98-26096. Endangered and Threatened Wildlife and Plants: Establishment of a Nonessential Experimental Population of Black-footed Ferrets in Northwestern Colorado and Northeastern Utah

[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Rules and Regulations]
[Pages 52824-52841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26096]


      

[[Page 52823]]

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Part III





Department of the Interior





_______________________________________________________________________



Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants: Establishment of a 
Nonessential Experimental Population of Black-footed Ferrets in 
Northwestern Colorado and Northeastern Utah; Final Rule

Federal Register / Vol. 63, No. 190 / Thursday, October 1, 1998 / 
Rules and Regulations

[[Page 52824]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD99


Endangered and Threatened Wildlife and Plants: Establishment of a 
Nonessential Experimental Population of Black-footed Ferrets in 
Northwestern Colorado and Northeastern Utah

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service or we), in 
cooperation with the Bureau of Land Management, the Colorado Division 
of Wildlife, and the Utah Division of Wildlife Resources will 
reintroduce black-footed ferrets (Mustela nigripes) into northwestern 
Colorado and northeastern Utah. The purposes of this reintroduction are 
to implement actions required for the recovery of the species and to 
evaluate release techniques. We will release surplus captive-raised 
black-footed ferrets in 1998, if possible, and release additional 
animals annually for several years thereafter or until we establish a 
self-sustaining population. If the northwestern Colorado/northeastern 
Utah program is successful, a wild population could be established 
within about 5 years. The northwestern Colorado/northeastern Utah 
population is designated as a nonessential experimental population in 
accordance with section 10(j) of the Endangered Species Act of 1973, as 
amended. We will manage this population under the provisions of section 
10(j) through this rule.

DATES: This rule is effective October 1, 1998.

ADDRESSES: You may inspect the complete file for this rule during 
normal business hours at the following offices: U.S. Fish and Wildlife 
Service, Colorado Field Office, 755 Parfet, Suite 361, Lakewood, 
Colorado 80215; U.S. Fish and Wildlife Service, Ecological Service's 
Office at 764 Horizon Drive, South Annex A, Grand Junction, Colorado, 
81506-3946; U.S. Fish and Wildlife Service, Utah Field Office, 145 East 
1300 South, Suite 404, Salt Lake City, Utah, 84115.
    You must make an appointment in advance if you wish to inspect the 
file.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Leachman at the Grand 
Junction address above, telephone: [phone]; or Mr. Edward Owens at 
the Salt Lake City address above, telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

    A proposal to designate a nonessential experimental population in 
northwestern Colorado and northeastern Utah was published in the 
Federal Register on April 29, 1997 (62 FR 23202).
    1. Legislative: Significant changes to the Endangered Species Act 
of 1973 (Act), as amended, were made in 1984 with addition of 
subsection 10(j) to allow for the designation of specific populations 
of listed species as ``experimental populations.'' Previously, we were 
authorized to reintroduce populations into unoccupied portions of a 
listed species' historical range when it would foster the conservation 
and recovery of the species. However, local citizens often opposed 
these reintroductions because they were concerned about the placement 
of restrictions and prohibitions on Federal and private activities. 
Under section 10(j), the Secretary of the Interior can designate 
reintroduced populations established outside the species' current range 
but within its historical range as ``experimental.'' This designation 
allows us considerable flexibility in managing reintroduced populations 
of endangered species. The Act provides for treating experimental 
populations as threatened species under the Act, affording us greater 
discretion in devising management programs and special regulations for 
listed species. These regulations are usually less restrictive than 
those established for endangered species and can allow for greater 
compatibility with established human activities in the reintroduction 
area.
    The Secretary of Interior can so designate populations under 
section 10(j) of the Act, and based on the best available information, 
must determine whether such populations are essential, or nonessential, 
to the continued existence of the species. Regulatory restrictions may 
be considerably reduced under a nonessential experimental population 
(NEP) designation, which is defined as being nonessential to the 
recovery of the species. For the purposes of section 7 of the Act, we 
treat NEPs as if they are species proposed for listing if they are 
located outside of the National Wildlife Refuge System or National Park 
System. If a NEP is located within a park or refuge it is treated as if 
it is listed as a threatened species. Section 7 provisions for Federal 
agency coordination have limited application to experimental 
populations found outside the above two systems. The two provisions 
that apply are: (1) section 7(a)(1)--which requires all Federal 
agencies to use their authority to conserve listed species; and (2) 
section 7(a)(4)--which requires Federal agencies to confer with the 
Service on actions that are likely to jeopardize the continued 
existence of a proposed species throughout its range. Section 7 of the 
Act does not affect activities undertaken on private lands unless they 
are authorized, funded, or carried out by a Federal agency.
    However, pursuant to section 7(a)(2), a donor population can be the 
source of individuals used to establish an experimental population, 
provided their removal is not likely to jeopardize the continued 
existence of the species, and appropriate permits are issued in 
accordance with 50 CFR 17.22 prior to their removal. In this case, the 
donor population is a captive bred population, propagated with the 
intention of reestablishing wild populations where feasible, to achieve 
recovery goals.
    2. Biological: The black-footed ferret has a black facemask, black 
legs, and a black-tipped tail; is nearly 60 centimeters (2 feet) in 
length and weighs up to 1.1 kilograms (2.5 pounds). It is the only 
ferret species native to North America. The historical range of the 
species, based on specimen collections, extends over 12 western States 
(Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North 
Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming) and the 
Canadian Provinces of Alberta and Saskatchewan. Prehistoric evidence 
indicates that ferrets once occurred from the Yukon Territory in Canada 
to New Mexico and Texas (Anderson et al. 1986).
    Black-footed ferrets depend almost exclusively on prairie dog 
colonies for food, shelter, and denning (Henderson et al. 1969, Forrest 
et al. 1985). The range of the ferret coincides with that of prairie 
dogs (Anderson et al. 1986), and ferrets with young have been 
documented only in the vicinity of active prairie dog colonies. 
Historically, black-footed ferrets have been reported from black-tailed 
prairie dog (Cynomys ludovicianus), white-tailed prairie dog (Cynomys 
leucurus), and Gunnison's prairie dog (Cynomys gunnisoni) towns 
(Anderson et al. 1986).
    Drastic reductions in prairie dog numbers and distribution occurred 
during the last century, due to widespread poisoning of prairie dogs, 
the conversion of native prairie to farmlands, and outbreaks of 
sylvatic plague; particularly in the southern portions of their range. 
This severe reduction in the availability of their principal prey 
species in combination

[[Page 52825]]

with other factors such as secondary poisoning from prairie dog 
toxicants and canine distemper, resulted in the near extinction of the 
black-footed ferret in the wild.
    In 1974, a remnant wild population of ferrets in South Dakota, 
originally discovered in 1964, suddenly disappeared. We then believed 
the species to be extinct until 1981, when a small population was 
discovered near Meeteetse, Wyoming. In 1985-1986, the Meeteetse 
population declined to only 18 animals due to an outbreak of canine 
distemper. Following this critical decline, the remaining individuals 
were taken into captivity in 1986-1987 to serve as founders for a 
captive propagation program. Since that time, highly successful captive 
breeding efforts have provided the basis for ferret reintroductions 
over a broad area of their formerly occupied range. Today, the captive 
population of juveniles and adults annually fluctuates between 300 and 
600 animals depending on time of year, yearly reproductive success, and 
annual mortalities. The captive ferret population is currently divided 
among 7 captive breeding facilities throughout the United States and 
Canada, with a small number on display for educational purposes at 
several facilities.
    3. Recovery Goals/Objectives: The recovery plan for the black-
footed ferret (U.S. Fish and Wildlife Service 1988) establishes a 
national recovery objective to ensure the survival of the species by:
    (a) Increasing the captive population of ferrets to 200 breeding 
adults by 1991, which has been achieved;
    (b) Establishing a prebreeding census population of 1,500 free-
ranging breeding adults in 10 or more different populations, with no 
fewer than 30 breeding adults in each population by the year 2010; and,
    (c) Encouraging the widest possible distribution of reintroduced 
animals throughout their historic range.
    We can reclassify the black-footed ferret to threatened status when 
we meet the conditions of the national recovery objective, assuming 
that the mortality rate of established populations remains at or below 
a rate at which new populations are established or increasing. We have 
been successful in cooperative efforts to rear black-footed ferrets in 
captivity and in only 8 years, the captive population has increased 
from 18 to nearly 400 animals. In 1988, we divided the single captive 
population into three subpopulations to avoid the possibility of a 
catastrophic event (e.g., contagious disease) eliminating the entire 
captive population. Presently, there are 7 separate subpopulations in 
captivity. Current recovery efforts emphasize the reintroduction of 
animals back into the wild from the captive source stock. This is 
possible due to achievement of the minimum captive population goal of 
240 breeding adults. Surplus individuals produced in captivity are now 
available for use in nonessential experimental populations (i.e., for 
reintroductions).
    4. Reintroduction Sites: The Service, in cooperation with 11 
western State wildlife agencies, identified potential ferret 
reintroduction sites within the historical range of the species. We 
selected these reintroduction sites in coordination with the Black-
Footed Ferret Interstate Coordinating Committee and the Black-footed 
Ferret Recovery Implementation Team. The Northwestern Colorado/
Northeastern Utah Black-footed Ferret Experimental Population Area 
(ExPA) is the fifth of these release sites selected thus far for 
ferrets, and occupies portions of Rio Blanco and Moffat Counties, 
Colorado; Sweetwater County, Wyoming; and Uintah and Duchesne Counties, 
Utah.
    In Colorado, the ExPA occupies all of Moffat and Rio Blanco 
Counties west of Colorado State Highway 13, west to the Utah State 
line, and north to the Wyoming State line. In Wyoming, the ExPA runs 
between Range 96 and 97 West (eastern edge), Range 102 and 103 West 
(western edge), and Township 14 and 15 North (northern edge). In Utah, 
the ExPA occupies all of Uintah and Duchesne Counties in northeastern 
Utah. The eastern border of Uintah County adjoins the western borders 
of Moffat and Rio Blanco Counties in Colorado. Coyote Basin, located on 
the Utah/Colorado border is a relatively flat valley surrounded by low 
hills and ridges. This site is bounded on the south by the White River 
and the west by Kennedy Wash. The Coyote Basin Primary Management Zone 
is bounded by the Utah-Colorado State line on the east, by the east-
west line separating Townships 7 and 8 South on the north, by the 
north-south line separating Ranges 23 and 24 East on the west, and by 
the east-west section line 1.6 kilometers (1 mile) south of Township 8 
South on the south.
    White-tailed prairie dog colonies in the ExPA form a complex 
extending from southwestern Wyoming, south to Elk Springs, Colorado, 
and west to Vernal, Utah. We do not expect ferrets to disperse outside 
the proposed experimental area. This is highly unlikely due to its 
large size (3,218,907 hectares or 7,953,920 acres), the absence of 
suitable surrounding habitat (lack of prairie dog towns), and the 
presence of vegetative and topographical barriers. There are 
approximately 95,073 hectares (234,926 acres) of white-tailed prairie 
dog colonies in the ExPA that could potentially support at least 139 
families of ferrets.
    Contiguous prairie dog colonies and the lack of any physical 
barriers between the White River Resource Area in Colorado and Coyote 
Basin in Utah should provide for the movement of ferrets between the 
two areas. Ferrets released in Coyote Basin are likely to disperse to 
suitable contiguous habitats in Colorado. Due to the presence of 
physical barriers and less suitable prairie dog towns, the dispersal of 
ferrets from the Little Snake Management Area release site to other 
areas within the ExPA is unlikely. The NEP designation will apply to 
any ferret found within the boundaries of the ExPA.
    a. Northwestern Colorado Experimental Population Sub-Area: In 1987, 
the Colorado Prairie Dog Management Group and the Black-footed Ferret 
Recovery Working Group selected northwestern Colorado as a potential 
release site because of: (1) the historical presence of ferrets in the 
area; (2) the abundance of prairie dogs; (3) the extensive amount of 
lands under management by the Bureau of Land Management (BLM); and (4) 
the area's relative isolation from human activities.
    The Northwestern Colorado Experimental Population Sub-Area includes 
lands in northwestern Colorado and southwestern Wyoming. Black-footed 
ferrets historically occurred in this area, but recent ferret surveys 
indicate they have been extirpated from the area. Numerous surveys 
conducted from 1981 to 1993 by the Service, the Colorado Division of 
Wildlife, the BLM, and private consultants failed to locate any ferrets 
and we believe this adequately confirms their absence from the area. 
The Wyoming Black-footed Ferret Advisory Team endorses the experimental 
population area as defined in this rule (Bob Luce, Wyoming Game and 
Fish Department, in litt. 1993). The Colorado sub-area is about 
1,218,633 hectares (3,011,210 acres) in size, and consists of 
approximately 49.5 percent BLM lands, 38 percent private lands, 6 
percent State school lands, 5 percent National Park Service lands, 1 
percent Colorado Division of Wildlife lands, and 0.5 percent National 
Wildlife Refuge lands. Prairie dog towns cover approximately 65,620 
hectares (162,146 acres) of this sub-area and they occur primarily on 
BLM lands within their Little Snake Resource Area, the White River 
Resource Area, and the Green River Resource Area.

