2003 Federal Register, 68 FR 26498; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: May 16, 2003 (Volume 68, Number 95)]
[Rules and Regulations]
[Page 26498-26510]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my03-14]

[[Page 26498]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI60

Endangered and Threatened Wildlife and Plants; Establishment of
Nonessential Experimental Population Status and Reintroduction of
Black-Footed Ferrets in South-Central South Dakota

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in
cooperation with the Rosebud Sioux Tribe (Tribe), the U.S. Forest
Service, and the U.S. Bureau of Indian Affairs, will reintroduce
endangered black-footed ferrets (Mustela nigripes) into south-central
South Dakota on the Rosebud Sioux Reservation. The purposes of the
reintroduction are to implement actions required for recovery of the
species and to evaluate and improve reintroduction techniques and
management applications. We may release surplus captive-raised or wild-
born black-footed ferrets annually for several years until a self-
sustaining population is established. If this reintroduction program is
successful, a wild population could be established in 5 years or less.
The Rosebud Sioux Reservation black-footed ferret population will be
established as a nonessential experimental population in accordance
with section 10(j) of the Endangered Species Act of 1973, as amended
(Act). We will manage this population under provisions of this special
rule. An environmental assessment and finding of no significant impact
have been prepared on this action.

DATES: The effective date of this rule is May 16, 2003.

ADDRESSES: You may inspect the complete file for this rule during
normal business hours at the Ecological Services Office, 420 South
Garfield Avenue, Suite 400, Pierre, South Dakota 57501, or telephone
(605) 224-8693. You must make an appointment in advance if you wish to
inspect the file.

FOR FURTHER INFORMATION CONTACT: Scott Larson or Pete Gober at the
above address, telephone (605) 224-8963, extensions 27 and 24,
respectively.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative: Congress made significant changes to the Act in
1982 with the addition of section 10(j), which provides for the
designation of specific reintroduced populations of listed species as
``experimental populations.'' Previously, we had authority to
reintroduce populations into unoccupied portions of a listed species'
historical range when doing so would foster the conservation and
recovery of the species. However, local citizens often opposed these
reintroductions because they were concerned about placement of
restrictions and prohibitions on Federal and private activities. Under
section 10(j), the Secretary of the Department of the Interior can
designate reintroduced populations established outside the species'
current range, but within its historical range, as ``experimental.'' On
the basis of the best available information, we must determine whether
an experimental population is ``essential'' or ``nonessential'' to the
continued existence of the species. Regulatory restrictions are
considerably reduced under a Nonessential Experimental Population (NEP)
designation.
Under the Act, species listed as endangered or threatened are
afforded protection primarily through the prohibitions of section 9 and
the requirements of section 7. Section 9 of the Act prohibits the take
of endangered wildlife. ``Take'' is defined by the Act as to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct. Service regulations (50 CFR
17.31) generally extend the prohibition on take to threatened wildlife.
Section 7 of the Act outlines the procedures for Federal interagency
cooperation to conserve federally listed species and protect designated
critical habitats. It mandates all Federal agencies to determine how to
use their existing authorities to further the purposes of the Act to
aid in recovering listed species. It also states that Federal agencies
will, in consultation with the Service, ensure that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. Section 7 of the Act does
not affect activities undertaken on private lands unless they are
authorized, funded, or carried out by a Federal agency.
For purposes of section 9 of the Act, a population designated as
experimental is treated as threatened regardless of the species'
designation elsewhere in its range. Through section 4(d) of the Act,
threatened designation allows us greater discretion in devising
management programs and special regulations for such a population.
Section 4(d) of the Act allows us to adopt whatever regulations are
necessary to provide for the conservation of a threatened species. In
these situations, the general regulations that extend most section 9
prohibitions to threatened species do not apply to that species, and
the special 4(d) rule contains the prohibitions and exemptions
necessary and appropriate to conserve that species. Regulations issued
under section 4(d) for NEPs are usually more compatible with routine
human activities in the reintroduction area.
For the purposes of section 7 of the Act, we treat NEPs as
threatened species when the NEP is located within a National Wildlife
Refuge or National Park, and thus section 7(a)(1) and the consultation
requirements of section 7(a)(2) of the Act apply. Section 7(a)(1)
requires all Federal agencies to use their authorities to conserve
listed species. Section 7(a)(2) requires that Federal agencies, in
consultation with the Service, ensure any actions they authorize, fund,
or carry out are not likely to jeopardize the continued existence of a
listed species or adversely modify its critical habitat. When NEPs are
located outside a National Wildlife Refuge or National Park, we treat
the population as proposed for listing and only two provisions of
section 7 apply: section 7(a)(1) and section 7(a)(4). In these
instances, NEPs provide additional flexibility because Federal agencies
are not required to consult with us under section 7(a)(2). Section
7(a)(4) requires Federal agencies to confer with the Service on actions
that are likely to jeopardize the continued existence of a proposed
species. The results of a conference are advisory in nature and do not
restrict agencies from carrying out, funding, or authorizing
activities.
Individual animals used to establish an experimental population may
come from a donor population, provided their removal will not create
adverse impacts upon the parent population, and provided appropriate
permits are issued in accordance with our regulations (50 CFR 17.22)
prior to their removal. In this case, the donor ferret population is a
captive-bred population, which was propagated with the intention of re-
establishing wild populations to achieve recovery goals. In addition,
wild progeny from other NEPs (and which also originated from captive
sources)

