[Federal Register: February 4, 2010 (Volume 75, Number 23)]
[Proposed Rules]               
[Page 5732-5745]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2009-0077; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW63

Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Sonoran Pronghorn in 
Southwestern Arizona

AGENCY: Fish and Wildlife Service, Interior.

[[Page 5733]]

ACTION: Proposed rule; public hearing, and availability of draft 
environmental assessment.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reestablish the Sonoran pronghorn, a federally listed endangered 
mammal, into its historical habitat in King Valley, Kofa National 
Wildlife Refuge (Kofa NWR), in Yuma County, and to the Barry M. 
Goldwater Range--East (BMGR-E), in Maricopa County, in southwestern 
Arizona. We propose to reestablish the Sonoran pronghorn under section 
10(j) of the Endangered Species Act of 1973, as amended (Act), and to 
classify that reestablished population as a nonessential experimental 
population (NEP). This proposed rule provides a plan for establishing 
the NEP and provides for allowable legal incidental taking of Sonoran 
pronghorn within the defined NEP area. We have prepared a draft 
environmental assessment (EA) on this proposed action.

DATES: We request that you send us comments on this proposal by the 
close of business on April 5, 2010, or at the public hearing. We will 
hold a public information session from 4:30 p.m. to 5:30 p.m., followed 
by a public hearing from 7 p.m. to 8:30 p.m., on February 23, 2010.

ADDRESSES: Written Comments: You may submit information by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R2-ES-2009-0077 and then follow the instructions 
for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2009-0077; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information we receive on http://
www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Requested 
section below for more details).
    Copies of Documents: The proposed rule and draft EA are on http://
www.regulations.gov and available from our Web site at http://
www.fws.gov/southwest/es/Library/. In addition, the supporting file for 
this proposed rule will be available for public inspection, by 
appointment, during normal business hours, at the Arizona Ecological 
Services Office, 201 North Bonita Avenue, Suite 141, Tucson, AZ 85745, 
telephone 520-670-6144. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Services (FIRS) 
at 800-877-8339.
    Public Hearing: We will hold our public hearing at Logan 
Auditorium, Gila Bend High School, 308 North Martin Avenue, Gila Bend, 
AZ 85337. For information requesting reasonable accommodations to 
attend the information session or hearing, see the Public Comments 

FOR FURTHER INFORMATION CONTACT: Curtis McCasland, Refuge Manager, 
Cabeza Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, 
AZ 85321; by telephone (520-387-6483) or by facsimile (520-387-5359).


Public Comments

    We want the final rule to be as effective as possible and the final 
EA on the proposed action to evaluate all potential issues associated 
with this action. Therefore, we invite tribal and governmental 
agencies, the scientific community, industry, and other interested 
parties to submit comments or recommendations concerning any aspect of 
this proposed rule and the draft EA. Comments should be as specific as 
    To issue a final rule to implement this proposed action and to 
determine whether to prepare a finding of no significant impact or an 
environmental impact statement, we will take into consideration all 
comments and any additional information we receive. Such communications 
may lead to a final rule that differs from this proposal. All comments, 
including commenters' names and addresses, if provided to us, will 
become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule and draft EA by one of the methods listed in the ADDRESSES 
section. We will not accept comments sent by e-mail or fax or to an 
address not listed in the ADDRESSES section. Finally, we will not 
consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in the DATES 
section. Comments must be submitted to  http://www.regulations.gov 
before midnight (Eastern Time) on the date specified in the DATES 
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If your written 
comment includes your street address, phone number, or e-mail address, 
you may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so. Comments and materials we receive, as well as 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the Cabeza Prieta NWR or 
the Arizona Ecological Services Office (see ADDRESSES and FOR FURTHER 

Public Hearing

    Persons needing reasonable accommodations in order to attend and 
participate in a public hearing should contact the Refuge Manager, 
Cabeza Prieta NWR, at the address or phone number listed in the FOR 
FURTHER INFORMATION CONTACT section as soon as possible. In order to 
allow sufficient time to process requests, please call no later than 
one week before the hearing. Information regarding this proposal is 
available in alternative formats upon request.



    We listed the Sonoran pronghorn subspecies (Antilocapra americana 
sonoriensis) as endangered throughout its range on March 11, 1967 (32 
FR 4001), under the Endangered Species Preservation Act of October 15, 
1966, without critical habitat. This subspecies was included as an 
endangered species when the Act was signed into law in 1973. The Act 
provides that species listed as endangered are afforded protection 
primarily through the prohibitions of section 9 and the requirements of 
section 7. Section 9 of the Act, among other things, prohibits the take 
of endangered wildlife. ``Take'' is defined by the Act as harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt 
to engage in any such conduct. Service regulations (50 CFR 17.31) 
generally extend the prohibitions of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitat. It mandates that all Federal agencies use their 
existing authorities to further the purposes of the Act by carrying out 
programs for the conservation of listed species. It also states that 
Federal agencies will, in consultation with the Service, ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not

[[Page 5734]]

affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    Under section 10(j) of the Act, the Secretary of the Department of 
the Interior can designate reestablished populations outside the 
species' current range as ``experimental.'' With the experimental 
population designation, the relevant population is treated as 
threatened for purposes of section 9 of the Act, regardless of the 
species' designation elsewhere in its range. Threatened designation 
allows us discretion in devising management programs and special 
regulations for such a population. Section 4(d) of the Act allows us to 
adopt whatever regulations are necessary and advisable to provide for 
the conservation of a threatened species. In these situations, the 
general regulations that extend most section 9 prohibitions to 
threatened species do not apply to that species, and the 10(j) rule 
contains the prohibitions and exemptions necessary and appropriate to 
conserve that species.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential. We have determined that this 
experimental population would not be essential to the continued 
existence of the species in the wild (see Status of Proposed Population 
section below). Therefore, the Service is proposing to designate a 
nonessential experimental population (NEP) for the species in this 
    For the purposes of section 7 of the Act, we treat an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or unit of the National Park Service, and section 7(a)(1) and 
the consultation requirements of section 7(a)(2) of the Act apply. 
Section 7(a)(1) requires all Federal agencies to use their authorities 
to carry out programs for the conservation of listed species. Section 
7(a)(2) requires that Federal agencies, in consultation with the 
Service, ensure that any action authorized, funded, or carried out is 
not likely to jeopardize the continued existence of a listed species or 
adversely modify its critical habitat. When NEPs are located outside a 
National Wildlife Refuge or National Park Service unit, then for the 
purposes of section 7, we treat the population as proposed for listing 
and only two provisions of section 7 apply--section 7(a)(1) and section 
7(a)(4). In these instances, NEPs provide additional flexibility 
because Federal agencies are not required to consult with us under 
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed to be listed. 
The results of a conference are in the form of conservation 
recommendations that are optional as the agencies carry out, fund, or 
authorize activities. Because the NEP is, by definition, not essential 
to the continued existence of the species, then the effects of proposed 
actions affecting the NEP will generally not rise to the level of 
jeopardizing the continued existence of the species. Section 
10(j)(2)(c)(ii) precludes the designation of critical habitat for non-
essential populations. As a result, a formal conference will likely 
never be required for Sonoran pronghorn established within the NEP 
area. Nonetheless, some agencies (e.g., Bureau of Land Management 
(BLM)) voluntarily confer with the Service on actions that may affect a 
proposed species. Activities that are not carried out, funded, or 
authorized by Federal agencies are not subject to provisions or 
requirements in section 7.
    Sonoran pronghorn used to establish an experimental population 
would come from a captive-rearing pen on Cabeza Prieta NWR, provided 
appropriate permits are issued in accordance with our regulations (50 
CFR 17.22) prior to their removal. The donor population is a captive-
bred population derived primarily from wild stock at Cabeza Prieta NWR 
and from a wild Sonoran pronghorn population in northwestern Sonora, 
Mexico. The purpose of the captive population is to provide stock for 
augmenting existing U.S. and Mexican populations of Sonoran pronghorn, 
as well as supplying founder animals for establishment of an additional 
U.S. herd(s), in accordance with recovery actions 2.1-2.4 of the 
Sonoran Pronghorn Recovery Plan (USFWS 2002). The proposed population 
establishment would involve two phases: (1) Construction and operation 
of a captive-breeding pen at Kofa NWR, with subsequent releases to 
establish a second herd; and (2) relocation of excess Sonoran pronghorn 
from the existing breeding pen at Cabeza Prieta NWR to the eastern 
portion of the BMGR-E, east of Highway 85 and south of Interstate 8, 
with the intent of establishing a separate herd in that area, as well.
    We have not designated critical habitat for the Sonoran pronghorn. 
Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall 
not be designated for any experimental population that is determined to 
be nonessential. Accordingly, we cannot designate critical habitat in 
areas where we establish an NEP.


    The Sonoran subspecies of pronghorn (Antilocapra americana 
sonoriensis) was first described by Goldman (1945) and is small in 
terms of cranial measurements compared to other subspecies of pronghorn 
(Nowak and Paradiso 1983, p. 857). Historically, the Sonoran pronghorn 
ranged in the United States from approximately the Santa Cruz River, 
Arizona, in the east, to the Gila Bend and Kofa Mountains, Arizona, to 
the north, and to Imperial Valley, California, to the west. In 
northwestern Sonora, Mexico, the subspecies is thought to have occurred 
historically as far south as Bahia Kino and east to Santa Ana and 
Nogales. In Baja California, Mexico, the subspecies occurred in the 
northeast from the U.S. Border south to the vicinity of Punta Estrella 
(Phelps and Webb 1981, pp. 20-21; Service 2002, Fig. 2). Currently, 
three populations of the Sonoran pronghorn are extant: (1) A U.S. 
population in southwestern Arizona, south of Interstate 8, west of 
Highway 85, and east of the Copper and Cabeza Prieta mountains (76 wild 
pronghorn), (2) a population in the El Pinacate Region of northwestern 
Sonora (50 pronghorn), and (3) a population south and east of Mexico 
Highway 8 and west and north of Caborca, Sonora (354 pronghorn). The 
three populations are geographically isolated due to barriers such as 
roads and fences (Service 2002, pp. 4-10, Fig. 1). The `current range' 
as used at 10(j)(2)(A)--``The Secretary may authorize the release (and 
the related transportation) of any population (including eggs, 
propagules, or individuals) of an endangered species or a threatened 
species outside the current range of such species * * *'' is defined by 
the boundaries described in part (1). Consistent with years of survey 
data, we are confident that no Sonoran pronghorn population occurs 
outside of the current range as defined in part (1) (Phelps 1981, pp. 
23-24; Service 2002, pp. 16 and 47).
    Threats to the Sonoran pronghorn include (1) highways, fences, 
railroads, developed areas, and irrigation canals that block access to 
essential forage or water resources; (2) a variety of human

[[Page 5735]]

activities that disturb pronghorn or degrade habitat, including 
livestock grazing in the United States and Mexico; military activities; 
recreation; poaching and hunting; clearing of desert scrub and planting 
of buffelgrass (Pennisetum ciliare) in Sonora; gold mining southeast of 
Sonoyta, Sonora; dewatering and development along the Gila River and 
R[iacute]o Sonoyta; and high levels of undocumented immigration and 
drug trafficking across the international border and associated law 
enforcement response; (3) wildfire fueled by nonnative perennial and 
ephemeral plants that have increased fine fuels and allowed fire to 
become a much more frequent event in the Sonoran Desert; (4) drought 
and associated limited food and water; and (5) small population size 
and random changes in demographics. Populations at low levels may 
experience random variations in sex ratios, age distributions, and 
birth and death rates among individuals, which can cause fluctuations 
in population size and possibly extinction (Service 2002, pp. 14-35; 
Roughgarden 1998, pp. 84-86). In very sparse populations, males may 
have trouble finding females, reducing productivity (Brewer 1988, p. 
138). In 2002, a severe drought was the primary cause in a major die 
off of Sonoran pronghorn. The U.S. population declined in 2002 by 83 
percent to 21 animals (Bright and Hervert 2005, p. 46). The Mexican 
populations declined at the same time, but not to the same degree. The 
population southeast of Highway 8 declined by 18 percent, while the El 
Pinacate population declined by 26 percent. The differences between the 
rates of decline north and south of the border may be due to high 
levels of human disturbance on the U.S. side due primarily to 
heightened levels of illegal immigration, smuggling, and law 
enforcement response (Service 2008, p. 55).