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    b. Northeastern Utah Experimental Population Sub-Area: The 
Northeastern Utah Experimental Population Sub-Area, containing 
2,001,101 hectares (4,942,720 acres) of habitat, includes all of Uintah 
and Duchesne Counties in Utah. Landownership in the NEP area is 54 
percent Federal public lands (i.e., BLM, Forest Service, Fish and 
Wildlife Service, Bureau of Reclamation, National Park Service), 24 
percent private lands, 16 percent Ute Indian Tribe trust reservation 
lands, and 6 percent state lands. The sub-area lies within the historic 
range of the species. The Utah Black-footed Ferret Working Group 
selected Coyote Basin as the preferred reintroduction site because of 
its prairie dog numbers and their distribution. Based on surveys in 
1985 and 1986, about 4,215 hectares (10,416 acres) of occupied white-
tailed prairie dog habitat occurs within the immediate release area 
proposed, and another 25,238 hectares (62,364 acres) occur in the 
surrounding ExPA. The BLM and the Utah School and Institutional Trust 
Lands Administration manage most of the lands in Coyote Basin.
    We will release black-footed ferrets in the management areas only 
if suitable biological conditions exist, and the management framework 
developed by the Colorado Division of Wildlife, the Utah Division of 
Wildlife Resources, the Service, the Ute Indian Tribe, and private 
landowners is implemented. We will reevaluate this reintroduction 
effort should any of the following conditions occur:
    (a) Failure to maintain sufficient habitat to support at least 30 
breeding adults after 5 years.
    (b) Failure to maintain at least 90 percent of prairie dog habitat 
that was available in 1993.
    (c) A wild ferret population is found within the ExPA following the 
initial reintroduction and prior to the first breeding season. The only 
black-footed ferrets currently occurring in the wild result from 
reintroductions in Wyoming, Montana, South Dakota, and Arizona. 
Consequently, the discovery of a black-footed ferret at the proposed 
experimental population area prior to the reintroduction would confirm 
the presence of a new population, which would prevent designation of an 
experimental population for the area.
    (d) Discovery of an active case of canine distemper or any other 
contagious disease in any animal on or near the reintroduction area 6 
months prior to the scheduled release.
    (e) Less than 20 captive black-footed ferrets are available for the 
first release.
    (f) Funding is not available to implement the reintroduction phase 
of the project in northwestern Colorado/northeastern Utah.
    (g) Land ownership changes or cooperators withdraw from the 
project.
    All the above conditions will be based on information routinely 
collected by us or the BLM. None of the conditions are dependent on 
information from private parties.
    5. Reintroduction protocol: The reintroduction protocol calls for 
the release of 20 or more captive ferrets in the first year of the 
program, and up to 50 or more animals annually for the following 2 to 4 
years. Release candidates must be excess animals available for the 
reintroduction and not required for the continuation of the captive 
breeding program. Any loss of these animals will not affect the overall 
genetic diversity of the captive population. Since captive breeding of 
ferrets will continue, a source of additional ferrets will be available 
to replace those removed for the reintroduction effort. In future 
releases, it may be necessary to obtain and translocate ferrets from 
established, reintroduced populations in order to maintain maximum 
genetic diversity in other wild populations.
    Release methods for reintroducing captive ferrets into the wild 
include varying degrees of preparation or conditioning. A hard release 
involves releasing ferrets raised entirely within an indoor captive 
breeding facility to the wild without any exposure to natural 
environmental conditions, or when ferrets are exposed to some degree of 
pre-conditioning at one site and subsequently are taken to another site 
for immediate release. A soft release involves an acclimation period 
during which the ferrets receive food, shelter, and protection from 
predators for an extended period of time after relocation to the 
release site and prior to their release. In each method, we release 
ferrets from above-ground cages connected to underground nest boxes. In 
either method, captive-bred ferrets may also undergo an extensive 
period of pre-conditioning by placing them in large pens enclosing a 
portion of a prairie-dog colony. The enclosure exposes ferrets to 
prairie dog burrows, requires ferrets to practice predatory skills, and 
allows ferrets to become physiologically fine-tuned to local 
environmental conditions. It may also be necessary to surround each 
above-ground cage with an electric fence to prevent damage from 
livestock or access by predators. We will decide, in coordination with 
our cooperators, on the best reintroduction method for the release. We 
are developing a specific release protocol to serve as a condition of 
the endangered species permit authorizing the northwestern Colorado/
northeastern Utah release. To enhance reintroduction success, we will 
move pregnant females to the release site prior to giving birth. We 
will release adult ferrets and their offspring into the wild as family 
groups.
    We vaccinate released animals against certain diseases (including 
canine distemper) and take appropriate measures to reduce predation 
from coyotes, badgers, and raptors. All ferrets we release are marked 
with passive integrated transponder tags (PIT tags) and we will monitor 
several animals with radio-collars to document their behavior and 
movements. Other monitoring will include spotlight surveys, snow 
tracking surveys, and visual surveillance.
    Since captive-born ferrets are more susceptible to predation, 
starvation, and environmental conditions than wild animals, up to 90 
percent of the animals could die during the first year of release. 
Mortality is usually the highest during the first month of release. In 
the first year of the program, a realistic goal is to have at least 10 
percent of the animals survive the first winter.
    The goal of the Colorado/Utah reintroduction is to establish a 
free-ranging population of at least 30 adults within the ExPA after 5 
years of release. At the release site, we will monitor population 
demographics and all sources of mortality on an annual basis (for up to 
five years). We do not expect to change the nonessential experimental 
designation for this population unless: 1) we deem this reintroduction 
a failure (i.e., we are unable to establish a wild ferret population in 
the area, and no free-ranging ferrets remain in the ExPA), or 2) the 
black-footed ferret is fully recovered in the wild and no longer needs 
the protection of the Endangered Species Act.
    6. Status of Reintroduced Population: We determine this 
reintroduction to be nonessential to the continued existence of the 
species for the following reasons:
    (a) The captive population (founder population of the species) is 
protected against the threat of extinction from a single catastrophic 
event by housing ferrets in seven separate subpopulations. Hence, any 
loss of an experimental population in the wild will not threaten the 
survival of the species as a whole.
    (b) The primary repository of genetic diversity for the species are 
the 240 adults in the captive breeding population. Animals selected for 
reintroduction purposes are surplus to the captive population. Hence, 
any loss of animals in reintroduction will not

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affect the overall genetic diversity of the species.
    (c) Captive breeding will provide for the replacement of any 
animals lost during this reintroduction attempt. Juvenile ferrets 
produced in excess of the numbers needed to maintain the breeding 
population in captivity are available for reintroduction.
    This reintroduction is the fifth release of ferrets back into the 
wild. The other experimental populations occur in Wyoming, southwestern 
South Dakota, northcentral Montana, and Arizona. Reintroductions are 
necessary to further the recovery of this species to the extent that 
reclassification can occur. The nonessential experimental population 
designation alleviates landowner concerns about possible land use 
restrictions that would otherwise apply under the provisions of the 
Act. This nonessential designation provides a more flexible management 
framework for protecting and recovering black-footed ferrets while 
ensuring that the daily activities of landowners can continue.
    7. Location of Reintroduced Population: Section 10(j) of the Act 
requires that an experimental population be geographically separate 
from other wild populations of the same species. Since 1991, extensive 
ferret surveys in the area (conducted by the Service and our 
cooperators) have failed to locate any ferrets or evidence of their 
presence (sign such as skulls, feces, trenches). Therefore, we conclude 
that wild ferrets are no longer present in the ExPA, and that this 
reintroduction will not overlap with any wild population.
    Before the first breeding season, the nonessential experimental 
population will include all marked ferrets in the ExPA. After the first 
breeding season, the nonessential experimental population will include 
all ferrets located in the ExPA, including any unmarked offspring. All 
released ferrets and their offspring should remain in the ExPA because 
of prime prairie dog colonies and the surrounding geographic barriers. 
We will capture any ferret that leaves the ExPA and will either return 
it to the release site, translocate it to another site, place it in 
captivity, or leave it. If a ferret leaves the reintroduction area (but 
remains within the ExPA) and takes up residence on private property 
(including Ute Indian reservation trust lands), the landowner can 
request its removal. Therefore, ferrets will remain on private lands 
only when the landowner does not object to their presence on his/her 
property.
    We will mark all released ferrets and will attempt to determine the 
source of any unmarked animals found at the release site. An endangered 
species designation as allowed under the Act will apply to any ferret 
found outside the ExPA until genetic testing can confirm that it 
originated in the captive population or is the progeny of the released 
captive ferrets. If the animal is unrelated to members of the 
experimental population (possibly a wild animal), we will place it in 
captivity as part of the breeding population to improve the overall 
genetic diversity of the population. Existing contingency plans allow 
for the capture and retention of up to nine ferrets shown to have a 
wild heritage. If a landowner outside the experimental population area 
wishes black-footed ferrets to remain on his/her property, we will 
develop a conservation agreement in cooperation with the landowner.
    8. Management: This reintroduction is undertaken with the 
cooperation of the BLM, the Colorado Division of Wildlife, and the Utah 
Division of Wildlife Resources and in accordance with the Cooperative 
Management Plan for Black-footed Ferrets-Little Snake Management Area 
and the Cooperative Plan for the Reintroduction and Management of 
Black-footed Ferrets in Coyote Basin, Uintah County, Utah. You may 
obtain copies of the respective plans by contacting the District 
Manager, Bureau of Land Management, 455 Emerson Street, Craig, 
Colorado, 81625, and/or the Regional Manager, Utah Division of Wildlife 
Resources, Northern Region, 152 East 100 North, Vernal, Utah 84078.
    We discuss additional considerations pertinent to the 
reintroduction below:
    a. Monitoring: Several monitoring efforts will occur during the 
first five years of the program. We will annually monitor prairie dog 
distribution and numbers, and the occurrence of sylvatic plague. 
Testing for canine distemper will begin prior to the release, and 
continue each year. We will monitor the released ferrets and their 
offspring using spotlight surveys, snowtracking, other visual survey 
techniques, and radio-telemetry of some individuals. The survey design 
will incorporate methods to monitor breeding success and juvenile 
survival rates.
    Through public outreach programs, we will inform the public and 
other State and Federal agencies about the presence of ferrets in the 
ExPA and the handling of any sick or injured animals. We have requested 
that the Colorado Division of Wildlife and the Utah Division of 
Wildlife Resources serve as the primary contacts for governmental 
agencies and private landowners whose jurisdictions are within the 
reintroduction area. To meet our responsibilities under Secretarial 
Order 3206, we will request that the Ute Indian Tribe in Utah inform 
Tribal members regarding the potential for ferrets on reservation trust 
lands, and the proper handling of any sick or injured ferrets that are 
found. The agencies and the Ute Indian Tribe will also serve as the 
primary contacts to report any injured or dead ferrets. Report any 
injured or dead ferrets to the appropriate Service Field Supervisor in 
each respective State (see ADDRESSES section). The Field Supervisor 
will also notify the Service's Division of Law Enforcement concerning 
any dead or injured ferret. It is important that we determine the cause 
of death for any ferret carcass found so if you discover a ferret 
carcass, do not disturb it, but instead report the carcass as soon as 
possible to the appropriate Service office.
    b. Disease Considerations: The presence of canine distemper in any 
mammal on or near the reintroduction site will cause us to reevaluate 
the reintroduction program. Prior to a release, we will establish the 
presence/absence of canine distemper in the release area by collecting 
at least 10 coyotes (and possibly other predators), from the release 
site. The predators will be tested for canine distemper using accepted 
techniques.
    We will attempt to limit the spread of distemper by discouraging 
people from bringing unvaccinated pets into the ExPA. We are requesting 
people to report any dead mammal or any unusual behavior observed in 
animals found within the area. Efforts are underway to develop an 
effective canine distemper vaccine for black-footed ferrets.
    Routine sampling for sylvatic plague within prairie dog towns will 
take place before and during the reintroduction efforts.
    c. Genetic Considerations: Ferrets selected for the reintroduction 
are excess to the needs of the captive population. Experimental 
populations of ferrets are usually less genetically diverse than the 
overall captive populations. Selecting and reestablishing breeding 
ferrets that compensate for any genetic biases in earlier releases can 
correct this disparity. The ultimate goal is to establish wild ferret 
populations with the maximum genetic diversity possible to attain with 
the founder individuals.
    d. Prairie Dog Management: We will work with landowners, Federal 
and State agencies, and the Ute Indian Tribe in the ExPA to resolve any 
management conflicts in order to: (1) maintain sufficient prairie dog 
colonies to