[[Page 26499]]

may be directly translocated to the reintroduction site.
2. Biological: The black-footed ferret is a member of the Mustelid
or weasel family; 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 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,
updated 1974; 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 in
association with black-tailed prairie dog (Cynomys ludovicianus),
white-tailed prairie dog (Cynomys leucurus), and Gunnison's prairie dog
(Cynomys gunnisoni) towns (Anderson et al., 1986).
Significant reductions in both prairie dog numbers and distribution
occurred during the last century due to widespread poisoning of prairie
dogs, the conversion of native prairie to farmland, and outbreaks of
sylvatic plague, particularly in the southern portions of the ranges of
several species of prairie dog in North America. Sylvatic plague
arrived from Asia in approximately 1900 (Eskey and Haas, 1940). It is
an exotic disease foreign to the evolutionary history of prairie dogs,
which have little or no immunity to it. Black-footed ferrets also are
highly susceptible to sylvatic plague (Williams et al., 1991 and
Williams et al., 1994). This severe reduction in the availability of
their principal prey species, in combination with other factors such as
secondary poisoning from toxicants ingested by prairie dogs, resulted
in the near extinction of the black-footed ferret in the wild by the
early 1970s (U.S. Fish and Wildlife Service, 1988).
In 1974, a remnant wild population of ferrets in South Dakota,
originally discovered in 1964, abruptly disappeared (Henderson et al.,
1969, updated 1974). As a result, we believed the species to be
extinct. However, in 1981, a small population was discovered near
Meeteetse, Wyoming (Schroeder and Martin, 1982). In 1985-86, the
Meeteetse population declined to only 18 animals due to an outbreak of
sylvatic plague and canine distemper (U.S. Fish and Wildlife Service,
1988). 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, captive-breeding efforts have
been highly successful and have facilitated ferret reintroductions over
a broad area of 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
six captive-breeding facilities throughout the United States and
Canada, with a small number on display for educational purposes at
several facilities. Also, 65 to 90 ferrets are located at several
field-based captive-breeding sites in Arizona, Colorado, Montana, and
New Mexico.
3. Recovery Goals/Objectives: The recovery plan for the black-
footed ferret (U.S. Fish and Wildlife Service, 1988) contains the
following recovery objectives for reclassification of the species from
endangered to threatened:
(a) Increasing the captive population of ferrets to 200 breeding
adults by 1991 (achieved);
(b) Establishing a prebreeding 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 (ongoing); and,
(c) Encouraging the widest possible distribution of reintroduced
animals throughout their historical range (ongoing).
Although several reintroduction efforts have occurred throughout
the ferret's range, populations may have become self-sustaining at only
one site in South Dakota (Lockhart, Black-footed Ferret Coordinator,
pers. comm. 2002).
We can reclassify the black-footed ferret from endangered to
threatened status when the recovery objectives listed above have been
achieved, assuming that the mortality rate of established populations
remains at or below a rate at which new populations become established
or increase. We have been successful in rearing black-footed ferrets in
captivity, and, in 1997, we reached captive-breeding program
objectives.
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.
Additional breeding centers were added later, and presently there are
six separate subpopulations in captivity. Current recovery efforts
emphasize the reintroduction of animals back into the wild from the
captive source stock. Surplus individuals produced in captivity are now
available for use in reintroduction areas.
4. Reintroduction Sites: The Service, in cooperation with western
State and Federal agencies, Tribal representatives, and conservation
groups, evaluates potential black-footed ferret reintroduction sites
and has previously initiated ferret reintroduction projects at several
sites within the historical range of the black-footed ferret. The first
reintroduction project occurred in Wyoming in 1991, and subsequent
efforts have taken place in South Dakota and Montana in 1994, Arizona
in 1996, a second effort in Montana in 1997, Colorado/Utah in 1999, a
second site in South Dakota in 2000, and Mexico in 2001. The Service
and the Black-footed Ferret Recovery Implementation Team (comprising 27
State and Federal agencies, Native American tribes, and conservation
organizations) have identified the Rosebud Sioux Reservation
(Reservation) as a high-priority black-footed ferret reintroduction
site due to its extensive black-tailed prairie dog habitat and the
absence of sylvatic plague (Black-footed Ferret Recovery Implementation
Team, 2000).
In the early 1990s, the Bureau of Indian Affairs (1995) estimated
the acreage of prairie dog colonies on Rosebud Tribal Trust lands at
18,000 hectares (ha) (45,000 acres (ac)). In the mid-1990s, the Tribe
evaluated a black-footed ferret reintroduction effort and completed
some of the activities (i.e., habitat evaluations) necessary to begin
such reintroduction efforts. In 2001, the Tribe began additional
activities to work toward ferret reintroduction and has worked with the
Service to gather information necessary to establish an NEP designation
for any ferret reintroductions that may occur.
(a.) Rosebud Sioux Reservation Experimental Population
Reintroduction Area: The area designated as the Rosebud Sioux
Reservation Black-footed Ferret Experimental Population Area
(Experimental Population Area) overlays all of Gregory, Mellette, Todd,
and Tripp Counties in South Dakota. Any black-footed ferret found
within these four counties will be considered part of an NEP. Within
the Experimental Population Area, the primary