Recovery Efforts

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our endangered species program. Thus, 
in 1982 we published the Sonoran Pronghorn Recovery Plan (Plan) 
(Service 1982), which was produced by a Recovery Team comprised of 
representatives from the Arizona Game and Fish Department (AGFD), 
Cabeza Prieta NWR, BLM, Organ Pipe Cactus National Monument (OPCNM), 
Commission of Ecology and Sustainable Development for the State of 
Sonora (CEDES), and National Commission for Protected Natural Areas 
(CONANP). The Plan was subsequently revised in 1994, 1998, and 2002. 
Major recovery actions include: (1) Enhance present populations of 
Sonoran pronghorn by providing supplemental forage and/or water, (2) 
determine habitat needs and protect present range; (3) investigate and 
address potential barriers to expansion of presently used range, and 
investigate, evaluate, and prioritize present and potential future 
reintroduction sites within the historical range; (4) establish and 
monitor a new, separate herd(s) to guard against catastrophes 
decimating the core population; (5) continue monitoring populations and 
maintain a protocol for a repeatable and comparable survey technique; 
and (6) examine additional specimen evidence to assist in verification 
of taxonomic status (Service 1998, pp. iii-iv). The 2002 Supplement did 
not include delisting criteria; however, eight short-term recovery 
actions were identified as necessary to downlist the species to 
threatened. The supplement goes on to say that accomplishing these 
actions would provide the information necessary to determine delisting 
criteria. One of the short-term recovery actions was ``evaluating 
potential transplant locations, establishing methodology and protocols, 
developing interagency agreements (including with Mexico as required), 
acquiring funding, and initiating reestablishment projects'' (Service 
2002, p. 38).
    After the catastrophic die off of Sonoran pronghorn in 2002, the 
Service and its partners embarked on a number of aggressive recovery 
actions to ensure the species' continued existence and to begin to 
rebuild populations. The cornerstone of these actions was a semi-
captive breeding facility, constructed in Childs Valley, Cabeza Prieta 
NWR, in 2003, and stocked with wild Sonoran pronghorn in 2004. As of 
March 2009, 63 Sonoran pronghorn reside in the pen. Limited releases 
from the pen to the U.S. herd occurred in 2007 and 2008; however, the 
objective is to produce 10 to 25 fawns each year for release to the 
current U.S. population, to newly established population(s) in the 
United States, and to augment Mexican populations. This target number 
of fawn production will likely be met in 2009. A number of other 
projects are underway to increase availability of green forage and 
water during dry periods and seasons, offsetting to some extent the 
effects of drought and barriers that prevent Sonoran pronghorn from 
accessing greenbelts and water, such as the Gila River and R[iacute]o 
Sonoyta. Nine emergency water sources (six on Cabeza Prieta NWR, one on 
OPCNM, and two on BMGR-West) have been constructed in recent years 
throughout the range of the U.S. population. Four forage enhancement 
plots, each consisting of a well, pump, pipelines, and irrigation 
lines, have been developed to irrigate the desert and produce forage 
for pronghorn. Another plot is nearing completion, and two additional 
plots will be installed over the next 5 years. These crucial projects, 
intended to pull the U.S. population back from the brink of extinction, 
have been cooperative efforts among the Service, AGFD, Marine Corps Air 
Station--Yuma, Luke Air Force Base, BLM, and OPCNM, with volunteer 
efforts from the Arizona Desert Bighorn Sheep Society, Arizona Antelope 
Foundation, and the Yuma Rod and Gun Club.
    The U.S. wild population of Sonoran pronghorn has rebounded from 21 
in 2002 to 76 in 2008; this increase has been facilitated by the 
collaborative recovery efforts for this species. However, at 76 animals 
currently, the U.S. population is far from being secure. We have begun 
to work with our Mexican partners on recovery of the Sonoran pronghorn 
in Sonora; although the number of pronghorn in Sonora (404 animals) is 
significantly greater than in the United States, the safety net of 
waters and forage plots are not in place there, and a severe drought 
could decimate those populations.

Reestablishment Areas

    O'Brien et al. (2005) used landscape-level classification and 
regression tree and logistic regression models to assess potential 
Sonoran pronghorn habitat in southwestern Arizona, including current 
and historical range, as a means of beginning the process of 
identifying potential locations for establishing a second U.S. Sonoran 
pronghorn herd. Both models identified greater than 4,632 square miles 
(sq mi) (greater than 12,000 square kilometers (sq km)) of potential 
habitat (O'Brien et al. 2005, pp. 28-30). The largest blocks of 
potential habitat outside of the current range, which were identified 
by both models, were the Ranegras and Harquahala plains, King Valley at 
Kofa NWR north of Interstate 8; Sentinel Plain and other areas to the 
west between Interstate 8 and the Gila River; and areas not currently 
occupied south of Interstate 8 and immediately west of Highway 85. The 
models also identified a large habitat block east of Highway 85 and 
south of Interstate 8 as potential habitat. The authors did not 
evaluate potential habitats in the far eastern portions of the 
historical range of the pronghorn in Arizona (O'Brien et al. 2005, 
Figs. 3 and 4). O'Brien et al. (2005, p. 32) further explained that 

[[Page 5736]]