[[Page 52828]]

support up to 30 adult black-footed ferrets and; (2) to maintain at 
least 90 percent of the prairie dog habitat that was available in 1993.
    e. Mortality: We will only use animals which are surplus to the 
captive breeding program for this reintroduction. Predator control, 
prairie dog management, vaccination, supplemental feeding, and/or 
improved release methods should partially offset any natural mortality. 
Public education will help reduce potential sources of human-related 
mortality.
    The Act defines ``incidental take'' as take that is incidental to, 
and not the purpose of, the carrying out of an otherwise lawful 
activity. A person may take a ferret within the ExPA provided that any 
resulting injury or mortality to a ferret is unintentional, and was not 
due to negligence or malicious conduct. Such conduct will not 
constitute ``knowingly taking'' and we will not pursue any legal 
recourse. However, when we have evidence of knowingly (i.e., 
intentionally) taking a ferret we will refer matters to the appropriate 
authorities for prosecution. We request that you report any take of a 
black-footed ferret, whether incidental or not, to the local Service 
Field Supervisor (see ADDRESSES section). We expect a low level of 
incidental take since the reintroduction is compatible with traditional 
land use practices in the area.
    Studies of wild black-footed ferrets at Meeteetse, Wyoming, found 
that ferrets were occasionally killed by motor vehicles and dogs. We 
expect a rate of take similar to what was documented at Meeteetse, and 
therefore, we estimate a human-related mortality of about 12 percent of 
all reintroduced ferrets and their offspring, annually. If this level 
is exceeded in any given year we will develop and implement measures to 
reduce the level of take occurring.
    f. Special Handling: Under special regulations that apply to 
experimental populations, Service employees and agents acting on behalf 
of the Service may handle black-footed ferrets for scientific purposes, 
relocation efforts to avoid conflict with human activities, recovery 
efforts, relocation to other reintroduction sites, and in aiding sick, 
injured, and orphaned animals, or salvaging dead animals. We will 
return to captivity any ferret we determine to be unfit to remain in 
the wild. We will also determine the disposition of all sick, injured, 
orphaned, and dead animals.
    g. Coordination with Landowners and Land Managers: The Service and 
our cooperators tried to identify all major issues associated with this 
reintroduction before the development of the proposed rule. We 
discussed this reintroduction with State agencies, private landowners, 
and the Ute Indian Tribe within the release site. The initial 
opposition to the project by the Ute Indian Tribe has been resolved 
(see part ``l''), and the state agencies support the project provided: 
(1) we release animals in the ExPA with the nonessential experimental 
population designation; and (2) we do not restrict land use activities 
in the ExPA without the knowledge and consent of the landowners. Some 
individual citizens remain opposed to the project because they still 
believe it will impact their use of public lands, that we intend to 
change the experimental population designation, and/or that the funding 
level necessary for the reintroduction is unacceptably high. The 
comment section of this final rule addresses their concerns.
    h. Potential for Conflict with Oil, Gas and Mineral Development 
Activities: Development of minerals, oil and gas in the Little Snake 
Resource Area could reduce available ferret habitat by approximately 3 
percent (890 hectares, or 2,200 acres), if oversight is not provided. 
Within Coyote Basin in Utah, mineral extraction is the primary land 
use. However, the development of existing oil, gas, and mineral 
resources will not jeopardize the establishment of ferrets in the 
release area. We will work with exploration companies to avoid any 
adverse impacts to ferrets and their habitat, should they develop any 
new oil or gas fields in the Coyote Basin. We encourage land management 
agencies and landowners within the management area to adopt the Coyote 
Basin Management Plan mineral extraction guidelines. Contingencies 
included in the black-footed ferret management plans developed for Utah 
and Colorado, the BLM's resource management plans, as well as the 
recommendations developed by the local black-footed ferret working 
groups, will guide the development of mineral resources.
    i. Potential for Conflict with Grazing and Recreational Activities: 
We do not expect conflicts between livestock grazing and ferret 
management. Grazing or prairie dog management on private lands within 
the ExPA will continue without additional restriction during 
implementation of the ferret recovery activities. If proposed prairie 
dog control on private, State trust lands, or Ute Indian Tribe 
reservation trust lands locally affects ferret prey base within a 
specific area, State and Federal biologists will jointly determine 
potential impacts to ferrets. We do not expect adverse impacts to 
ferrets from big game hunting, prairie dog shooting, and trapping of 
furbearers or predators in the ExPA. If private activities impede the 
establishment of ferrets, we will work closely with landowners to 
develop appropriate procedures to minimize the conflicts.
    j. Protection of Black-footed Ferrets: We will release ferrets in a 
manner that provides short-term protection from natural (predators, 
disease, lack of prey base) and human related sources of mortality. 
Improved release methods, vaccination, predator control, and the 
management of prairie dog populations should help reduce natural 
mortality. Releasing ferrets in areas with little human activity and 
development will minimize opportunities for human-related sources of 
mortality. We will work with landowners to help avoid certain 
activities that could impair ferret recovery.
    k. Public Awareness and Cooperation: We will undertake educational 
efforts to inform the general public of the importance of this 
reintroduction project in the overall recovery of the black-footed 
ferret. This program should increase public awareness of the 
significance of the ExPA program and the habitats upon which ferrets 
depend.
    l. Ute Indian Tribe: On June 10, 1997, the Ute Indian Tribe in Utah 
provided a letter to the BLM in Vernal adamantly opposing the 
reintroduction of black-footed ferrets on the Ute Indian Reservation in 
Utah. The Ute Indian Tribe identified the following concerns:
    (1) The Service may withdraw the experimental designation in the 
future, or, may impose stricter rules governing activities that occur 
near experimental populations. The Ute Indian Tribe states that either 
of these circumstances could impact resource development on their 
reservation, cause expansion of prairie dog colonies on the 
reservation, and increase the cost of resource development.
    (2) The Ute Indian Tribe cites circuit court decisions that require 
the consideration of Tribal resources and values when off-reservation 
activities occur near a reservation. Specifically, the Ute Indian Tribe 
states that in their view, the BLM did not adequately address the 
cultural, social, and economic impacts of ferret reintroduction in its 
National Environmental Policy Act (NEPA) compliance responsibilities.
    Many individuals in other States where black-footed ferret 
reintroduction is now occurring, have also expressed concern that the 
Service will remove the experimental population designation (see 
Service response for issue #2). However, as stated at section 5 of the

[[Page 52829]]

final rule, the Service does not intend to make such a change unless: 
(1) the ferret release is determined to be a failure (i.e., we are 
unable to establish a wild ferret population in the area, and no free-
ranging individuals remain in the ExPA), or (2) the black-footed ferret 
fully recovers to the extent that Endangered Species Act protection for 
the species is no longer needed.
    Regarding the imposition of stricter rules near the experimental 
population area, we intend to manage all reintroduced populations of 
black-footed ferrets in Utah in accordance with ``A Cooperative Plan 
for the Reintroduction and Management of Black-footed Ferrets in Coyote 
Basin, Uintah County, Utah'', cited elsewhere in this final rule. This 
plan allows for continued, compatible natural resource development, and 
does not impose more strict regulations because of the reintroduction 
of black-footed ferrets.
    Regarding the lack of adequate attention to Ute tribal concerns 
through NEPA, the BLM in Utah is only in the early stages of its NEPA 
compliance responsibilities. The BLM has determined that to comply with 
NEPA, its resource management plan for the Book Cliffs Resource 
Management Area must be amended to include the black-footed ferret. The 
process that the BLM is using to prepare the amendment will address all 
the issues the Tribe has provided to the BLM.
    The Service will not release ferrets on the Ute Indian Tribe trust 
lands without prior approval of the Ute Tribe. We interpret the Tribe's 
June 10 letter, and subsequent meetings with their representatives, as 
concern that ferret releases off their trust lands could impact 
resource development on Tribal Reservation trust lands. To further 
clarify the Tribe's concerns, we met with representatives of the Ute 
Indian Tribe on April 22, 1998 to discuss our proposal to reintroduce 
black-footed ferrets into northeastern Utah and northwestern Colorado. 
During the meeting the Tribe stated that they wanted assurance from us 
that they would not have any obligations to provide habitat for black-
footed ferrets, i.e., that no requirement would be made of them to 
maintain existing prairie dog populations or create more prairie dog 
acres. On May 7, 1998, we provided a letter to the Tribe assuring them 
we would not require additional protection of prairie dogs due to the 
release of black-footed ferrets. We, therefore, will not require any 
habitat protection by the Tribe for the black-footed ferret, nor will 
we conduct any ferret release in any portion of the nonessential, 
experimental population area that we determine may affect Ute Indian 
Tribe reservation trust lands, and that the Tribe requests not take 
place. The Service believes this commitment, combined with maintaining 
the experimental population boundary as originally proposed, maximizes 
future management opportunities for black-footed ferrets in the 
experimental population boundary, addresses the Ute Indian Tribe 
concerns, and meets timely recovery of the black-footed ferret in the 
western United States. By this coordination and commitment, we believe 
we have also met the requirements of Secretarial Order 3206.
    m. Overall: The designation of the northwestern Colorado/
northeastern Utah population as a nonessential experimental population 
should encourage local cooperation since it allows greater flexibility 
in conducting normal activities within the release site. This 
designation is necessary in order to receive full cooperation from 
landowners, Federal, State and local governmental agencies, and 
recreational interests within the release site. Based on the above 
information, and utilizing the best scientific and commercial data 
available (in accordance with 50 CFR 17.81), we find that releasing 
black-footed ferrets into the ExPA will further the conservation and 
recovery of the species.