[[Page 26500]]

reintroduction area will be in large black-tailed prairie dog complexes
located in Todd County near the town of Parmelee. The Town of Rosebud
is approximately 10-air miles away and is the location of the Rosebud
Sioux Tribal offices. Rosebud is approximately 160 kilometers (100
miles) south of Pierre, the capital of South Dakota.
The Experimental Population Area supports at least two large
complexes of black-tailed prairie dog colonies located within the four-
county area. These counties encompass approximately 1,391,862 ha
(3,437,900 ac). Approximately 26 percent or 356,411 ha (880,336 ac) of
the Experimental Population Area is Tribal and Allotted Trust lands of
the Rosebud Sioux Tribe. The majority of this Tribal and Allotted Trust
land is native rangeland used for grazing.
Approximately 70 percent of the land within the Experimental
Population Area is owned by private landowners, although less than 20
percent of the land in the primary reintroduction area is privately
owned. No ferrets will be released on private lands. Designating
reintroduced ferrets as an NEP should minimize potential issues that
may arise with a reintroduction in the vicinity of private lands. The
Service, Tribe, and other cooperators agree that, if ferrets disperse
onto private lands, program officials will capture and translocate the
ferrets back to Tribal lands if requested by the landowner or if
necessary for the protection of the ferrets. Any activity needing
access to private lands will be conducted only with the permission of
the landowner.
Black-footed ferret dispersal to and occupation of areas outside of
the Experimental Population Area is unlikely to occur toward the east,
north, and south due to the large size of the Experimental Population
Area, the absence of suitable nearby habitat (i.e., large contiguous
prairie dog colonies), cropland barriers (e.g., expansive cultivation
over the eastern portion of the Experimental Population Area), and
physical barriers (e.g., the Missouri River to the east). Any expansion
westerly from the reintroduction site will be handled by recapturing
ferrets, upon request by a landowner, and bringing them into
Experimental Population Area or handled through future cooperative
efforts with the Pine Ridge Indian Reservation. The Tribe estimates a
minimum of approximately 6,000 ha (15,000 ac) of black-tailed prairie
dog colonies are potentially available to black-footed ferrets in a
localized area in northwestern Todd County and could support over 150
ferret families (characterized as an adult female, 3 kits, and one-half
adult male; i.e., 1 adult male for every 2 adult females) (Biggins et
al., 1993). Large, contiguous prairie dog colonies and the absence of
physical barriers between prairie dog colonies in this portion of the
Reservation (the primary ferret release area) should facilitate ferret
distribution throughout this complex.
(b.) Primary Reintroduction Area: The primary reintroduction area
within the Experimental Population Area will occur on prairie dog
colonies near Parmelee, in northwestern Todd County. The last remaining
population of ferrets in South Dakota was known to exist in this area
and adjacent Mellette County until the early 1970s (Henderson et al.,
1969, updated 1974). This population was studied and monitored
extensively until it disappeared from the wild by 1974 (Henderson et
al., 1969, updated 1974). During monitoring efforts of this ferret
population in the 1960s, researchers located eight road-killed ferrets
during their years of work (Hillman and Linder, 1973). No road-killed
ferrets have been turned in or noted from that area since the
population was believed extirpated in the early 1970s. There have been