models were an initial step towards identifying and evaluating 
potential translocation sites. They recommended soliciting public 
input, reviewing predator presence and density, fencing, and the 
presence of preferred forage and water as additional steps in the 
evaluation process (O'Brien et al. 2005, p. 32).
    An Interdisciplinary Team (IDT), comprised of members of the 
Sonoran Pronghorn Recovery Team, as well as representatives from land 
management agencies located in southwestern Arizona, was convened in 
2008 to address these and other issues and considerations, and to 
recommend specific areas for establishing an additional U.S. herd or 
herds. Development of alternatives for population establishment 
entailed consideration of three key variables: (1) Geographical areas 
for establishing populations outside of the current range; (2) 
potential establishment techniques; and (3) legal status of established 
populations under the Act. Each of these three key variables had a 
range of options. The IDT evaluated the three key variables to arrive 
at the most effective combinations of geographical areas, establishment 
techniques, and legal status options. The IDT conducted a mapping 
exercise, to identify areas within the historical range of Sonoran 
pronghorn in the United States that were under Federal or State 
ownership and that contained suitable habitat for the species. The 
result of this exercise was identification of seven potential 
reestablishment areas, designated Areas A through G. The seven areas 
were then ranked by the IDT, using seven selection criteria, to 
determine the best areas for translocation. Area A (King Valley at Kofa 
NWR, and adjacent portions of primarily Yuma Proving Grounds and BLM 
lands) and Area D (primarily portions of the BMGR-E, BLM lands, and a 
portion of the Tohono O'odham Nation, all east of Highway 85) were 
ranked 1 and 2, respectively. Public scoping for the Sonoran pronghorn 
population establishment project included three open houses held on 
successive evenings at Yuma, Tucson, and Phoenix, AZ, and was conducted 
in November 2008. After consideration of public input, two alternatives 
were carried forward in the National Environmental Policy Act (NEPA) 
(42 U.S.C. 4321 et seq.) process, including establishment of Sonoran 
pronghorn in Areas A and D, which is what we are proposing in this 
document. Specific population establishment techniques are described 
for both areas (see Release Procedures, below), and we propose to 
establish Sonoran pronghorn as a nonessential experimental population 
in these areas under section 10(j) of the Act.
    The NEP encompasses Areas A and D, as well as all areas into which 
Sonoran pronghorn are likely to disperse. The NEP is defined as 
follows: In Arizona, an area 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 Highway 
85 on the west, Interstates 10 and 19 on the east, and the United 
States-Mexico border on the south.
    Section 10(j) of the Act requires that an experimental population 
be wholly separate geographically from other wild populations of the 
same species. The Colorado River; Interstates 8, 10, and 19; and 
Highway 85, which form the boundaries of the NEP, are barriers to 
movement. Interstate 8 separates Area A from the current U.S. 
population, and Highway 85 forms a boundary between Area D and the 
current U.S. population. We do not expect Sonoran pronghorn to cross 
these barriers. Brown and Ockenfels (2007, pg. 29) found that high-
speed highways with right-of-way fences, such as these, were virtually 
Sonoran pronghorn-proof due to stringent fencing and high volume 
traffic and that interstate highways are nothing short of impassable 
for the species. Only once has a pronghorn been known to cross 
Interstate 8 (1973, Phelps 1981, p. 27) and only once has a pronghorn 
been known to cross Highway 85 and its associated right-of-way fences 
into BMGR-E (2008; Howard 2008, p. 1).
    Nonetheless, in the unlikely event that a pronghorn moves outside 
the NEP, the individual, lone pronghorn does not constitute a 
population. The Department defines ``population'' as a potentially 
self-sustaining group ``in common spatial arrangement,'' (50 CFR 17.3) 
and thus determined a ``geographic separation'' is any area outside the 
area in which a particular population sustains itself. See Wyoming Farm 
Bureau Fed'n, 987 F. Supp. at 1373; 59 FR at 60256. These definitions 
preclude the possibility of population overlap as a result of the 
presence of individual dispersing pronghorn--by definition lone 
dispersers do not constitute a population or even part of a population, 
since they are not in ``common spatial arrangement'' sufficient to 
interbreed with other members of a population. The evidence suggests 
that the likelihood of a lone pronghorn crossing the NEP boundary is 
very low, so it follows that the probability of that lone disperser 
encountering another pronghorn of the opposite sex and reproducing is 
even more remote.
    The status, as endangered or a member of the NEP, of any dispersing 
pronghorn that manages to cross Highway 85 or other barriers between 
the NEP and the current range would be defined geographically. Any 
Sonoran pronghorn within the NEP area would be considered a member of 
the nonessential experimental population (including any dispersing 
animals from within the current range that cross into the NEP area), 
whereas any Sonoran pronghorn outside of the NEP would be fully 
protected under the Act as an endangered species.
    The geographical extent that we are proposing for NEP designation 
is larger than needed, as only portions of this proposed NEP area 
contain suitable habitat. Within the NEP, Sonoran pronghorn habitat is 
limited to valleys. Mountainous areas, such as the Kofa, Castle Dome, 
Palomas, and Gila Bend mountains, do not provide habitat for this 
species; nor do developed areas within the valleys, such as 
agricultural areas and towns and cities. However, the NEP area 
represents what we believe to be the maximum geographical extent to 
which Sonoran pronghorn could move if released in Areas A and D. Once 
released into these areas, we expect the Sonoran pronghorn 
population(s) to grow and expand into adjacent suitable habitats, 
potentially moving to the boundaries of the NEP. However, mountainous 
areas and developed agriculture and urban areas in the NEP would not be 
occupied because these areas are not considered habitat for Sonoran 
pronghorn. In the unlikely event that any of the released Sonoran 
pronghorn, or their offspring, move across interstate highways or other 
barriers (e.g., river or mountainous areas, developed agriculture 
areas, or urban areas) to outside the designated NEP area (but not into 
the area occupied by the wild population), then the Service would 
evaluate the need, in the context of the 10(j) requirements, to amend 
the 10(j) rule to enlarge the boundaries of the NEP area to include the 
area of the expanded population. As discussed above, the likelihood of 
pronghorn moving from the NEP area into the current range is very low.

Release Procedures

    The IDT developed the methods of release of Sonoran pronghorn into 
Areas A and D with the objective of maximizing the likelihood of 
success in establishing herds, while minimizing the impact to the 
source population (the animals in the captive breeding pen at Cabeza 
Prieta NWR) and limiting

[[Page 5737]]

mortality or injury to translocated Sonoran pronghorn to the maximum 
extent possible. In King Valley, Kofa NWR (Area A), a rectangular-
shaped, 0.5 sq mi (1.29 sq km) captive-breeding pen would be 
constructed, beginning in spring 2010. The pen would include water 
sources and irrigated areas to enhance forage production, as well as 
two observation towers from which the animals would be monitored. In 
December 2010 and January 2011, 11 pronghorn (10 females and 1 male) 
would be moved to the pen from the captive-rearing pen at Cabeza Prieta 
NWR. These animals would be individually tranquilized using a dart gun 
and moved one or two at a time by helicopter. Biennial rotation of the 
breeding male and death of any Sonoran pronghorn in the breeding pen at 
Kofa NWR would require additional flights to bring new animals from 
Cabeza Prieta NWR. Methods perfected at Cabeza Prieta NWR will be 
employed in these activities, which have been used successfully with 
minimal mortality of pronghorn. Assuming successful captive-breeding at 
the Kofa NWR pen, up to 20 Sonoran pronghorn would be released annually 
into suitable habitats outside of but adjacent to the pen site at Kofa 
NWR, beginning as early as the winter of 2012 or 2013 and recurring 
each winter until 2020. Sonoran pronghorn in the pen, as well as 
animals released, would be closely monitored to determine success or 
need for adaptive management. Success criteria will be developed by the 
recovery team prior to the release of any animals. Concurrently, if 
excess animals are available from the captive breeding pen at Cabeza 
Prieta NWR (not needed to augment existing herds or for the pen at Kofa 
NWR), these animals would be captured from the pen, transported to a 
holding pen in Area D, held temporarily, and then released as a group. 
The holding pen in Area D is located in the Hat Mountain area (locally 
known as BMGR-East ``Area B'') in Maricopa County, Arizona. Ideally, 
the Sonoran pronghorn would be captured together and moved quickly to a 
holding pen, allowed to recover for a brief period, and released 
together. Released animals in Area D would be monitored via aircraft 
and on-the-ground personnel to determine survival, reproduction, and 
other measures of success. Release techniques will be revised as needed 
to ensure success. You can find additional description of the release 
procedures and monitoring protocols in the draft EA (find under docket 
FWS-R2-2009-0077 at http://www.regulations.gov or contact CPNWR--see 
contact information above--for copies of this document).

