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

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: 970/243-2778; or Mr. Edward Owens at

the Salt Lake City address above, telephone: 801/524-5001.

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.

[[Page 52826]]

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

[[Page 52827]]

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: 605/224-8693).

(iii) Report such taking in the northcentral Montana experimental

population area to the Field Supervisor, Ecological Services, Fish and

Wildlife Service, Helena, Montana (telephone: 406/449-5225).

[[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: 602/640-2720).

(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: 303/275-2370), 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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[[Page 52840]]

[GRAPHIC] [TIFF OMITTED] TR01OC98.095

[[Page 52841]]

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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