many ferret surveys conducted in this area in the 1980s and 1990s with
no ferrets being located (Hanebury, 1988; Bureau of Indian Affairs,
1995). The Tribe conducted additional ferret surveys in 2002 and did
not locate any ferrets (Lonewolf, Rosebud Game Fish and Parks, pers.
comm. 2002).
Black-footed ferrets will be released only if biological conditions
are suitable and meet the management framework developed by the Tribe,
in cooperation with the Bureau of Indian Affairs, the Service, and
landowners/land managers. The Service will reevaluate ferret
reintroduction efforts in the Experimental Population Area should any
of the following conditions occur:
(i) Failure to maintain sufficient habitat on specific
reintroduction areas to support at least 30 breeding adults after 5
years.
(ii) Failure to maintain sufficient prairie dog habitat in the
primary reintroduction area as available in 2002.
(iii) A wild ferret population is found within the Experimental
Population Area 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 Arizona, Colorado/
Utah, Montana, South Dakota, Wyoming, and Mexico. Consequently, the
discovery of a black-footed ferret population at the Experimental
Population Area prior to the reintroduction would confirm the presence
of a new population and would prevent designation of an experimental
population for the area.
(iv) Discovery in any animal on or near the reintroduction area 6
months prior to the scheduled release of an active case of canine
distemper or any other disease contagious to black-footed ferrets that
the cooperators believe may compromise the reintroduction.
(v) Fewer than 20 captive black-footed ferrets are available for
the first release.
(vi) Funding is not available to implement the reintroduction phase
of the project on the Reservation.
(vii) Land ownership changes significantly or cooperators withdraw
from the project.
All the above conditions will be based on information routinely
collected by us or the Tribe (see ``Paperwork Reduction Act'' under the
REQUIRED DETERMINATIONS section).
5. Reintroduction Procedures: In conformance with standard black-
footed ferret reintroduction protocol, no fewer than 20 captive-raised
or wild-translocated black-footed ferrets will be released in the
Experimental Population Area in the first year of the program, and 20
or more animals will be released annually for the next 2 to 4 years. We
anticipate releasing 50 or more ferrets in the first year and believe a
self-sustaining wild population could be established on the Reservation
within 5 years. Released ferrets will be excess to the needs of the
captive-breeding program and their use will not affect the genetic
diversity of the captive ferret population (ferrets used for
reintroduction efforts can be replaced through captive breeding). In
the future, it may be necessary to interchange ferrets from
established, reintroduced populations to enhance the genetic diversity
of the population on the Experimental Population Area.
Recent studies (Biggins et al., 1998; Vargas et al., 1998) have
documented the importance of outdoor ``preconditioning'' experience on
captive-reared ferrets prior to release in the wild. Ferrets exposed to
natural prairie dog burrows in outdoor pens and natural prey prior to
release survive in the wild at significantly higher rates than do cage-
reared, non-preconditioned ferrets. At a minimum, all captive-reared
ferrets released within the Experimental Population Area will receive
adequate pre-conditioning treatments at existing pen facilities in
South Dakota or other western States. In addition, we may translocate
wild-born ferrets (from other NEPs with self-sustaining populations of
ferrets) to the Experimental Population Area.