Status of Proposed Population

    We have determined that these proposed populations are 
nonessential. This determination has been made for the following 
    (a) Wild populations of the Sonoran pronghorn, totaling about 470 
animals, currently exist at: (1) Cabeza Prieta NWR, OPCNM, BMGR, and 
adjacent BLM lands, (2) in the El Pinacate region of Sonora, and (3) 
south and east of Highway 8 in Sonora.
    (b) A captive-breeding pen at Cabeza Prieta NWR maintains a captive 
population and provides stock to augment the wild populations in 
Arizona and Sonora. The pen has been highly successful. First stocked 
with pronghorn in 2004, the original group of 11 animals has grown to 
71 as of this writing (October 2009), and another 21 pronghorn have 
been released from the pen into the wild.
    (c) The first priority for use of animals in the captive-breeding 
pen at Cabeza Prieta NWR is to augment herds within the boundaries of 
the current range of the species; hence, relocation of Sonoran 
pronghorn from the captive breeding pen to Kofa NWR would not inhibit 
the augmentation efforts for the herds within the boundaries of the 
current range of the species. Sonoran pronghorn produced at the Cabeza 
Prieta pen that are not needed to augment herds within the current 
range or to populate the Kofa NWR pen would be used to establish a 
population in Area D.
    (d) The possible failure of this proposed action would not 
appreciably reduce the likelihood of survival of the species in the 
wild because (1) the first priority for use of pronghorn from the 
captive-breeding pen at Cabeza Prieta NWR is to augment the wild herd, 
and (2) recovery actions have been implemented in the United States to 
ameliorate the effects of drought on the species (U.S. Fish and 
Wildlife Service 2009, p. 9, 18-19).
    (e) Through programs of work endorsed by the Canada/Mexico/U.S. 
Trilateral Committee for Wildlife and Ecosystem Conservation and 
Management, the U.S. Fish and Wildlife Service and AGFD coordinate with 
Mexican partners on recovery of the Sonoran pronghorn in Mexico.
    If this proposal is adopted, we would ensure, through our section 
10 permitting authority and the section 7 consultation process, that 
the use of Sonoran pronghorn from the donor population at Cabeza Prieta 
NWR for releases in Areas A or D is not likely to jeopardize the 
continued existence of the species in the wild. Establishment of 
additional Sonoran pronghorn populations within the species' historical 
range is a necessary step in recovery (Service 2002, p. 38).
    The special rule that accompanies this 10(j) rule is designed to 
broadly exempt from the section 9 take prohibitions any take of Sonoran 
pronghorn that is incidental to otherwise lawful activities. We provide 
this exemption because we believe that such incidental take of members 
of the NEP associated with otherwise lawful activities is necessary and 
advisable for the conservation of the species, as activities that 
currently occur or are anticipated in the NEP area are generally 
compatible with Sonoran pronghorn recovery. For example, in Area A, 
there are vast expanses of open valleys without major barriers to 
pronghorn movement that provide suitable habitat. These valleys include 
King Valley at Kofa NWR, Palomas Plain, the southern end of the 
Ranegras Plain, and portions of the Yuma Proving Grounds. The La Posa 
Plain and Castle Dome Plain also provide habitat. Highway 95 runs 
north-south through those plains, and although it may somewhat inhibit 
movement to the west side of those plains, it is not a substantial 
barrier because it lacks right-of-way fences. In Area D, there is 
considerable habitat in the valleys among the Sauceda, Sand Tank, 
Batamote, and other mountains in that region. There are existing 
military activities at Yuma Proving Grounds in Area A and BMGR-E in 
Area D, but pronghorn have coexisted with military activities for many 
years at the BMGR (deVos 1989, pp. 15-16; Krausman et al. 2001, pp. 2, 
80-90; Krausman et al. 2005, pp. 20-22); as a result, we believe they 
would persist with the similar activities conducted at Yuma Proving 
Grounds and in Area D. Although some forms of military activities could 
potentially result in incidental death or injury of individual 
pronghorn, no incidental take has ever been documented due to military 
activities. There would be some likelihood of Sonoran pronghorn 
drownings in canals in Area A. Canals are present in agricultural areas 
on the southern, eastern, and northeastern portions of Area A; Sonoran 
pronghorn are known to drown in such canals (Rautenstrauch and 
Krauseman 1986, p. 9). However, the major canal on the southern border 
of Area A, the Wellton-Mohawk Canal, is equipped with ramps and steps 
designed to prevent ungulate drownings, and a series of wildlife waters 
exist to the north of the canal as

[[Page 5738]]

alternative water sources. Most of the canals elsewhere in Area A are 
too small to result in Sonoran pronghorn entrapment. Other activities, 
such as recreational hunting and camping, vehicle use, livestock 
grazing, and small-scale rural or agricultural development, are 
anticipated to either have minimal effects on Sonoran pronghorn or 
would be limited in extent (e.g., rural and agricultural development).
    Under section 7(a)(1) of the Act, all Federal agencies are mandated 
to use their authorities to conserve listed species. In addition, the 
BLM has a written policy of conferring with the Service, under section 
7(a)(4), on their actions that may affect proposed species. Some 
activities would have greater potential to compromise the success of 
the Sonoran pronghorn reestablishment than those described above. For 
instance, construction of new highways or new canals in the NEP could 
create barriers to movement and bisect important pronghorn habitats. 
There is also the potential for BLM to permit large-scale solar power 
plants, which would be constructed in the valleys and could eliminate 
up to tens of thousands of acres of habitat. Other BLM-authorized 
projects, such as agricultural leases, could also potentially remove 
large blocks of habitat and perhaps compromise the success of this 
project. The potential for these projects to impact the reestablishment 
is probably greatest on BLM lands in the valleys to the east of Kofa 
NWR. The Service may have the opportunity through the section 7(a)(4) 
conferring process to work with the BLM to minimize the potential 
adverse effects of solar plants, agricultural leases, highways, or 
other projects that may compromise Sonoran pronghorn recovery.