Summary of Comments and Recommendations

    The April 29, 1997, proposed rule and associated notifications 
requested all interested parties to submit factual reports or 
information that might contribute to the development of a final rule. 
Appropriate Federal and State agencies, county governments, scientific 
organizations, and other interested parties were contacted and 
requested to comment. Newspaper notices inviting public comment and 
advertising public hearings on the proposal were published in Colorado 
in the Denver Post on May 13, 1997, the Northwest Colorado Daily Press 
in Craig on May 16, 1997, the Rangely Times on May 15, 1997. We 
published an invitation for public comment in Rock Springs, Wyoming, in 
the Rocket Miner on May 14, 1997. Notices were also published in Utah 
in the Salt Lake City Tribune on June 3, 1997, the Utah Basin Standard 
in Roosevelt on June 3, 1997, and the Vernal Express on June 4, 1997.
    The Service mailed the proposed rule to 152 people representing 
individuals, State, Federal, and local governments and corporations, 
nongovernmental organizations affiliated with environmental, grazing, 
and recreational interests in Colorado, Utah and Wyoming, and the Ute 
Indian Tribe in Utah. This mailing list is from previous meetings and 
open houses we conducted in Utah and Colorado since 1990 regarding 
black-footed ferret recovery. A total of ten written comments were 
received from the three State area. Six supported the designation and 
four were opposed.
    Public hearings regarding the proposal were conducted in Denver, 
Craig, and Rangely, Colorado on June 2, 1997, June 3, 1997, and June 4, 
1997, respectively. We conducted a public hearing in Rock Springs, 
Wyoming on June 5, 1997. Public hearings were conducted in Salt Lake 
City and Vernal, Utah on June 9, 1997, and June 10, 1997, respectively. 
Each hearing began with verbal statements from the Service hearing 
officer and a Service biologist who gave background information on the 
rule process, described the hearing format, and provided details of 
black-footed ferret biology and Service recovery goals for the ferret. 
The hearing officer then invited the public to make statements, and a 
certified court reporter recorded each statement. A total of 38 verbal 
comments were received at the public hearings. Seven supported the 
proposal, 19 opposed the proposal, and 12 sought clarification of the 
proposals potential to impact land uses within the experimental 
population boundary.
    Following the closure of the comment period, all written and verbal 
comments were grouped by issue. Most of the written and verbal comments 
received addressed the potential for the designation to interfere with 
current and proposed land uses within the experimental population 
boundary, the cost of the black-footed ferret recovery program, and the 
concern that the Service would change the experimental nonessential 
population designation in the future. The following summary addresses 
the written and verbal comments presented at the public hearings and 
received during the comment period. Our response to each issue is given 
below.
    Issue #1: The Ute Indian Tribe commented that Coyote Basin, Utah 
``is to some extent bordered by Indian land and lies wholly within the 
jurisdictional boundaries of the Ute Indian Tribe . . .'' A separate 
commenter suggested consideration of the present jurisdiction of the 
Tribe.
    Service Response: The Ute Indian trust lands are wholly within the 
experimental population boundary, but about 9 miles west of the Coyote 
Basin Primary Management Zone. There will be no release of black-footed 
ferrets on the Ute Indian Reservation trust lands, or on lands that the 
Service determines

[[Page 52830]]

may impact the reservation trust lands, without concurrence by the Ute 
Indian Tribe (see above). We chose to include the Ute Indian 
Reservation trust lands within the experimental population boundary to 
extend the provisions of section 10(j) of the Endangered Species Act to 
the Reservation lands in the event that ferrets emigrate from the 
Coyote Basin Primary Management Zone to the Ute Indian trust lands. 
Black-footed ferrets released in Montana and South Dakota have not 
dispersed from their release site more than 6 miles. Lands between the 
Coyote Basin Primary Management Zone and the trust lands consist of 
pinyon-juniper woodlands and sagebrush flats which prevent occupancy by 
prairie dogs. Consequently, while it is conceivable that ferrets could 
travel 9 miles to reach the trust lands, the absence of contiguous 
prairie dog colonies makes such an event highly unlikely. The Ute 
Indian Tribe may request the removal of any ferret found within their 
reservation trust lands. Sections 7, 8f, 8i, and 8j under Supplementary 
Information in this final rule contain contingencies for the removal of 
ferrets from private lands when land use conflicts may occur.
    Issue #2: Concern that the Service will change the experimental, 
nonessential population designation in the future.
    Service Response: As stated in Section 5 of the Supplementary 
Information portion of this final rule, we do not expect to change the 
designation unless the reintroduction effort fails, or the species 
recovers. All the black-footed ferret experimental nonessential 
population designations made for release sites in Arizona, Montana, 
South Dakota, and Wyoming remain in effect as described in section 
(g)(9) of this final rule. Presently there are no proposals by the 
Service, or any requests on the part of other agencies or 
nongovernmental organizations, to amend any of the prior designations. 
Consequently, it is anticipated that the experimental, nonessential 
population designation for northwestern Colorado and northeastern Utah 
will continue in the future. If the release fails, we would likely 
abandon the experimental population designation because such a 
designation is unnecessary given the absence of the species in the 
area. If the release is successful and reclassification of the black-
footed ferret is warranted, we will then consider whether it is 
appropriate to retain the designation or pursue its retraction. Success 
under a nonessential experimental population designation would argue 
against upgrading the designation to essential, or reinstating an 
endangered or threatened designation because of potential conflicts 
with ongoing activities in the area. If the Service and cooperating 
agencies are able to recover a species under a nonessential, 
experimental population designation, there would be no cause to 
increase the degree of protection otherwise allowed under the 
Endangered Species Act. In any case, with publication of this final 
rule, making any change to the nonessential, experimental population 
designation would require a new proposed rule, a public comment period, 
public meetings, NEPA compliance, and other documentation prior to 
publication of a final rule to change or abandon the designation.
    Issue #3: Ferrets may disperse from their release site, potentially 
affecting land uses in areas outside the release area, and cause the 
Service to impose stricter rules governing resource development 
activities outside the boundaries of the experimental population area.
    Service Response: Investigations of black-footed ferret dispersal 
at existing experimental release sites, and research conducted at 
Meeteetse, Wyoming, confirm that ferret dispersal to areas outside of 
active prairie dog colonies is rare. Ferrets are not known to establish 
residence off of active prairie dog colonies. Recent modifications to 
ferret husbandry techniques have been successful in developing captive 
reared animals that stay nearer to release sites than the ferrets 
raised in captivity and released in earlier trials. The northwestern 
Colorado/northeastern Utah experimental population boundary encompasses 
all prairie dog colonies believed to be suitable for long-term 
occupation by ferrets. Consequently, we believe it is unlikely that 
ferrets will disperse to, and establish permanent residence within, 
areas outside the experimental population boundary. Contingencies 
stated in section 7 of the Supplementary Information in this final rule 
allow for capture and return of ferrets to the experimental release 
area, should this occur. Also see response to issue #36.
    Issue #4: The Ute Tribe suggested that ferret releases occur on 
lands that lie outside the Reservation.
    Service Response: We will not release black-footed ferrets on Ute 
Indian Trust lands, nor is it likely that ferrets will travel to the 
trust lands and establish permanent residence. Contingencies included 
in this final rule allow for removal of ferrets from private lands when 
landowners do not want them on their property. We will implement these 
contingencies at the request of the Ute Indian Tribe. Also see response 
to issue 1. The Service and its cooperators evaluated the Coyote Basin 
Primary Management Zone and found it to be the only suitable release 
site within the experimental population boundary in Utah. Further 
investigations will continue and additional sites recommended when 
appropriate. Identification of additional sites outside of the 
designated experimental population area will require initiation of a 
new experimental rule process.
    Issue #5: The rule ignores the wishes and needs of the Ute Tribe 
relating to ferret recovery.
    Service Response: The Service has not ignored the wishes and needs 
of the Ute Indian Tribe during the evaluation of the Coyote Basin 
Primary Management Zone. Congress amended the Endangered Species Act to 
incorporate section 10(j) to enhance the opportunity for release of 
federally listed species on private lands. We could have chosen to 
select an experimental population boundary that excluded Ute trust 
lands. However, we believe including the trust lands within the 
boundary will provide the flexibility for management of ferrets sought 
by the Tribe and the Service. With adoption of a boundary that excluded 
the trust lands, any ferret found on the trust lands following the 
release would be subject to all prohibitions of the Endangered Species 
Act. We address the Ute Tribe's concern for resource development on 
their trust lands by including the trust lands within the experimental 
population boundary. As stated above, we will not release ferrets that 
may impact reservation trust lands without concurrence from the Ute 
Indian Tribe.
    Issue #6: The Ute Tribe believes greater attention must be given to 
the cultural, social, and economic impact of ferret reintroduction, as 
well as tribal consultation demands, and implementing regulations and 
case law.
    Service Response: The BLM in Utah is only in the early stages of 
its NEPA compliance responsibilities. The BLM has determined that to 
comply with NEPA, its resource management plan for the Book Cliffs 
Resource Management Area requires amendments to include the black-
footed ferret. The process that the BLM is using to prepare the 
amendment will address all the issues the Tribe has provided to the 
BLM. The Service has also complied with Secretarial Order No. 3206, 
signed on June 5, 1997, and entitled ``American Indian Tribal Rights, 
Federal-Tribe Trust Responsibilities, and the Endangered Species Act.'' 
See paragraph 8.l of this final rule.
    Issue #7: A commenter from Colorado said the Service did not 
disclose intentions to release ferrets in Utah

[[Page 52831]]