[[Page 26501]]

The Tribe will develop specific reintroduction plans and submit
them in a proposal to the Service as part of an established, annual
black-footed ferret allocation process. Ferret reintroduction
cooperators submit proposals by mid-March of each year, and the Service
makes preliminary allocation decisions (numbers of ferrets provided to
specific projects) by May. Proposals submitted to the Service include
updated information on habitat, disease, project/ferret status,
proposed reintroduction and monitoring methods, and predator
management. In this manner, the Service and reintroduction cooperators
evaluate the success of the prior year's efforts and apply current
knowledge to various aspects of reintroduction efforts, thereby
providing greater assurance of long-range reintroduction success.
We will transport ferrets to identified reintroduction areas within
the Experimental Population Area and release them directly from
transport cages into prairie dog burrows. Depending on the availability
of suitable vaccine, we will vaccinate released animals against certain
diseases (especially canine distemper) and take appropriate measures to
reduce predation from coyotes, badgers, and raptors, where warranted.
All ferrets we release will be marked with passive integrated
transponder tags (PIT tags), and we may promote radio-telemetry studies
to document ferret 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 released ferrets could die during the first year of
release. Mortality is usually highest during the first month following
release. In the first year of the program, a realistic goal is to have
at least 25 percent of the animals survive the first winter. The goal
of the Reservation reintroduction project is to establish a free-
ranging population of at least 30 adults within the Experimental
Population Area within 5 years of release. At the release site,
population demographics and potential sources of mortality will be
monitored on an annual basis (for up to 5 years). We do not intend to
change the nonessential designation for this experimental population
unless we deem this reintroduction a failure or the black-footed ferret
is recovered in the wild.
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 six separate subpopulations. As a result,
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 is
240 adult ferrets maintained in the captive-breeding population.
Animals selected for reintroduction purposes are surplus to the captive
population. Hence, any use of animals for reintroduction efforts will
not affect the overall genetic diversity of the species.
(c) Captive-breeding can replace any ferrets lost during this
reintroduction attempt. Juvenile ferrets produced in excess of the
numbers needed to maintain the captive-breeding population are
available for reintroduction.
This reintroduction will be the ninth release of ferrets back into
the wild. The other experimental populations occur in Wyoming,
southwestern South Dakota, north-central Montana (with two separate
reintroduction efforts), Arizona, Colorado/Utah (a single
reintroduction area that overlays both States), and north-central South
Dakota. A population of ferrets also has been established in Mexico.
Reintroductions are necessary to further the recovery of this species.
The NEP designation alleviates landowner concerns about possible land
use restrictions. This nonessential experimental designation provides a
flexible management framework for protecting and recovering black-
footed ferrets while ensuring that the daily activities of landowners
are unaffected.
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 the mid-1980s,
black-footed ferret surveys have been conducted in the Experimental
Population Area or close by, and no wild ferrets have been located
(Hanebury, 1988; Bureau of Indian Affairs, 1995; Lonewolf, Rosebud Game
Fish and Parks, pers. comm. 2002). Over 120,000 ha (300,000 ac) of
prairie dog colonies were surveyed for black-footed ferrets in the mid-
1980s during a prairie dog control effort on the Oglala Sioux Tribe's
Pine Ridge Indian Reservation (Superintendent Memorandum, 1989). No
ferrets were located. In addition to these surveys, the Tribe and
others have spent many hours surveying prairie dog colonies at the
primary reintroduction site (Hanebury, 1988; Bureau of Indian Affairs,
1995). No ferrets or signs of ferrets (e.g., skulls, feces, trenches)
were located. Therefore, we conclude that wild ferrets are no longer
present in the Experimental Population Area, and that this
reintroduction will not overlap with any wild population.
All released ferrets and their offspring should remain in the
Experimental Population Area due to the presence of prime habitat
(i.e., lands occupied by prairie dog colonies) and surrounding
geographic barriers. We will capture any ferret that leaves the
Experimental Population Area, attempt to identify its origin, and
either return it to the release site, translocate it to another site,
or place it in captivity. If a ferret leaves the primary reintroduction
area but remains within the Experimental Population Area and occupies
private property, the landowner can request its removal. Ferrets will
remain on private lands only when the landowner does not object to
their presence there.
We will mark all released ferrets and will attempt to determine the
source of any unmarked animals found. Any ferret found outside the
Experimental Population Area is considered endangered, as provided
under the Act. We will undertake efforts to confirm whether any ferret
found outside the Experimental Population Area originated from captive
stock. If the animal is unrelated to members of this or other
experimental populations (i.e., it is from non-captive stock), we will
place it in captivity as part of the breeding population to improve the
overall genetic diversity of the captive population. Existing
contingency plans allow for the capture and retention of up to nine
ferrets shown not to be from any captive stock. In the highly unlikely
event that a ferret from captive stock is found outside the
Experimental Population Area, and if landowner permission is granted,
we will move the ferret back to habitats that support the primary
population(s) of ferrets.
8. Management: This reintroduction is undertaken in cooperation
with the Rosebud Sioux Tribe, the Bureau of Indian Affairs, and the
Forest Service in accordance with the ``Cooperative Management Plan for
Black-footed Ferrets, Rosebud Sioux Reservation.'' Copies of the
Cooperative Management Plan may be obtained from the Rosebud Sioux
Tribe, Game, Fish and Parks Department, P.O. Box 430, Rosebud, South
Dakota 57570. In the future, we will evaluate whether other black-
footed ferret reintroductions are feasible within the Experimental
Population Area. Cooperating Tribes, agencies, and private landowners
will be involved in the selection of any additional sites.

[[Page 26502]]