    The lands within the NEP area are managed and listed in descending 
order of acreage within areas A and D as follows: Area A--the Service 
(Kofa NWR), Department of the Army (Yuma Proving Grounds), BLM, Arizona 
State Lands Department, private landowners, and Colorado River Indian 
Tribes; Area D: Tohono O'odham Nation, BLM, Department of the Air Force 
(BMGR-E), private owners, and Arizona State Land Department. Outside of 
Areas A and D, but within the NEP, land ownership is similar, but also 
includes lands within the Gila River Indian Reservation, Ak-Chin Indian 
Reservation, Pascua Yaqui Indian Reservation, San Xavier Reservation, 
Buenos Aires NWR, Saguaro National Park, OPCNM, Tucson Mountain Park, 
and Coronado National Forest. Due to the management flexibility 
provided by the NEP designation and the special rule, we do not 
anticipate that establishment of Sonoran pronghorn in Areas A or D and 
subsequent dispersal of Sonoran pronghorn from the release sites will 
affect management on Tribal, BLM, National Forest, Department of 
Defense, State, or private lands. Through section 7 consultations on 
NWR lands and National Park Service lands, some changes in management 
may occur to reduce adverse effects to pronghorn, including minimizing 
the likelihood of incidental take. However, we believe few changes 
would be needed, because management of these lands already is broadly 
compatible with Sonoran pronghorn recovery. Other Federal agencies that 
propose actions on Kofa NWR or National Park Service lands would also 
be required to consult with us under section 7, if such activities may 
affect Sonoran pronghorn. For instance, some activities conducted by 
Yuma Proving Grounds (e.g., overflights of Kofa NWR) would be subject 
to the consultation requirements. Some Federal agencies, such as BLM, 
that propose actions outside of Kofa NWR or National Park Service lands 
may elect to work with the Service voluntarily through the section 
7(a)(4) conferring process to ensure that adverse effects of their 
actions on Sonoran pronghorn in the NEP area are minimized.
    The Service (Cabeza Prieta NWR, Kofa NWR, and Ecological Services), 
AGFD, OPCNM, Luke Air Force Base, BLM, and other partners, in close 
coordination with the Sonoran Pronghorn Recovery Team, would plan and 
manage the establishment of new populations of Sonoran pronghorn. This 
group would closely coordinate on releases, monitoring, and 
coordination with landowners and land managers, among other tasks 
necessary to ensure successful population establishment. Management 
issues related to the Sonoran pronghorn NEP that have been considered 
    (a) Mortality: The regulations implementing the Act define 
``incidental take'' as take that is incidental to, and not the purpose 
of, the carrying out of an otherwise lawful activity (50 CFR 17.3), 
such as agricultural activities and other rural development, ranching, 
military training and testing, camping, hiking, hunting, vehicle use of 
roads and highways, and other activities that are in accordance with 
Federal, Tribal, State, and local laws and regulations. If this 10(j) 
rule is finalized, incidental take of Sonoran pronghorn within the NEP 
area would not be prohibited, provided that the take is unintentional, 
not due to negligent conduct, and is in accordance with the special 
rule that is a part of this 10(j) rule. However, if there is evidence 
of intentional take of a Sonoran pronghorn within the NEP that is not 
authorized by the special rule, we would refer the matter to the 
appropriate law enforcement entities for investigation. We expect 
levels of incidental take to be low because, as discussed in part (d) 
of Status of Newly Established Population above, the establishment of 
new populations is compatible with most existing human use activities 
and practices for the area. In the current range of the pronghorn in 
the U.S., no incidental take has been documented from military 
activities, recreation, use of highways, and most other activities that 
occur both in the current range and in the NEP; the exception being 
canals, in which Sonoran pronghorn have drowned on several occasions. 
More specific information regarding take can be found in the Proposed 
Regulation Promulgation section of this proposed rule.
    (b) Special handling: In accordance with 50 CFR 17.21(c)(3), any 
employee or agent of the Service, any other Federal land management 
agency, or State personnel, designated for such purposes, may in the 
course of their official duties, handle Sonoran pronghorn to aid sick 
or injured Sonoran pronghorn, or to salvage dead Sonoran pronghorn. 
However, non-Service personnel and their agents would need to acquire 
permits from the Service for these activities.
    (c) Coordination with landowners and land managers: The Service and 
cooperators have identified issues and concerns associated with the 
proposed Sonoran pronghorn population establishment through the NEPA 
scoping comment period. The proposed population establishment also has 
been discussed with potentially affected State agencies, Tribes, and 
private landowners. Affected State agencies, Tribes, landowners, and 
land managers have either indicated support for, or no opposition to, 
the proposed population establishment, provided a NEP is designated and 
a special rule is promulgated to exempt incidental take and some forms 
of intentional take for management purposes from the section 9 take 
prohibitions. More specific information regarding take can be found in 
the Proposed Regulation Promulgation section of this proposed rule.
    (d) Monitoring: A monitoring and adaptive management plan for the 
population establishment program

[[Page 5739]]

would be implemented by the Service, AGFD, and other partners to 
determine if the program is successful. The monitoring will assess all 
aspects of the population establishment program, from capture and 
movement of the animals to the captive breeding pen (Area A) or holding 
area (Area D), monitoring of the animals in these captive facilities, 
and monitoring and tracking released Sonoran pronghorn in the release 
areas, including Sonoran pronghorn waters and any forage enhancement 
vegetation plots developed to support the established herds. Monitoring 
of released Sonoran pronghorn will be conducted to determine the 
following: (1) Mortality and recruitment rates, (2) causes of mortality 
among adult and juvenile pronghorn, (3) reliance on free-standing water 
sources, (4) movement corridors and barriers to movements, and (5) 
habitat preferences. Each released animal will be fitted with an ear 
tag and radio collar. A limited number of Sonoran pronghorn will be 
fitted with Geographic Positioning System (GPS) platform telemetry 
collars. It is expected the transmitters will function for 3 to 5 
years. Telemetry flights with a fixed-wing aircraft will be conducted 
twice a month. Each Sonoran pronghorn will be observed from an altitude 
of 1,000 feet (ft) above ground level with the aid of binoculars. Group 
size and composition (sex and age), habitat type, and terrain will be 
recorded. Additional monitoring of individual pronghorn and herd 
movements will be done from the ground, particularly from high points 
where valley habitats of the pronghorn can be viewed. All monitoring 
flights and on-the-ground surveillance will be closely coordinated with 
and approved by the Tribal, military, and other land managers and 
owners where such monitoring will occur. As Sonoran pronghorn become 
established and breed in the establishment areas, the percentage of 
animals tagged or radio-collared will decline over time, and additional 
animals may need to be captured and radio collared to adequately 
monitor the herds. Ideally, at least 10 percent of a population will be 
equipped with radio collars. Monitoring data will be assessed regularly 
by the Recovery Team, and methods will be revised as needed to increase 
the likelihood of successful population establishment and to increase 
efficiency. A comprehensive review, assessment, and report of the 
reestablishment program by the Recovery Team will occur at a frequency 
of no less than once every 5 years.
    (e) Public awareness and cooperation: Public scoping for the 
Sonoran pronghorn population establishment project was conducted in the 
fall of 2008. Actions included an October 30, 2008, scoping letter sent 
to approximately 6,000 names, a news release to local media sources, 
and a series of three open houses held in the Arizona cities of Yuma, 
Tucson, and Phoenix, during November 18-20, 2008. We accepted written 
public scoping comments until December 12, 2008. We received 44 written 
responses about the project. We discuss issues identified in the 
responses in the EA. The IDT used these issues to refine the proposed 
action and alternatives in the EA, and to identify mitigation measures 
to avoid or reduce potential project effects. The IDT also used the 
public concerns to determine which resources would be the greatest 
focus of the EA analysis.