during previous meetings held in Colorado.
    Service Response: The Service conducted a series of open houses 
regarding the proposal to release ferrets into northwestern Colorado in 
April 1995. Eighteen people attended the meeting in Rangely, Colorado 
on April 20, 1995. We have no official record of all issues discussed 
during the Rangely meeting; however, it may be that little or no 
attention was given to the potential for a black-footed ferret release 
in Utah because independent planning processes occurred in the two 
States. In 1996, we decided to pursue an experimental population 
designation that would encompass all prairie dog colonies in Utah, 
Colorado, and Wyoming that had a likelihood to be impacted by the 
release of ferrets in Utah or Colorado. While the plan to release 
ferrets in Utah may not have been advertised in Colorado, the public 
outreach process in Utah paralleled that in Colorado which included 
forming a local work group to address land use issues. This local work 
group in Utah will continue to function. Further, we have no reason to 
conceal a future release of ferrets in Utah from the Colorado public. 
We believe designation of an experimental, nonessential population of 
ferrets released in Utah protects land users in Colorado to a greater 
extent from the prohibitions of the Act.
    Issue #8: Black-footed ferrets have never occurred within the 
experimental population area. The proposal therefore, is not a 
``reintroduction,'' but rather an introduction of a species outside its 
historical range.
    Service Response: Published literature (available on request) 
documents that black-footed ferrets occurred in Rio Blanco and Moffat 
Counties, Colorado, and San Juan County, Utah. For example, a black-
footed ferret was collected at Morapos Creek about 19 miles southwest 
of Craig in 1941. All confirmed records of black-footed ferrets in 
North America overlap the prairie dog distribution in North America. 
Therefore, in the absence of physical evidence (e.g., carcass, bones, 
skulls), we assume that black-footed ferrets were historically a common 
predator within all active prairie dog colonies throughout North 
America. Consequently, while physical evidence may be lacking for 
specific areas within the experimental population boundary, we assume 
ferrets once occupied all active prairie dog colony complexes, based on 
the documented historical record from Colorado and Utah, and the 
presence of suitable habitat.
    Issue #9: The short- and long-term costs of the black-footed ferret 
program may be prohibitively high.
    Service Response: In 1995 (the most recent year analyzed), the cost 
of raising a black-footed ferret in captivity for delivery to a 
recovery site ranged from $4,000 to $5,000. The cost for each black-
footed ferret surviving for 7 to 8 months after release to breed in the 
wild was estimated at about $100,000. These costs are all inclusive of 
all captive rearing facilities, recovery site administration, 
mortalities of release ferrets, and salaries of staff. Since 1995, 
rearing ferrets in captivity has become more efficient and survival of 
ferrets released has increased. These modifications indicate that the 
cost of each ferret raised in captivity and surviving in the wild for 7 
to 8 months is decreasing. Continuing improvements to husbandry and 
field monitoring will reduce costs of these program elements. Because 
all costs associated with the recovery program are not static, we 
cannot provide a reliable estimate of the final cost of black-footed 
ferret recovery.
    Issue #10: When designing recovery measures for endangered species, 
the Service leaves man ``out of the equation.''
    Service Response: Social, economic, and cultural considerations are 
important elements in designing strategies to conserve endangered 
species. In light of these considerations, and in an effort to 
encourage public acceptance of endangered species reintroductions, 
Congress amended the Endangered Species Act in 1982 to include a new 
section 10(j) that allowed the Secretary of the Interior the 
opportunity to designate reintroduced populations as ``experimental.'' 
This section gives the Service more flexibility in the management of 
these populations by treating experimental populations as if they were 
threatened species, independent of the status of the donor populations, 
and providing for development of special rules for their management 
that are consistent with local land uses.
    Issue #11: We did not adequately describe in the public notices 
what form of presentation the public should use at the public hearings 
(e.g., prepared statements, verbal testimony, etc.).
    Service Response: The Service stated at the beginning of each 
hearing that written statements and verbal statements would receive 
equal consideration. Written statements were not expected, nor 
required, of anyone choosing to speak at the public hearings. The 
Service believes the 60-day comment period allowed on the proposed rule 
gave the public an opportunity to provide written comments if the 
hearings were considered an unacceptable forum.
    Issue #12: A request was made for a copy of the Congressional 
Record reporting the commenter's verbal and written testimony.
    Service Response: The commenter may be confusing the Federal 
Register with the Congressional Record. None of the comments regarding 
the proposal to release ferrets, or the comments received by the public 
on the proposal, will appear in the Congressional Record. All the 
verbal and written comments received were reviewed, grouped by topic, 
responded to by the Service, and published in this issue of the Federal 
Register. We will mail a copy of the final rule to all individuals 
providing either written or verbal comment on the proposed rule.
    Issue #13: Release of ferrets will reduce or foreclose development 
of mineral and coal resources, hunting, ranching, and employment 
opportunities on lands within the experimental population area.
    Service Response: Development of ``The Cooperative Management Plan 
for Black-footed Ferrets--Little Snake Management Area'' and ``A 
Cooperative Plan for the Reintroduction and Management of Black-footed 
Ferrets in Coyote Basin, Uintah County, Utah,'' included participation 
by representatives from oil and gas, hunting, off-highway vehicle, and 
ranching interests. The management plans recognize that the existing 
land uses are important to the cultural and economic vitality of local 
communities, and each plan includes specific measures to ensure the 
compatibility of the ferret release with these existing land uses. 
Specific measures are in place to ensure that oil and gas development 
can continue without impacting the ferret or prairie dogs to a degree 
that would threaten the potential success of the release effort. We 
will adopt an identical planning strategy to evaluate the potential for 
release of black-footed ferrets at other sites within the experimental 
population area.
    Issue #14: The Utah School and Institutional Trust Lands 
Administration suggested that the release of black-footed ferrets in 
Utah duplicate the strategy used for the release of California condors.
    Service Response: A Memorandum of Agreement between us and a 
coalition of county and local governments in Utah preceded the release 
of California condors in Utah. The agreement ensures, to the maximum 
extent practicable, that a condor release will not affect the current 
and future land,

[[Page 52832]]

water, or air uses within the experimental population area in Utah. We 
are a signatory to the Agreement, and will consider a similar approach 
for the release of ferrets in Utah.
    Issue #15: The Utah School and Institutional Trust Lands 
Administration made a request to ``. . . allow non-federal mineral 
estate owners to trigger ferret removal and rule revocation in the 
event that they feel that reintroduction is causing a detrimental 
effect on mineral development.''
    Service Response: The management plans adopted for the release of 
ferrets in Utah and Colorado provide for capture and removal of ferrets 
from private lands, if the private landowner does not want the ferrets 
on their property. The plan also provides contingencies for development 
of mineral resources (see section 7 and section 8h of the Supplementary 
Information in this final rule). The local black-footed ferret working 
groups will provide a forum for all land users to recommend removal of 
ferrets from an area when the objectives of ferret recovery and 
resource development appear to be in conflict, or when habitat 
conditions for ferrets have deteriorated. The Service cannot delegate 
the decision to capture and remove an endangered species to the private 
landowners. Similarly, we cannot delegate the authority to revoke the 
experimental designation to anyone else.
    Issue #16: Prairie dog numbers are low in parts of the experimental 
population area.
    Service Response: Prairie dog abundance in the experimental 
population area is dynamic due to disease, predation, and habitat 
modification. Prairie dogs are a food source for many predators, and 
are also highly susceptible to sylvatic plague. While prairie dog 
abundance and distribution may fluctuate between years, prairie dog 
abundance and distribution in the experimental population area is 
adequate to support its designation as a black-footed ferret recovery 
site.
    Issue #17: Ferrets and their habitat should receive as much 
protection as possible, and the experimental, nonessential designation 
may not provide adequate protection for recovery of the species.
    Service Response: The Service has spent many years working with 
local land users and agencies to fully evaluate existing and future 
potential threats to the black-footed ferret. We believe the 
nonessential experimental designation adequately protects the existing 
and future needs of ferrets and their habitat. Local black-footed 
ferret working groups will continue to alert everyone of potential 
conflicts between ferret recovery and proposed land uses. Furthermore, 
releasing ferrets as an endangered species, or an experimental, 
essential population, did not receive adequate support of the public or 
cooperating agencies. Consequently, while a stricter process for review 
of Federal actions would occur by releasing ferrets as endangered or as 
an experimental, essential population, public support would likely be 
absent, and the proposal would not likely be going forward. At this 
time, therefore, ferret release in the experimental population area 
would be unfeasible without the nonessential experimental population 
designation. This ``nonessential'' designation has proven to be an 
invaluable tool and has provided adequate protection for ferrets and 
their associated habitats at the other established release sites in 
Wyoming, Montana, South Dakota, and Arizona.
    The Service and cooperating agencies are fully aware of the need to 
maintain suitable habitat. It will be the responsibility of the 
cooperating agencies to ensure that anticipated land use changes are 
compatible with the needs of the ferrets. The establishment of local 
working groups with the participation of local land users will allow 
disclosure and evaluation of potential threats to ferrets prior to 
project construction.
    Issue #18: Several requests were made to change the experimental 
population boundary to protect commodity production. These requests 
were from Colowyo Coal Company L.P. in Colorado, a member of the public 
in Wyoming who stated that the boundary in Wyoming has changed since 
presented in 1995, and a member of the public in Utah.
    Service Response: Designation of the experimental population for 
the area described is unlikely to have any impact on existing or future 
coal mining operations by Colowyo Coal Company L.P. for the following 
reasons: (1) There are not sufficient prairie dog colonies within the 
areas leased by Colowyo to qualify as suitable habitat for black-footed 
ferrets. Consequently, there are no plans to release ferrets into 
Colowyo's leased lands; (2) If ferrets released at other locations in 
the experimental population area disperse onto lands leased by Colowyo 
Coal Company, the experimental nonessential designation will relax the 
requirements under section 7 of the Endangered Species Act; and (3) Due 
to the absence of suitable ferret habitat on lands leased by Colowyo, 
circumstances requiring restrictions on the leased lands to protect 
black-footed ferrets are not foreseeable. Therefore, we conclude that 
the requested boundary adjustment is not warranted.
    The boundary in Sweetwater County is the same as initially 
established in 1995. We described the boundary in this final rule to 
the Sweetwater County Commissioners on April 4, 1995, and to the public 
at an open house at Western Wyoming Community College in Rock Springs 
in April 1995. Amending the boundary of this proposal to include Grand 
County, Utah is not biologically justified for the release of ferrets 
in the Coyote Basin.
    Issue #19: There should be more information regarding the 
development of new oil and gas guidelines mentioned on page 23206 of 
the proposed rule.
    Service Response: In 1990, the Service developed draft ``Guidelines 
for Oil and Gas Activities in Prairie Dog Ecosystems Managed for Black-
footed Ferret Recovery.'' We abandoned adoption of the guidelines in 
1995. Oil and gas activities on Federal lands within the experimental 
population boundary will implement the strategies identified in the 
Little Snake Black-footed Ferret Management Plan, the Little Snake 
Resource Area Resource Management Plan, the White River Resource Area 
Resource Management Plan, the Cooperative Plan for the Reintroduction 
and Management of Black-footed Ferrets in Coyote Basin, Uintah County, 
Utah, the Book Cliffs Resource Area Resource Management Plan, and the 
Green River Resource Area Resource Management Plan. We will invite oil 
and gas industry representatives to participate in the local working 
group to help us and our cooperators to determine when ferret 
activities may conflict with their proposals, and what specific 
measures are available to ensure compatibility between the two 
objectives. Because the oil and gas guidelines do not exist, the text 
in the Supplementary Information section 8.h of the final rule is re-
worded.
    Issue #20: Canine distemper and/or sylvatic plague in parts of the 
experimental population area may prevent the long-term success of the 
reintroduction proposal.
    Service Response: Section 8.b of the Supplementary Information of 
this final rule addresses the implications of disease to the success of 
the proposal. The management plans for releases in Utah and Colorado 
also have contingencies developed relating to disease management. These 
contingencies include vaccinating all black-footed ferrets prior to 
release into

[[Page 52833]]