Management considerations of this reintroduction project include:
(a) Monitoring: Several monitoring efforts will occur during the
first 5 years of the program. We will annually monitor prairie dog
distribution and numbers, and the occurrence of sylvatic plague.
Testing resident carnivores (e.g., coyotes) for canine distemper will
begin prior to the first ferret release and continue each year. We will
monitor released ferrets and their offspring annually using spotlight
surveys, snowtracking, other visual survey techniques, and possibly
radio-telemetry on some individuals. The surveys will incorporate
methods to monitor breeding success and long-term survival rates.
Through public outreach programs, we will inform the public and
other appropriate State and Federal agencies about the presence of
ferrets in the Experimental Population Area and the handling of any
sick or injured ferrets. To meet our responsibilities to treat the
Tribe on a Government-to-Government basis, we will request that the
Tribe inform Tribal members of the presence of ferrets on Reservation
lands and the proper handling of any sick or injured ferrets that are
found. The Tribe will serve as the primary point of contact to report
any injured or dead ferrets. Reports of injured or dead ferrets also
must be provided to the Service Field Supervisor (see ADDRESSES
section). It is important that we determine the cause of death for any
ferret carcass found. Therefore, we request that discovered ferret
carcasses not be disturbed but reported as soon as possible to
appropriate Tribal and Service offices.
(b) Disease: The presence of canine distemper in any mammal on or
near the reintroduction site will cause us to reevaluate the
reintroduction program. Prior to releasing ferrets, we will establish
the presence or absence of canine distemper in the release area by
collecting at least 20 coyotes (and possibly other carnivores). Sampled
predators will be tested for canine distemper and other diseases.
We will attempt to limit the spread of distemper by discouraging
people from bringing unvaccinated pets into core ferret release areas.
Any dead mammal or any unusual behavior observed in animals found
within the area should be reported to us (see ADDRESSES section).
Efforts are under way to develop an effective canine distemper vaccine
for black-footed ferrets. Routine sampling for sylvatic plague in
prairie dog towns will take place before and during the reintroduction
effort, and annually thereafter.
(c) Genetics: Ferrets selected for reintroduction are excess to the
needs of the captive population. Experimental populations of ferrets
are usually less genetically diverse than overall captive populations.
Selecting and reestablishing breeding ferrets that compensate for any
genetic biases in earlier releases may correct this disparity. The
ultimate goal is to establish wild ferret populations with the maximum
genetic diversity that is possible from the founder ferrets. The
eventual interchange of ferrets between established populations found
elsewhere in the western United States will ensure that genetic
diversity is maintained to the extent possible.
(d) Prairie Dog Management: We will work with the Tribe, affected
landowners, and other Federal and State agencies to resolve any
management conflicts in order to maintain: (1) Sufficient prairie dog
acreage and density to support no less than 30 adult black-footed
ferrets; and (2) suitable prairie dog habitat on core release areas at
or above 2002 survey levels.
(e) Mortality: We will only reintroduce ferrets that are surplus to
the captive-breeding program. Predator control, prairie dog management,
vaccination, ferret preconditioning, and improved release methods
should reduce mortality. Public education will help reduce potential
sources of human-caused 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 such as recreation, livestock grazing, and other activities
that are in accordance with Federal, Tribal, State, and local laws and
regulations. A person may take a ferret within the Experimental
Population Area provided that the take is unintentional and was not due
to negligent conduct. Such conduct will not constitute ``knowing
take'', and we will not pursue legal action. However, when we have
evidence of knowing (i.e., intentional) take of a ferret, we will refer
matters to the appropriate authorities for prosecution. Any take of a
black-footed ferret, whether incidental or not, must be reported to the
local Service Field Supervisor (see ADDRESSES section) and should be
reported to the Tribe as primary point of contact for this NEP. We
expect levels of incidental take to be low since the reintroduction is
compatible with existing land-use practices for the area.
Based on studies of wild black-footed ferrets at Meeteetse,
Wyoming, and other places, black-footed ferrets can be killed by motor
vehicles and dogs (Hillman and Linder, 1973; Schroeder and Martin,
1982). We expect a rate of mortality similar to what was documented at
Meeteetse, and, therefore, we estimate a human-related annual mortality
rate of about 12 percent or less of all reintroduced ferrets and their
offspring. If this level is exceeded in any given year, we will develop
and implement measures to reduce the level of mortality.
(f) Special Handling: Service employees and authorized agents
acting on their behalf may handle black-footed ferrets for scientific
purposes; to relocate ferrets to avoid conflict with human activities;
for recovery purposes; to relocate ferrets to other reintroduction
sites; to aid sick, injured, and orphaned ferrets; and to salvage dead
ferrets. We will return to captivity any ferret we determine to be
unfit to remain in the wild. We also will determine the disposition of
all sick, injured, orphaned, and dead ferrets.
(g) Coordination with Landowners and Land Managers: The Service and
cooperators identified issues and concerns associated with this ferret
reintroduction before the development of the proposed rule. The
reintroduction also has been discussed with potentially affected State
agencies and landowners within the release area. Affected Tribes, State
agencies, landowners, and land managers have indicated support for the
reintroduction if ferrets released in the Experimental Population Area
are established as an NEP and if land use activities in the
Experimental Population Area are not constrained without the consent of
affected landowners.
(h) Potential for Conflict with Grazing and Recreational
Activities: We do not expect conflicts between livestock grazing and
ferret management. Grazing and prairie dog management on private lands
within the Experimental Population Area will continue without
additional restriction during implementation of the ferret recovery
activities. With proper management, we do not expect adverse impacts to
ferrets from hunting, prairie dog shooting, prairie dog control, and
trapping of furbearers or predators in the Experimental Population
Area. If proposed prairie dog shooting or control locally may affect
the ferret's prey base within the primary release area, State, Tribal,
and Federal biologists will determine whether ferrets could be impacted
and, if necessary, take steps to avoid such impacts. However, because
of the NEP designation, these steps will be voluntary measures since
any recommendations by biologists will be advisory only. If private
activities impede the establishment of ferrets, we

