonoran (4) A Sonoran pronghorn may be (iii) Move a Sonoran pronghorn for pronghorn and their progeny are taken within the boundaries of Yuma genetic purposes or to improve the expected to remain in the NEP area due Proving Grounds; Barry M. Goldwater health of the population; or to the geographical extent of the Range; lands of the Arizona State Land (iv) Capture and release a Sonoran designation and substantial barriers to Department; Bureau of Land pronghorn for relocation, to collect movement that form the boundaries of Management lands; privately owned biological data, or to attach, service, or the NEP. lands; and lands of the Tohono detach radio-telemetry equipment. (10) The NEP will be monitored O’odham Nation, Colorado River Indian (6) Any taking pursuant to paragraphs closely for the duration of the program. Tribes, Gila River Indian Reservation, (v)(3) through (v)(5) of this section must Any pronghorn that is determined to be Ak-Chin Indian Reservation, Pascua be reported as soon as possible by sick, injured, or otherwise in need of Yaqui Indian Reservation, and San calling the U.S. Fish and Wildlife special care will be recaptured to the Xavier Reservation within the NEP area, Service, Arizona Ecological Services extent possible by Service and/or State provided that such take is incidental to, Office, 201 N Bonita Avenue, Suite 141, or Tribal wildlife personnel or their and not the purpose of, carrying out any Tucson, AZ 85745 (520/670–6150), or designated agent and given appropriate otherwise lawful activity; and provided the Cabeza Prieta National Wildlife care. Such pronghorn will be released that such taking is reported as soon as Refuge, 1611 North Second Avenue, back to the wild as soon as possible, possible in accordance with paragraph Ajo, AZ 85321 (520/387–6483). Upon unless physical or behavioral problems (v)(6) of this section. Otherwise lawful contact, a determination will be made as make it necessary to return them to a activities are any activities in to the disposition of any live or dead captive-breeding facility. compliance with applicable land specimens. (11) The Service plans to evaluate the management regulations, hunting (7) No person may possess, sell, status of the NEP every 5 years to regulations, tribal law, and all other deliver, carry, transport, ship, import, or determine future management status applicable law and regulations, and export by any means whatsoever, any and needs, with the first evaluation include, but are not limited to, military Sonoran pronghorn or Sonoran occurring not more than 5 years after the training and testing, border security and pronghorn parts taken in violation of first release of pronghorn into the NEP enforcement carried out by Federal law these regulations. area. All reviews will take into account enforcement officials (e.g., U.S. Customs (8) It is unlawful for any person to the reproductive success and movement and Border Protection), agriculture, attempt to commit, solicit another to patterns of individuals released, food rural and urban development, livestock commit, or cause to be committed, any habits, and overall health of the grazing, camping, hiking, hunting, offense defined in paragraphs (v)(2) and population. This evaluation will include recreational vehicle use, sightseeing, (7) of this section. a progress report. nature or scientific study, (9) The boundaries of the designated (12) The areas covered by this rockhounding, and geocaching, where NEP area are based on the maximum proposed nonessential experimental such activities are permitted. estimated range of pronghorn that are population designation are in Arizona. released in and become established They include the area north of Interstate (5) Any employee or agent of the U.S. within the NEP area. These boundaries 8 and south of Interstate 10, bounded by Fish and Wildlife Service, the Arizona are physical barriers to movements, the Colorado River on the west and Department of Game and Fish, and the including major freeways and highways, Interstate 10 on the east, and an area tribes listed in paragraph (v)(4) of this and the Colorado River. All release sites south of Interstate 8, bounded by section, who is designated for such will be within the NEP area. Highway 85 on the west, Interstates 10 purpose may, when acting in the course (i) All Sonoran pronghorn found in and 19 on the east, and the U.S.-Mexico of official duties, take a Sonoran the wild within the boundaries of the border on the south. pronghorn if such action is necessary to: NEP area will be considered members of (13) Note: Map of the NEP area for the (i) Aid a sick, injured, or orphaned the NEP. Any Sonoran pronghorn Sonoran pronghorn in southwestern Sonoran pronghorn, including rescuing occurring outside of the NEP area are Arizona follows: such animals from canals; considered endangered under the Act. BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C Dated April 19, 2011. Will Shafroth, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011–10467 Filed 5–4–11; 8:45 am] BILLING CODE 4310–55–P

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