pre-release conditioning pens; vaccinating black-footed ferret kits at 
least once prior to release; re-administering medications to ferrets 
captured during monitoring; discouraging presence of domestic dogs near 
the pre-conditioning pens; encouraging routine vaccination of dogs; and 
educating upland bird hunters regarding the impact of distemper to 
ferrets. Additionally, local residents are encouraged in this rule to 
report wildlife that appear to be sick. Cooperators in the ferret 
recovery program will also conduct sylvatic plague research to more 
fully understand its consequences and identify potential remediation 
techniques.
    Issue #21: The Coyote Basin area is not suitable for the release of 
black-footed ferrets, due to ongoing and potential natural resource 
development.
    Service Response: Several commenters suggested that the Cisco 
Desert in west central Utah, areas in the vicinity of Flaming Gorge 
Reservoir, and other areas in the vicinity of existing Federal 
monuments, would be better alternative ferret release locations. At 
this time no adequate inventory of prairie dog abundance in the Cisco 
Desert to determine its suitability for ferret release is available. 
Because the Cisco Desert is outside the experimental population 
boundary, its designation as a future recovery site requires 
confirmation of its biological suitability as well as an additional 
rulemaking process comparable to the process described in this rule. 
Also, data indicates that there is not a sufficient prey base in the 
vicinity of Flaming Gorge Reservoir, nor at existing Federal monuments 
in Utah. We will evaluate other potential acceptable sites when they 
become known.
    Issue #22: If a black-footed ferret population is found in Utah, 
will oil and gas drilling continue?
    Service Response: The ``Cooperative Plan for the Reintroduction and 
Management of Black-footed Ferrets in Coyote Basin, Uintah County, 
Utah'' will direct the management of the black-footed ferrets within 
the Coyote Basin in Utah. This management plan contains recommendations 
on how to offset impacts of surface disturbance associated with 
potential oil and gas drilling. With this final rule, we conclude there 
are no wild ferrets occurring within the experimental population area, 
and we assume any ferret found within the experimental population area 
boundary to be a released animal. We will not require the oil and gas 
industry to search for black-footed ferrets; cooperators will conduct 
all necessary searches.
    Issue #23: The Service should comply with the guidelines developed 
by the Coyote Basin Black-footed Ferret Steering Committee if ferrets 
are reintroduced.
    Service Response: We agree. The local working groups established in 
both Utah and Colorado continue to evaluate and review the ferret 
release and its potential impacts to commodity production and 
recreation on an ongoing basis.
    Issue #24: The working group established for preparation of the 
BLM's Little Snake Resource Area Resource Management Plan should be 
reestablished and consider all views of Moffat County land users.
    Service Response: We will convene a local black-footed ferret 
working group to review release activities, identify potential 
conflicts with current land uses, and where appropriate, select 
alternatives or modifications to ensure that ferret release activities 
are compatible with existing land uses. We will invite Moffat County 
and other members of the public to be members of the working group.
    Issue #25: The Service should notify all interested parties of all 
the efforts on reintroduction of the ferret, and allow parties 
participation in the working groups.
    Service Response: As stated in response to the above issue, we will 
form a local black-footed ferret working group, and invite 
participation from all people that have expressed an interest in this 
proposal. Recent events in the release program will be broadcast to the 
public in a local newsletter.
    Issue #26: Thousands of prairie dogs occur in the Rangely, 
Colorado, area and have no natural enemies.
    Service Response: Studies conducted by the cooperators since 1989 
confirm that prairie dogs are abundant in the experimental population 
area, although prairie dog abundance can fluctuate due to sylvatic 
plague. Contrary to the commenter's statement, prairie dogs have many 
natural enemies in the experimental population area, including coyote, 
badger, red fox, ferruginous hawk, golden eagle, and the sport-hunting 
public. The reintroduction of the black-footed ferret as a natural 
predator of the prairie dog is unlikely to reduce prairie dog abundance 
in the experimental population area by an amount that would be 
noticeable by the public.
    Issue #27: It is difficult to obtain prairie dog control in the 
Rangely, Colorado area, and the presence of black-footed ferrets may 
make control more difficult to obtain in the future.
    Service Response: The proposed designation will not affect the 
ability to control prairie dogs in Rangely using currently available 
rodenticides. Most of these rodenticides require coordination with the 
Service prior to their use to determine whether a black-footed ferret 
search should precede prairie dog control. Existing label restrictions 
will continue to regulate rodenticide use on private lands. If there is 
a request for prairie dog control on private lands following release of 
ferrets, the cooperating agencies will determine whether it is likely 
that ferrets occupy the control site. To make sure that prairie dog 
control does not impact ferrets, the Service and cooperators will 
determine whether ferrets occur on the control site, remove the ferrets 
prior to release, or provide an alternative for control that poses no 
risk to black-footed ferrets.
    Issue #28: A commenter recalled the Service making a statement at 
the open house in Rangely, Colorado in 1995, that the ferret population 
was very low, and that a ferret release was very unlikely.
    Service Response: In 1995, the Service budget for endangered 
species recovery was not sufficient to allow any consideration of 
ferret release, and the outlook for funding in the future was poor. 
Black-footed ferret funding is not a line item in the Congressional 
budget process; consequently, funding for specific ferret recovery 
tasks do not receive approval years in advance of implementation. Due 
to the increase in funds available to the endangered species recovery 
program above levels in 1995, we can now initiate ferret reintroduction 
to the sites described in this rule. Since 1995, the BLM, the Colorado 
Division of Wildlife, the Animal and Plant Health Inspection Service, 
and Great Outdoors Colorado (lottery funds) have agreed to participate 
in ferret recovery activities.
    In 1995, there were fewer ferret kits produced in captivity than in 
any other year. Consequently, had all approvals been in place at that 
time, a ferret release was unlikely in Utah/Colorado due to the needs 
at existing release sites in Wyoming, South Dakota, and Montana. Ferret 
production in 1998 exceeded that of previous years, and ferret 
allocations to release sites now include adults as well as juveniles. 
Consequently, as the availability of ferrets has increased, conditions 
for releases at the Utah/Colorado sites are now more favorable.
    Issue #29: The Service has not shown the same diligence to full 
disclosure of issues relating to ferret recovery that the

[[Page 52834]]

public must demonstrate when defending their individual tax returns to 
the IRS.
    Service Response: Since 1990, no fewer than 24 open houses, public 
hearings, and other meetings have occurred to disclose the proposal to 
release ferrets into the experimental population area. We have always 
been candid regarding the proposed release, its implications to land 
uses, and the likelihood of the release in the near future. We have 
clearly stated our long-term commitment to ferret recovery in Colorado 
and Utah, but also stated that a target release date is dependent on 
availability of ferrets, an adequate prey base (prairie dogs), the 
prevalence of disease, and the compatibility of the release with 
existing land uses. We have fulfilled our commitment to the public to 
fully disclose details of the release and its potential impacts to 
them.
    Issue #30: What are the penalties for killing black-footed ferrets 
while driving cars or conducting other activities in the experimental 
population area?
    Service Response: Section (g)(5) of this final rule addresses the 
issue of incidental take of black-footed ferrets within the 
experimental population boundary. Basically, any take of a ferret 
within the experimental population boundary that is incidental to an 
otherwise lawful activity will not constitute ``knowing take'' for the 
purposes of this regulation. Consequently, we will investigate any 
ferret killed by an automobile to determine if the collision was 
entirely accidental, or whether there was any intention to deliberately 
strike the ferret. We will notify proper authorities and investigate 
any incident we conclude to be ``knowing take'' of ferrets.
    Issue #31: There is a conflict in terminology in the Service's use 
of the terms ``critically endangered'' and ``experimental'' when 
referring to black-footed ferrets. How can an experimental population 
designation and release to the wild be appropriate for an animal 
classified as critically endangered?
    Service Response: Paragraph 6 under the Supplementary Information 
section of this final rule provides the Service's rationale for 
designating this reintroduction as experimental, nonessential. Briefly, 
the experimental population designation relaxes certain prohibitions 
under the Endangered Species Act to assure compatibility with existing 
land uses and thus acceptability to the general public. Critically 
endangered relates to those animals remaining in captivity, and the 
absence of any known, self-sustaining populations of the ferrets in the 
wild.
    Issue #32: How will the public be brought into the 5-year review of 
the release?
    Service Response: We will re-convene local black-footed ferret 
working groups to assist in the review of specific land use proposals 
or ferret recovery actions, and determine how the implementation of 
each can be compatible. Public representation on the working groups 
will ensure the public an opportunity to provide input along with the 
agencies and other cooperators.
    Issue #33: We were asked to provide a more complete description of 
the experimental population boundary.
    Service Response: The proposed rule and this final rule provides a 
complete description of the experimental population boundary using 
township/range demarcations, county lines, and highway numbers. The 
experimental population boundary in Wyoming covers about 16 miles north 
to south, and 36 miles east to west (about 560 square miles). During 
final preparation of the release sites in Colorado or Utah, we will 
place signs to alert the public of the location of the management 
areas, experimental population boundary, and pre-release conditioning 
pen sites.
    Issue #34: A commenter stated that the Sweetwater County 
Commissioners previously requested expansion of the nonessential 
experimental boundary north to Interstate Highway 80.
    Service Response: The Service, the Wyoming Game and Fish 
Department, and the BLM briefed the Sweetwater County Commissioners 
regarding the proposal to release ferrets in Colorado and its 
implications to Wyoming on April 4, 1995. The Service presented the 
experimental boundary in this final rule to the Commissioners at that 
time. We have no record that the Sweetwater County Commissioners 
requested that an expansion of the boundary to Interstate 80, and the 
Sweetwater County Commissioners did not provide comments on the 
proposed rule. The established boundary includes all known prairie dog 
colony complexes that may be within the range of black-footed ferrets 
released in Colorado. It is unlikely that ferrets would successfully 
establish residence in any area outside this boundary, and the Wyoming 
Game and Fish Department does not consider prairie dog colonies in 
Sweetwater County suitable for the establishment of a self-sustaining 
population of ferrets. Consequently, there is no biological basis for 
extending the boundary to Interstate 80, and we have not adopted this 
suggestion.
    Issue #35: What are the effects of the proposal on private lands?
    Service Response: This experimental, nonessential designation will 
impose no additional restrictions on activities on private lands other 
than those that currently exist, but would relax the consultation 
process under section 7 of the Endangered Species Act for any activity 
requiring Federal approval. For example, prairie dog control on private 
lands will continue to be subject to the rodenticide label restrictions 
that require contact with the Service prior to their use. Killing a 
black-footed ferret on private lands, requires reporting the incident 
to the proper authorities for determination of whether the take was 
incidental or intentional. The black-footed ferret management plans 
prepared for both the Little Snake Management Area and Coyote Basin 
Primary Management Zone predict that all current lands uses on private 
lands in these areas will continue to operate following reintroduction 
of black-footed ferrets.
    Issue #36: A black-footed ferret may disperse up to 35 miles, which 
could result in overlap with future coal mining proposals.
    Service Response: (SEE ALSO #4 AND #10) We address the basic 
concerns expressed here under Supplementary Information Item 7 of this 
rule. Black-footed ferrets may travel up to 4.5 miles each day 
searching for food. A black-footed ferret raised in an indoor caged 
environment and released at Shirley Basin, Wyoming traveled about 16 
miles from its initial release site. Ferrets raised in pre-conditioning 
pens and released in Montana and South Dakota have not traveled more 
than about 6 miles from their initial release site. Therefore, we 
expect ferrets reared in outdoor pre-release conditioning pens to 
disperse considerably shorter distances than those raised in indoor 
cages.
    The experimental boundary in Wyoming includes all prairie dog 
colonies within the range of ferrets potentially released in Colorado. 
It is unlikely that ferrets would establish residence outside of the 
experimental boundary, due to the lack of suitable ferret habitat. The 
discovery of a ferret outside the experimental population boundary will 
trigger genetic testing to determine whether it is a released ferret, 
or offspring of a released ferret. If the animal is genetically 
unrelated to members of the experimental population (possibly a wild 
animal), it will become part of the captive breeding population; 
however, we will return it to the release site if genetic testing 
proves it is part of the experimental population. Any ferret found 
outside the experimental population area will be

[[Page 52835]]

fully protected by the Act pending conclusion of the genetic testing.

Effective Date Justification

    The 30-day delay between publication of this final rule and its 
effective date as provided by the Administrative Procedure Act (5 
U.S.C. 533(d)(3)) is waived. This is to allow for the timely transfer 
of suitable black-footed ferret release candidates to pens for 
acclimation and breeding purposes. The following biological 
considerations necessitate this approach. The approved reintroduction 
of captive black-footed ferrets requires transfer from indoor, captive 
breeding facilities to outdoor pre-conditioning/breeding pens in the 
recovery area. The purpose of the pens is to increase successful 
reproduction of ferrets in field situations, and increase the 
probability of the survival of ferret progeny upon their release to the 
wild. The outdoor pens expose ferrets to prairie dog burrows and local 
climatic events, which demands that they become familiar with prairie 
dog burrows, practice their predatory instincts, and adapt to local 
environmental rigors. An acclimation period of several months at the 
release site prior to the breeding period maximizes breeding and 
whelping success.
    Ferret experts have concluded that placement of breeding aged 
females into the pens at least several months prior to the breeding 
period allows adequate time to adapt to the local environment. Because 
ferrets can begin breeding in February, breeding aged ferrets require 
placement in pens no later than early November. However, approval of 
the pens requires testing pen integrity against escape by ferrets as 
well as invasion by predators. Prairie dogs and male black-footed 
ferrets are used to test for escapement, which can require 2 months. 
The pens must prevent escapement of the prairie dogs and male black-
footed ferrets prior to introduction of breeding aged females and/or 
juveniles. Delaying the effective date of the rule for 30 days 
following its publication would postpone the introduction of ferrets to 
pre-conditioning/breeding pens, which would prevent us from meeting 
local and national recovery objectives.
    The proposed rule for this designation was made available for 
public review and comment as part of the ferret reintroduction 
proposal. The 60-day comment period, combined with the public meetings 
and hearings throughout the ExPA provided sufficient opportunity for 
public discussion and debate. The rule making process was responsive to 
extensive input from the public, Ute Indian Tribe, and agencies and 
further review is unlikely to reveal new substantive issues. Because of 
the biological conditions described above, the extensive public review 
of the proposed rule, and the Record of Decision for this action, 
ferret reintroduction should begin as soon as possible after the 
publication of this rule. Therefore, due to biological considerations 
and the extensive public review process already conducted, good cause 
exists under 5 U.S.C. 553(d) for the rule to be effective immediately 
upon publication.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act of 1969 (NEPA). We have prepared an 
environmental assesssment (EA) as defined under the authority of NEPA, 
which is available from the Service Offices identified in the ADDRESSES 
section. In that EA we determined that this rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment.