[[Page 26503]]

will work closely with the Tribe and landowners to suggest alternative
procedures to minimize conflicts.
(i) Protection of Black-footed Ferrets: We will release ferrets in
a manner that provides short-term protection from natural (e.g.,
predators, disease, lack of prey base) and human-related sources of
mortality. Improved release methods, vaccination, predator control, and
management of prairie dog populations should help reduce natural
mortality. Releasing ferrets in areas with little human activity and
development will minimize human-related sources of mortality. We will
work with the Tribe and landowners to help avoid certain activities
that could impair ferret recovery.
(j) Public Awareness and Cooperation: We will inform the general
public of the importance of this reintroduction project in the overall
recovery of the black-footed ferret. The designation of the NEP for the
Reservation and adjacent areas will provide greater flexibility in the
management of the reintroduced ferrets. The NEP designation is
necessary to secure needed cooperation of the Tribe, landowners,
agencies, and other interests in the affected area.
Based on the above information, and using the best scientific and
commercial data available (in accordance with 50 CFR 17.81), the
Service finds that releasing black-footed ferrets into the Experimental
Population Area will further the conservation of the species.

Previous Federal Action

The proposal to designate a NEP in south-central South Dakota was
published in the Federal Register on September 11, 2002 (67 FR 57558)
concurrent with a notice of a public hearing on September 26, 2002 at
the Multi-Cultural Center in Mission, South Dakota. Informational
meetings regarding the Rosebud ferret reintroduction effort were held
on August 13, 15, and 16, 2002, at He Dog, Parmelee, and Rosebud
Communities in Todd County, South Dakota and on August 29, 2002, at the
Rosebud Casino located on the Rosebud Sioux Reservation. In addition,
we have held numerous meetings with the various Tribal Council members
and other interested parties throughout this rulemaking process.

Peer Review

In accordance with our policy on peer review published on July 1,
1994 (59 FR 34270), Interagency Cooperative Policy on Peer Review (Peer
Review Policy), we requested the expert opinions of independent
specialists regarding pertinent scientific or commercial data and
assumptions relating to supportive biological and ecological
information for this NEP rule. Reviewers were asked to review the
proposed rule and the supporting data, to point out any mistakes in our
data or analysis, and to identify any relevant data that we might have
overlooked. We did not received any requests for substantive changes
from these reviewers, but we did receive comments that the proposal had
merit and recommendations of support.

Summary of Comments and Recommendations

The September 11, 2002, 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 the public hearing on the proposal were published in South
Dakota newspapers and broadcast on local radio stations in the
reintroduction area. These included the Todd County Tribune in August
and September 2002, and KINI radio announcements in August 2002.
The Service also mailed the proposed rule to 29 people representing
individuals; State, Federal, and local governments; corporations; and
nongovernmental organizations affiliated with environmental, grazing,
and recreational interests in South Dakota. This mailing list was from
previous meetings and open houses we conducted for other ferret
reintroduction efforts in South Dakota. A total of seven written
comments were received during the comment period.
In addition, we received seven comment letters prior to publication
of the proposed rule. These were mainly letters encouraging the Service
and the Tribe to proceed with a reintroduction effort on the Rosebud
Reservation. All seven comment letters received prior to the
publication of the proposed rule supported the reintroduction effort.
Of the seven comment letters received during the comment period, two
were opposed to the reintroduction efforts, three expressed concerns
about the process of designating a 10(j) area and/or about prairie dogs
and various control options, and two commenters supported the Rosebud
reintroduction effort.
As mentioned above in ``Previous Federal Actions,'' we also hosted
informational meetings and a public hearing to explain this rulemaking.
At the informational meetings, most participants were not supportive of
a ferret reintroduction effort. At the public hearing conducted a few
weeks after the informational meetings, the Tribe was able to discuss
their entire Prairie Management Plan, of which the ferret
reintroduction is one component. Many of the concerns expressed at the
informational meetings, such as management of prairie dogs, loss of
revenue from prairie dogs, and range improvements, are addressed in the
Rosebud Prairie Management Plan. Consequently, attendees at the public
hearing voiced few comments against the ferret reintroduction. However,
it must be noted that very few (five) people provided comments at the
public hearing. Most of the attendees asked questions and left without
providing verbal or written comments during the public hearing. 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 loss of revenue associated
with prairie dog colonies, and the concern that the Service may change
the NEP designation in the future. The following summary addresses the
written and verbal comments received during the informational meetings,
public hearing, and comment period. Our response to each issue is given
below.
Issue 1: Some commenters were concerned that the Service will
change the NEP designation in the future.
Service Response: As stated under ``5. Reintroduction Procedures''
in the SUPPLEMENTARY INFORMATION section of this final rule, we do not
expect to change the designation unless the reintroduction effort fails
or the species recovers. Presently, there are no proposals by the
Service, or any requests on the part of other agencies or
nongovernmental organizations, to amend this or any of the prior
designations. Consequently, we anticipate that the NEP designation for
south-central South Dakota will continue in the future. If the release
fails, we may abandon the NEP designation because such a designation is
unnecessary given the absence of the species in the area. Success under
an NEP designation will 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 an NEP designation, then we will have no cause to increase