Peer Review

    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will provide copies of this proposed rule to 
three or more appropriate and independent specialists in order to 
solicit comments on the scientific data and assumptions relating to the 
supportive biological and ecological information for this proposed NEP 
designation. The purpose of such review is to ensure that the proposed 
NEP designation is based on the best scientific information available. 
We will invite these peer reviewers to comment during the public 
comment period and will consider their comments and information on this 
proposed rule during preparation of a final determination.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under Executive Order 12866 (E.O. 12866). OMB bases its 
determination upon the following four criteria:
    (a) Whether the proposed rule will have an annual effect of $100 
million or more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the proposed rule will create inconsistencies with 
other Federal agencies' actions.
    (c) Whether the proposed rule will materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    (d) Whether the proposed rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq., whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We are certifying that this rule will not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The area that would be affected if this proposed rule is adopted 
includes the release areas at Kofa NWR and BMGR-E and adjacent areas 
into which pronghorn may disperse, which over time could include 
significant portions of the NEP, where valley habitats for the 
pronghorn occur. Mountainous areas and developed agriculture and urban 
areas in the NEP would not be occupied because these areas are not 
considered habitat for Sonoran pronghorn. Because of the regulatory 
flexibility for Federal agency actions provided by the NEP designation 
and the exemption for incidental take in the special rule, we do not 
expect this rule to have significant effects on any activities within 
Tribal, Department of Defense, BLM, National Wildlife Refuge, National 
Park Service, State, or private lands within the NEP. On National 
Wildlife Refuges and units of the National Park System within the NEP, 
Federal action agencies would be required to consult with us, under 
section 7(a)(2) of the Act, on any of their activities that may affect 
the Sonoran pronghorn. However, because current management of these 
areas is consistent with the needs of the pronghorn (see part (d) of 
Status of Proposed Population above), we do not anticipate that 
consultation would significantly change proposed Federal actions on 
those lands. In portions of

[[Page 5740]]

the NEP outside of National Wildlife Refuge and National Park Service 
lands, in regard to section 7(a)(2), the population is treated as 
proposed for listing and Federal action agencies are not required to 
consult on their activities. Section 7(a)(4) requires Federal agencies 
to confer (rather than consult) with the Service on actions that are 
likely to jeopardize the continued existence of a proposed species. But 
because the NEP is, by definition, not essential to the survival of the 
species, conferring will likely never be required for the Sonoran 
pronghorn populations within the NEP area. Furthermore, the results of 
a conference are advisory in nature and do not restrict agencies from 
carrying out, funding, or authorizing activities. Nonetheless, some 
agencies, such as BLM, voluntarily confer with us on actions that may 
affect proposed species. In addition, section 7(a)(1) requires Federal 
agencies to use their authorities to carry out programs to further the 
conservation of listed species, which would apply on any lands within 
the NEP area. As a result, and in accordance with these regulations, 
some modifications to proposed Federal actions within the NEP area may 
occur to benefit the Sonoran pronghorn, but we do not expect projects 
to be halted or substantially modified as a result of these 
    If adopted, this proposal would broadly authorize incidental take 
of Sonoran pronghorn within the NEP area. The regulations implementing 
the Act define ``incidental take'' as take that is incidental to, and 
not the purpose of, the carrying out of an otherwise lawful activity 
such as, agricultural activities and other rural development, ranching, 
military training and testing, camping, hiking, hunting, vehicle use of 
roads and highways, and other activities in the NEP area that are in 
accordance with Federal, Tribal, State, and local laws and regulations. 
Intentional take for purposes other than authorized data collection or 
recovery purposes would not be permitted. Intentional take for research 
or recovery purposes would require a section 10(a)(1)(A) recovery 
permit under the Act.
    The principal activities on private property near the NEP area are 
agriculture, ranching, rural development, and recreation. We believe 
the presence of the Sonoran pronghorn would not affect the use of lands 
for these purposes because there would be no new or additional economic 
or regulatory restrictions imposed upon States, non-federal entities, 
or members of the public due to the presence of the Sonoran pronghorn, 
and Federal agencies would only have to comply with sections 7(a)(2) 
and 7(a)(4) of the Act in these areas. Therefore, this rulemaking is 
not expected to have any significant adverse impacts to activities on 
private lands within the NEP area.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) If adopted, this proposal will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that 
this proposed rulemaking will not impose a cost of $100 million or more 
in any given year on local or State governments or private entities. A 
Small Government Agency Plan is not required. As explained above, small 
governments would not be affected because the proposed NEP designation 
will not place additional requirements on any city, county, or other 
local municipalities.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for the Sonoran pronghorn would not impose any additional 
management or protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. When populations of 
federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding those populations are significantly reduced. 
Section 10(j) of the Act can provide regulatory relief with regard to 
the taking of reestablished species within an NEP area. For example, 
this proposed rule would not prohibit the taking of Sonoran pronghorn 
in the NEP area outside of National Wildlife Refuge and National Park 
Service lands when such take is incidental to an otherwise legal 
activity, such as agricultural activities and other rural development, 
ranching, military training and testing, camping, hiking, hunting, 
vehicle use of roads and highways, and other activities that are in 
accordance with Federal, State, Tribal and local laws and regulations.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule would 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule 
would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Arizona. Achieving the 
recovery goals for this species would contribute to its eventual 
delisting and its return to State management. No intrusion on State 
policy or administration is expected; roles or responsibilities of 
Federal or State governments would not change; and fiscal capacity 
would not be substantially directly affected. The special rule operates 
to maintain the existing relationship between the State and the Federal 
government and is being undertaken in coordination with the State of 
Arizona. Therefore, this rule does not have significant Federalism 
effects or implications to warrant the preparation of a Federalism 
Assessment under the provisions of Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections (3)(a) and 
(3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. This proposed rule does 
not contain any new information collections that require approval. OMB 
has approved our collection of information associated with reporting 
the taking of experimental populations (50 CFR

[[Page 5741]]

17.84(p)(6)) and assigned control number 1018-0095. We may not collect 
or sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We have prepared a draft EA as defined under the authority of the 
National Environmental Policy Act of 1969. It is available from the 
Cabeza Prieta NWR (see for further information contact section), http:/
/www.regulations.gov, and from our Web site at http://www.fws.gov/