Required Determinations

    The designation of a reintroduced population of a federally listed 
species as NEPs significantly reduces regulatory requirements regarding 
the take of the reintroduced species. Under NEP designations, the Act 
requires a Federal agency to confer with the Service if the agency 
determines that its actions within the NEP is likely to jeopardize the 
continued existence of the reintroduced species. However, the Act does 
not compel a Federal agency to stop a project, deny issuing a permit, 
or cease any activity. Additionally, this rule includes stipulations 
that unavoidable and unintentional take of reintroduced ferrets, when 
such take is non-negligent and incidental to an otherwise lawful 
activity, and the activity is in accordance with State laws or 
regulations, do not constitute a violation of the Act. The Colorado 
Division of Wildlife, the Utah Division of Wildlife Resources, and the 
Wyoming Game and Fish Department have endorsed the ferret 
reintroduction under a NEP designation, however, such designation will 
not require any of these state agencies to specifically manage for any 
reintroduced species.
    This final rule contains collections of information requiring the 
approval of the Office of Management and Budget (OMB) under 44 U.S.C. 
3501 et seq. A request for renewal and revision of the authorization 
for this information collection has been approved by OMB and has been 
assigned control number 1018-0095. The Service may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid Office of Management 
and Budget control number.
    This rule was not subject to review by the Office of Management and 
Budget under Executive Order 12866.
    This rule will not have an annual economic effect of $100 million 
or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required.
    This rule will not create inconsistencies with other agencies' 
actions. The Federal agencies that will be most interested in this 
rulemaking are primarily other Department of Interior bureaus (i.e., 
BLM, National Park Service). The action proposed by this rulemaking is 
consistent with the policies and guidelines of the other Interior 
bureaus. Additional coordination will be required of the other 
agencies, but they are in support of the proposal to release ferrets 
under the nonessential, experimental population (NEP) designation. 
Because of the substantial regulatory relief provided by the NEP 
designation, we believe the reintroduction of the black-footed ferret 
in the areas described will not conflict with existing human activities 
or hinder public utilization of the area.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
User fees may be imposed by the BLM for the exploration of minerals and 
grazing domestic livestock on public lands. The user fee rates for 
these activities are not influenced by the establishment of a 
population of black-footed ferrets. Some mineral exploration and 
development companies may be required to modify their operations, but 
the modifications will not significantly affect their rights for 
mineral development, extraction, or marketing.
    This rule does not raise novel legal or policy issues. The Service 
has previously designated experimental populations of black-footed 
ferrets at four other locations (in Montana, South Dakota, Arizona, and 
Wyoming), and for other species at numerous locations throughout the 
nation.
    Reintroduction of ferrets as proposed in this rulemaking would not 
have any significant effect on recreational activities in the 
experimental area. No closures or roads, trails or other recreation 
areas are expected, and only voluntary reductions in prairie dog

[[Page 52836]]

shooting activities are expected. Because present regulations require 
that oil, gas and other mineral operations within the affected area 
comply with restrictions associated with wildlife, special status plant 
species, and livestock lambing grounds, ferret reintroduction is not 
expected to cause any significant change in these activities. Current 
mining projects would proceed as planned and any conflicts with future 
projects would be worked out in the early planning stages. No changes 
in current BLM grazing allotments are expected as a result of ferret 
reintroduction, and only temporary grazing restrictions within one 
quarter mile of release cages or other equipment are expected. Because 
only voluntary participation in ferret reintroduction by private 
landowners is proposed, this rulemaking is not expected to have any 
significant impact on private activities in the affected area.
    We reviewed this rule under provisions of the Regulatory 
Flexibility Act of 1980 (5 U.S.C. 601 et seq.) to determine whether 
this reintroduction would have a significant effect on a substantial 
number of small entities, including businesses, organizations, or 
governmental jurisdictions. Because no substantial changes in economic 
activity are expected, we certify that this rule will not have a 
significant economic effect on a substantial number of small entities 
as defined under the Regulatory Flexibility Act.
    The nonessential experimental population designation will not place 
any additional requirements on any city, county, or other local 
municipalities. The site designated for release of the experimental 
population is predominantly public land administered by the BLM. Some 
affected lands are state school lands managed by Department's of 
Natural Resource agencies in their respective states. These agencies 
have expressed their desire for accomplishing the reintroduction 
through a nonessential experimental designation. Accordingly, this rule 
will not ``significantly or uniquely'' affect small governments. A 
Small Government Agency Plan is not required.
    Because this rulemaking does not require that any action be taken 
by local or state government or private entities, we have determined 
and certify pursuant to the Unfunded Mandates Act, 2, U.S.A. 1502 et 
seq., that this rulemaking will not impose a cost of $100 million or 
more in any given year on local or state governments or private 
entities, i.e., it is not a ``significant regulatory action'' under the 
Act.
    Designating reintroduced populations of federally listed species as 
NEPs significantly reduces the Act's regulatory requirements regarding 
the reintroduced listed species within the NEP. Under NEP designations, 
the Act does require a Federal agency to confer with the Service if the 
agency determines that its action within the NEP is likely to 
jeopardize the continued existence of the reintroduced species. 
However, even if an agency action totally eliminated a reintroduced 
species from a NEP and jeopardized the species' continued existence, 
the Act does not compel a Federal agency to stop a project, deny 
issuing a permit, or cease any activity. Additionally, regulatory 
relief can be provided regarding take of reintroduced species within 
NEP areas. A special rule has been developed stipulating that there 
would be no violation of the Act for unavoidable and unintentional take 
(including killing or injuring) of the reintroduced black-footed 
ferrets, when such take is non-negligent and incidental to a legal 
activity (e.g., livestock management, mineral development) and the 
activity is in accordance with State laws or regulations.
    Most of the lands within the experimental population area are 
public lands administered by the BLM. Multiple use management of these 
lands for industry and recreation will not change as a result of the 
experimental designation. Private landowners within the experimental 
population area will still be allowed to control prairie dogs, and may 
elect to have black-footed ferrets removed from their land should 
ferrets seek private lands for food and/or shelter.
    Because of the substantial regulatory relief provided by NEP 
designations, the Service does not believe the reintroduction of the 
ferrets would conflict with existing human activities or hinder public 
use of the area. In accordance with Executive Order 12630, the rule 
does not have significant takings implications. A takings implication 
assessment is not required.
    As stated above, most of the lands within the experimental 
population area are public lands, and multiple use management of these 
lands will not change to accommodate black-footed ferrets. The 
designation will not impose any new restrictions on the states of 
Colorado, Utah, or Wyoming. The Service has coordinated extensively 
with each of these states on the proposed reintroduction. Each of the 
states endorses pursuit of the NEP designation as the only feasible way 
to pursue ferret recovery in the area. In accordance with Executive 
Order 12612, the rule does not have significant Federalism effects. A 
Federalism assessment is not required.
    The Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of section 
3(a) and 3(b)(2) of Executive Order 12988, and provides a clear 
standard for compliance.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2 we have identified potential 
effects on Indian trust resources and they are addressed in this rule. 
We have met with the Ute Indian Tribe and their legal counsel to fully 
discuss the potential for the release of ferrets to impact the Ute 
Indian Tribe's ability to manage natural resources occurring on their 
reservation trust lands in Utah. The Fish and Wildlife Service has 
communicated to the Tribe that the release of ferrets will place no 
additional burden on the Tribe to maintain a population of prairie dogs 
to achieve recovery objectives for the black-footed ferret. 
Accordingly:
    a. We have consulted with the Ute Indian Tribe in Utah.
    b. We have coordinated this proposal with the Ute Indian Tribe on a 
government-to-government basis and the consultations have been open and 
candid in order for the Ute Indian Tribe to fully evaluate the 
potential impact of the rule on their trust resources.
    c. We have fully considered and addressed tribal views in the final 
rule.
    d. We have consulted with the appropriate bureaus and offices of 
the Department about the identified effects of this rule on the Ute 
Indian Tribe. The Bureau of Indian Affairs at the Regional level is 
aware of our consultation with the Ute Indian Tribe and know of the 
results.

References Cited

Anderson E., S.C. Forrest, T.W. Clark, and L. Richardson. 1986. 
Paleobiology, biogeography, and systematics of the black-footed 
ferret Mustela nigripes (Audubon and Bachman), 1851. Great Basin 
Naturalist Memoirs 8:11-62.
Forrest, S.C., T.W. Clark, L. Richardson, and T.M. Campbell III. 
1985. Black-footed ferret habitat: some management and 
reintroduction considerations. Wyoming Bureau of Land Management, 
Wildlife Technical Bulletin, No. 2. 49 pages.
Henderson, F.R., P.F. Springer, and R. Adrian. 1969. The black-
footed ferret in South Dakota. South Dakota Department of Game, Fish 
and Parks, Technical Bulletin 4:1-36.

[[Page 52837]]

U.S. Fish and Wildlife Service. 1988. Black-footed ferret recovery 
plan. U.S. Fish and Wildlife Service, Denver, Colorado. 154 pages.

Authors

    The primary authors of this rule are Robert Leachman (see FOR 
FURTHER INFORMATION CONTACT section) and Marilet A. Zablan (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

PART 17--[AMENDED]

    Accordingly, the Service amends Part 17, Subchapter B of Chapter I, 
Title 50 of the U.S. 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 existing entry for the 
``Ferret, black-footed'' under ``MAMMALS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                            Vertebrate
--------------------------------------------------                   population where                                          Critical
                                                    Historic range     endangered or       Status          When listed         habitat     Special rules
          Common name            Scientific name                        threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
            Mammals
                   *                  *                  *                  *                  *                  *                  *
Ferret, black-footed..........  Mustela nigripes.  Western U.S.A.,   Entire, except    E              1, 3, 433, 545, 546,            NA  NA
                                                    Western Canada.   where listed as                  582, 646.
                                                                      an experimental
                                                                      population.
    Do........................  ......do.........  ......do........  U.S.A. [specific  XN             433, 545, 546, 582,             NA  17.84(g)
                                                                      portions of WY,                  646.
                                                                      SD, MT, AZ, CO,
                                                                      and UT, see
                                                                      17.84(g)(9)].
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.84 by revising the text of paragraph (g) as 
follows and adding a map to follow the existing maps at the end of this 
paragraph (g):


Sec. 17.84  Special rules--vertebrates.