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior Manual Chapter 512 DM 2, we have consulted with 21 
Tribal Nations whose lands or interests might be affected by this rule. 
The Tohono O'odham Nation participated in scoping meetings and provided 
comments on draft documents and proposals. The Ak-Chin Indian Community 
also provided written comments. The only substantial comments from 
Tribes were related to cultural resource surveys at the specific sites 
where pens will be constructed, which we will do.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Because this action is not a significant energy action, no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    We are required by E.O. 12866, E.O. 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comment should be as specific as 
possible. For example, you should tell us the numbers of the sections 
are paragraphs that are unclearly written, which sections for sentences 
are too long, the sections where you feel lists and tables would be 
useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Cabeza Prieta NWR (see FOR FURTHER 


    The primary authors of this proposed rule are staff members of 
Cabeza Prieta NWR and the Service's Arizona Ecological Services Office 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:


    1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by revising the entry for ``Pronghorn, 
Sonoran'' under ``MAMMALS'' in the List of Endangered and Threatened 
Wildlife to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

                                                                      * * * * * * *
Pronghorn, Sonoran...............  Antilocapra           U.S.A. (AZ),         Entire, except       E                       543          N/A           NA
                                    americana             Mexico..             where listed as an
                                    sonoriensis.                               experimental

[[Page 5742]]

Pronghorn, Sonoran...............  Antilocapra           U.S.A. (AZ),         In Arizona, an area  XN              ...........           NA     17.84(v)
                                    americana             Mexico..             north of
                                    sonoriensis.                               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 Highway
                                                                               85 on the west,
                                                                               Interstates 10 and
                                                                               19 on the east,
                                                                               and the U.S.-
                                                                               Mexico border on
                                                                               the south.

                                                                      * * * * * * *

    3. Amend Sec.  17.84 by adding paragraph (v) to read as follows:

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (v) Sonoran pronghorn (Antilocapra americana sonoriensis).
    (1) The Sonoran pronghorn (Antilocapra americana sonoriensis) 
(pronghorn) population identified in paragraph (v)(12) of this section 
is a nonessential experimental population (NEP).
    (2) No person may take this species, except as provided in 
paragraphs (v)(3) through (6) of this section.
    (3) Any person with a valid permit issued by the U.S. Fish and 
Wildlife Service (Service) under Sec.  17.32 may take pronghorn within 
the NEP area for scientific purposes, the enhancement of propagation or 
survival of the species, and other conservation purposes consistent 
with the Endangered Species Act (Act).
    (4) A pronghorn may be taken within the boundaries of Yuma Proving 
Grounds; Barry M. Goldwater Range; lands of the Arizona State Land 
Department; Bureau of Land Management lands; privately owned lands; and 
lands of the Tohono O'odham Nation, Colorado River Indian Tribes, Gila 
River Indian Reservation, Ak-Chin Indian Reservation, Pascua Yaqui 
Indian Reservation, and San Xavier Reservation within the NEP area, 
provided that such take is incidental to, and not the purpose of, the 
carrying out of any otherwise lawful activity; and provided that such 
taking is reported as soon as possible in accordance with paragraph 
(v)(6) of this section. Otherwise lawful activities are any activities 
in compliance with land management regulations, hunting regulations, 
Tribal law, and all other applicable law and regulations, and include, 
but are not limited to, military training and testing, agriculture, 
rural and urban development, livestock grazing, camping, hiking, 
hunting, recreational vehicle use, sightseeing, nature or scientific 
study, rockhounding, and geocaching, where such activities are 
    (5) Pursuant to a Memorandum of Understanding (MOU) among the 
Service, Arizona Game and Fish Department, and the Tribes listed in 
paragraph (v)(4) of this section, any employee or agent of the parties 
to the MOU who is designated for such purpose may, when acting in the 
course of official duties, take a Sonoran pronghorn if such action is 
necessary to:
    (i) Aid a sick, injured, or orphaned Sonoran pronghorn, including 
rescuing such animals from canals;
    (ii) Dispose of a dead Sonoran pronghorn specimen, or salvage a 
dead specimen that may be useful for scientific study;
    (iii) Move a Sonoran pronghorn for genetic purposes or to improve 
the health of the population; or
    (iv) Capture and release a Sonoran pronghorn for relocation, to 
collect biological data, or to attach, service, or detach radio-
telemetry equipment.
    (6) Any taking pursuant to paragraphs (v)(3) through (5) of this 
section must be reported as soon as possible by calling the U.S. Fish 
and Wildlife Service, Arizona Ecological Services Office, 201 N Bonita 
Avenue, Suite 141, Tucson, AZ 85745 (520/670-6150), or the Cabeza 
Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ 
85321 (520/387-6483). Upon contact, a determination will be made as to 
the disposition of any live or dead specimens.
    (7) No person may possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any Sonoran pronghorn or 
Sonoran pronghorn parts taken in violation of these regulations.
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed, any offense defined in 
paragraphs (v)(2) and (7) of this section.
    (9)(i) The boundaries of the designated NEP area are based on the 
maximum estimated range of pronghorn that are released in and become 
established within the NEP area. These boundaries are physical barriers 
to movements, including major freeways and highways, and the Colorado 
River. All release sites will be within the NEP area.
    (ii) All pronghorn found in the wild within the boundaries of the 
NEP area after the first releases will be considered members of the 
NEP. Any pronghorn occurring outside of the NEP area are considered 
endangered under the Act.
    (iii) The Service has designated the NEP area to accommodate the 
potential future movements of a wild pronghorn. All released pronghorn 
and their progeny are expected to remain in the NEP area due to the 
geographical extent of the designation and substantial barriers to 
movement that form the boundaries of the NEP.
    (10) The NEP will be monitored closely for the duration of the 
program. Any pronghorn that is determined to be sick, injured, or 
otherwise in need of special care will be recaptured to the extent 
possible by Service and/or State

[[Page 5743]]

or Tribal wildlife personnel or their designated agent and given 
appropriate care. Such pronghorn will be released back to the wild as 
soon as possible, unless physical or behavioral problems make it 
necessary to return them to a captive-breeding facility.
    (11) The Service plans to evaluate the status of the NEP every 5 
years to determine future management status and needs, with the first 
evaluation occurring not more than 5 years after the first release of 
pronghorn into the NEP area. All reviews will take into account the 
reproductive success and movement patterns of individuals released, 
food habits, and overall health of the population. This evaluation will 
include a progress report.
    (12) The areas covered by this proposed nonessential experimental 
population designation are in Arizona. They include the area 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 Highway 85 on the west, Interstates 10 and 19 
on the east, and the U.S.-Mexico border on the south.
    (13) Note: Map of the proposed NEP area for the Sonoran pronghorn 
in southwestern Arizona follows.

[[Page 5744]]


[[Page 5745]]

* * * * *

    Dated: January 20, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-2230 Filed 2-3-10; 8:45 am]