* * * * *
    (g) Black-footed ferret (Mustela nigripes).
    (1) The black-footed ferret populations identified in paragraph 
(g)(9)(i), (g)(9)(ii), and (g)(9)(iii), and (g)(9)(iv) of this section 
are nonessential experimental populations. We will manage each of these 
populations will be managed in accordance with their respective 
management plans.
    (2) No person may take this species in the wild in the experimental 
population area, except as provided in paragraphs (g)(3), (4), (5), and 
(10) of this section.
    (3) Any person with a valid permit issued by the U.S. Fish and 
Wildlife Service (Service) under section 17.32 may take black-footed 
ferrets in the wild in the experimental population areas.
    (4) Any employee or agent of the Service or appropriate State 
wildlife agency designated for such purposes, acting in the course of 
official duties, may take a black-footed ferret in the wild in the 
experimental population areas if such action is necessary:
    (i) For scientific purposes;
    (ii) To relocate a ferret to avoid conflict with human activities;
    (iii) To relocate a ferret that has moved outside the Little Snake 
Black-footed Ferret Management Area/Coyote Basin Primary Management 
Zone when removal is necessary to protect the ferret, or is requested 
by an affected landowner or land manager, or whose removal is requested 
pursuant to paragraph (g)(12) of this section;
    (iv) To relocate ferrets within the experimental population area to 
improve ferret survival and recovery prospects;
    (v) To relocate ferrets from the experimental population areas into 
other ferret reintroduction areas or captivity;
    (vi) To aid a sick, injured, or orphaned animal; or
    (vii) To salvage a dead specimen for scientific purposes.
    (5) A person may take a ferret in the wild within the experimental 
population areas, provided such take is incidental to and not the 
purpose of, the carrying out of an otherwise lawful activity and if 
such ferret injury or mortality was unavoidable, unintentional, and did 
not result from negligent conduct. Such conduct is not considered 
intentional or ``knowing take'' for the purposes of this regulation, 
and the Service will not take legal action for such conduct. However, 
we will refer cases of knowing take to the appropriate authorities for 
prosecution.
    (6) You must report any taking pursuant to paragraphs (g)(3), 
(4)(vi) and (vii), and (5) of this section to the appropriate Service 
Field Supervisor, who will determine the disposition of any live or 
dead specimens.
    (i) Report such taking in the Shirley Basin/Medicine Bow 
experimental population area to the Field Supervisor, Ecological 
Services, Fish and Wildlife Service, Cheyenne, Wyoming (telephone: 307/
772-2374).
    (ii) Report such taking in the Conata Basin/Badlands experimental 
population area to the Field Supervisor, Ecological Services, Fish and 
Wildlife Service, Pierre, South Dakota (telephone: [phone]).
    (iii) Report such taking in the northcentral Montana experimental 
population area to the Field Supervisor, Ecological Services, Fish and 
Wildlife Service, Helena, Montana (telephone: [phone]).

[[Page 52838]]

    (iv) Report such taking in the Aubrey Valley experimental 
population area to the Field Supervisor, Ecological Services, Fish and 
Wildlife Service, Phoenix, Arizona (telephone: [phone]).
    (v) Report such taking in the northwestern Colorado/northeastern 
Utah experimental population area to the appropriate Field Supervisor, 
Ecological Services, U.S. Fish and Wildlife Service, Lakewood, Colorado 
(telephone: [phone]), or Salt Lake City, Utah (telephone: 801/524-
5001).
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any ferret or part thereof 
from the experimental populations taken in violation of these 
regulations or in violation of applicable State fish and wildlife laws 
or regulations or the Endangered Species Act.
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to commit, any offense defined in 
paragraphs (g)(2) and (7) of this section.
    (9) The sites for reintroduction of black-footed ferrets are within 
the historical range of the species.
    (i) We consider the Shirley Basin/Medicine Bow Management Area on 
the attached map of Wyoming to be the core recovery area for this 
species in southeastern Wyoming. The boundaries of the nonessential 
experimental population are that part of Wyoming south and east of the 
North Platte River within Natrona, Carbon, and Albany Counties (see 
Wyoming map). All marked ferrets found in the wild within these 
boundaries prior to the first breeding season following the first year 
of releases constituted the nonessential experimental population during 
this period. All ferrets found in the wild within these boundaries 
during and after the first breeding season following the first year of 
releases comprise the nonessential experimental population, thereafter.
    (ii) We consider the Conata Basin/Badlands Reintroduction Area on 
the attached map for South Dakota to be the core recovery area for this 
species in southwestern South Dakota. The boundaries of the 
nonessential experimental population area occur north of State Highway 
44 and BIA Highway 2 east of the Cheyenne River and BIA Highway 41, 
south of I-90, and west of State Highway 73 within Pennington, Shannon, 
and Jackson Counties, South Dakota. Any black-footed ferret found in 
the wild within these boundaries is part of the nonessential 
experimental population after the first breeding season following the 
first year of releases of black-footed ferret in the Reintroduction 
Area. A black-footed ferret occurring outside the experimental 
population area in South Dakota is considered as endangered but may be 
captured for genetic testing. We will dispose of the captured animal in 
one of the following ways if necessary:
    (A) We may return an animal genetically related to the experimental 
population to the Reintroduction Area or to a captive facility.
    (B) Under an existing contingency plan, we will use up to nine 
black-footed ferrets genetically unrelated to the experimental 
population in the captive-breeding program. If a landowner outside the 
experimental population area wishes to retain black-footed ferrets on 
his property, we will develop a conservation agreement or easement with 
the landowner.
    (iii) We consider the Northcentral Montana Reintroduction Area 
shown on the attached map for Montana to be the core recovery area for 
this species in northcentral Montana. The boundaries of the 
nonessential experimental population are those parts of Phillips and 
Blaine Counties, Montana, described as the area bounded on the north 
beginning at the northwest corner of the Fort Belknap Indian 
Reservation on the Milk River; east following the Milk River to the 
east Phillips County line; then south along said line to the Missouri 
River; then west along the Missouri River to the west boundary of 
Phillips County; then north along said county line to the west boundary 
of Fort Belknap Indian Reservation; then further north along said 
boundary to the point of origin at the Milk River. All marked ferrets 
found in the wild within these boundaries prior to the first breeding 
season following the first year of releases constituted the 
nonessential experimental population during this period. All ferrets 
found in the wild within these boundaries during and after the first 
breeding season following the first year of releases comprise the 
nonessential experimental population thereafter. A black-footed ferret 
occurring outside the experimental area in Montana is initially 
considered as endangered but may be captured for genetic testing. We 
will dispose of the captured animal in one of the following ways if 
necessary:
    (A) We may return an animal genetically related to the experimental 
population to the reintroduction area or to a captive facility.
    (B) Under an existing contingency plan, we will use up to nine 
black-footed ferrets genetically unrelated to the experimental 
population in the captive-breeding program. If a landowner outside the 
experimental population area wishes to retain black-footed ferrets on 
his property, we will develop a conservation agreement or easement with 
the landowner.
    (iv) We consider the Aubrey Valley Experimental Population Area 
shown on the attached map for Arizona to be the core recovery area for 
this species in northwestern Arizona. The boundary of the nonessential 
experimental population area is those parts of Coconino, Mohave, and 
Yavapai Counties that include the Aubrey Valley west of the Aubrey 
Cliffs, starting from Chino Point, north along the crest of the Aubrey 
cliffs to the Supai Road (State Route 18), southwest along the Supai 
Road to Township 26 North, then west to Range 11 West, then south to 
the Hualapai Indian Reservation boundary, then east and northeast along 
the Hualapai Indian Reservation boundary to U.S. Highway Route 66; then 
southeast along Route 66 for approximately 6 km (2.3 miles) to a point 
intercepting the east boundary of section 27, Township 25 North, Range 
9 West; then south along a line to where the Atchison-Topeka Railroad 
enters Yampa Divide Canyon; then southeast along the Atchison-Topeka 
Railroad alignment to the intersection of the Range 9 West/Range 8 West 
boundary; then south to the SE corner of section 12, Township 24 North, 
Range 9 West; then southeast to SE corner section 20, Township 24 West, 
Range 8 West; then south to the SE corner section 29, Township 24 
North, Range 8 West; then southeast to the half section point on the 
east boundary line of section 33, Township 24 North, Range 8 West; then 
northeast to the SE corner of section 27, Township 24 North, Range 8 
West; then southeast to the SE corner Section 35, Township 24 North, 
Range 8 West; then southeast to the half section point on the east 
boundary line of section 12, Township 23 North, Range 8 West; then 
southeast to the SE corner of section 8, Township 23 North, Range 7 
West; then southeast to the SE corner of section 16, Township 23 North, 
Range 7 West; then east to the half section point of the north boundary 
line of section 14, Township 23 North, Range 7 West; then south to the 
half section point on the north boundary line of section 26, Township 
23 North, Range 7 West; then east along section line to route 66; then 
southeast along route 66 to the point of origin at Chino Point. Any 
black-footed ferrets found in the wild within these boundaries is part 
of the nonessential experimental population after the first breeding 
season following the first year of releases of ferrets into the

[[Page 52839]]

reintroduction area. A black-footed ferret occurring outside the 
experimental area in Arizona is initially considered as endangered but 
may be captured for genetic testing. We will dispose of the captured 
animal in one of the following ways if necessary:
    (A) We may return an animal genetically related to the experimental 
population to the reintroduction area or to a captive facility. If a 
landowner outside the experimental population area wishes to retain 
black-footed ferrets on his property, we will develop a conservation 
agreement or easement with the landowner.
    (B) Under an existing contingency plan, we will use up to nine 
black-footed ferrets genetically unrelated to the experimental 
population in the captive-breeding program. If a landowner outside the 
experimental population area wishes to retain black-footed ferrets on 
his property, we will develop a conservation agreement or easement with 
the landowner.
    (v) We consider the Little Snake Black-footed Ferret Management 
Area in Colorado and the Coyote Basin Black-footed Ferret Primary 
Management Zone in Utah as the initial recovery sites for this species 
within the Northwestern Colorado/Northeastern Utah Experimental 
Population Area (see Colorado/Utah map). The boundaries of the 
nonessential Experimental Population Area will be all of Moffat and Rio 
Blanco Counties in Colorado west of Colorado State Highway 13; all of 
Uintah and Duchesne Counties in Utah; and in Sweetwater County, 
Wyoming, the line between Range 96 and 97 West (eastern edge), Range 
102 and 103 West (western edge), and Township 14 and 15 North (northern 
edge). All marked ferrets found in the wild within these boundaries 
prior to the first breeding season following the first year of release 
will constitute the nonessential experimental population during this 
period. All ferrets found in the wild within these boundaries during 
and after the first breeding season following the first year of 
releases of ferrets into the reintroduction area will comprise the 
nonessential experimental population thereafter. A black-footed ferret 
occurring outside the Experimental Population Area is initially 
considered as endangered but may be captured for genetic testing. We 
will dispose of the captured animal in one of the following ways if 
necessary:
    (A) We may return an animal genetically related to the experimental 
population to the Reintroduction Area or to a captive facility.
    (B) Under an existing contingency plan, we will use up to nine 
black-footed ferrets genetically unrelated to the experimental 
population in the captive-breeding program. If a landowner outside the 
experimental population area wishes to retain black-footed ferrets on 
his property, we will develop a conservation agreement or easement with 
the landowner.
    (10) Monitoring the reintroduced populations will occur continually 
during the life of the project, including the use of radio telemetry 
and other remote sensing devices, as appropriate. Vaccination of all 
released animals will occur prior to release, as appropriate, to 
prevent diseases prevalent in mustelids. Any animal that is sick, 
injured, or otherwise in need of special care may be captured by 
authorized personnel of the Service or appropriate State wildlife 
agency or their agents and given appropriate care. Such an animal may 
be released back to its appropriate reintroduction area or another 
authorized site as soon as possible, unless physical or behavioral 
problems make it necessary to return the animal to captivity.
    (11) We will reevaluate the status of the experimental population 
within the first five years after the first year of release of black-
footed ferrets to determine future management needs. This review will 
take into account the reproductive success and movement patterns of the 
individuals released into the area, as well as the overall health of 
the experimental population and the prairie dog ecosystem in the above 
described areas. We will propose reclassification of the black-footed 
ferret when we meet the appropriate recovery objectives for the 
species.
    (12) We will not include a reevaluation of the ``nonessential 
experimental'' designation for these populations during our review of 
the initial five year reintroduction program. We do not foresee any 
likely situation justifying alteration of the nonessential experimental 
status of these populations. Should any such alteration prove necessary 
and it results in a substantial modification to black-footed ferret 
management on non-Federal lands, any private landowner who consented to 
the introduction of black-footed ferrets on their lands may rescind 
their consent, and at their request, we will relocate the ferrets 
pursuant to paragraph (g)(4)(iii) of this section.
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    Dated: September 22, 1998.
Stephen C. Saunders,
Acting Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 98-26096 Filed 9-30-98; 8:45 am]
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