[[Page 26504]]

the degree of protection allowed under the Act. In any case, making any
change to the NEP designation will require a new proposed rule, a
public comment period, public meetings, National Environmental Policy
Act compliance, and other documentation prior to publication of a final
rule to change or abandon the designation.
Issue 2: Some commenters raised concerns that 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 (Forrest et al., 1985). Ferrets are
not known to establish residence away from active prairie dog colonies
(Henderson et al., 1996 updated 1974; Hillman and Linder, 1973). 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 Rosebud Experimental Population Area encompasses sufficient prairie
dog colonies believed to be necessary 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 Area. Contingencies stated earlier under ``7.
Location of Reintroduced Population'' of the SUPPLEMENTARY INFORMATION
section in this final rule allow for capture and return of ferrets to
the Experimental Population Area, should this occur.
Issue 3: Some commenters expressed their opinion that releases
should only occur on Rosebud Trust lands or lands of individuals who
are cooperating with the Rosebud Sioux Tribe.
Service Response: Black-footed ferrets will only be released on
Rosebud Trust lands and deeded land of those individuals who choose to
cooperate with the Rosebud Sioux Tribe in this reintroduction.
Issue 4: Some commenters suggested that Gregory and Tripp Counties
should not be included as part of the Experimental Population Area.
Service Response: The primary reintroduction area for ferrets in
the Rosebud Experimental Population Area will occur in Todd County.
Including Gregory, Mellette, and Tripp Counties in the Experimental
Population Area only means that, if a ferret were to be located in
those counties, it will be considered part of the NEP. The Tribe also
has significant acreages of Trust land in those counties, but there is
no intent to reintroduce ferrets in those counties. Including those
counties will block-clear the area for prairie dog control purposes as
well. Congress amended the Endangered Species Act to incorporate
section 10(j) to enhance the opportunity for release of federally
listed species on private lands. However, we believe that including
most of Rosebud Trust lands within the Experimental Population Area
will provide the flexibility for management of ferrets sought by the
Tribe and the Service. The number of prairie dog colonies in Gregory
and Tripp Counties is far smaller than in the proposed reintroduction
site, and ferrets are not expected to inhabit those counties.
Issue 5: Some commenters expressed concern that the process has
proceeded too fast and more comment time is needed.
Service Response: The Service and the Rosebud Sioux Tribe have been
discussing ferret reintroduction on the Rosebud Reservation since 1996.
Considerable progress was made toward that effort and Tribal
resolutions were passed at that time, but ultimately the Tribe chose
not to proceed. In 2001, the Tribe again expressed an interest and, in
2002, asked the Service to complete the process for an NEP designation.
The Service has proceeded accordingly and will continue to follow the
Tribal Council direction as to whether to proceed with reintroduction
efforts. The ferret reintroduction effort will be managed and
undertaken by the Rosebud Game, Fish, and Parks Department.
Issue 6: Some commenters stated that black-footed ferrets are not
native to this area.
Service Response: The last remaining population of wild black-
footed ferrets in South Dakota was known to exist in this area and
adjacent Mellette County until the early 1970s (Henderson et al., 1969,
updated 1974). The Service and Tribe believe that black-footed ferrets
are native to the Rosebud Reservation.
Issue 7: Some commenters state their concern that the proposed rule
gives biologists too much authority to change plans and take steps as
they deem necessary to avoid impacts to ferrets from activities that
may impact prairie dogs.
Service Response: While biologists from different entities (e.g.,
Service, Rosebud Sioux Tribe, Forest Service) may assist with this
reintroduction effort, any comments from a biologist on effects of
human activities on private lands that may affect the reintroduced
ferrets are advisory in nature under this NEP designation. Prairie dog
control on deeded land will remain with the landowners to be managed in
compliance with State rules and other applicable Federal and local
laws, while prairie dog control on Tribal lands will remain under the
authority of the Rosebud Sioux Tribe. Landowners within the
Experimental Population Area will still be allowed to conduct lawful
control of prairie dogs. We do not anticipate any additional
restrictions on grazing and prairie dog management on private lands
within the Experimental Population Area during implementation of the
ferret recovery activities.
Issue 8: Some commenters raised concern that this rule will have a
substantial impact on private land and private property rights.
Service Response: Using section 10(j) of the Act to designate a
reintroduced population of black-footed ferret as an NEP removes most
regulatory burdens that might otherwise be associated with
reintroduction of an endangered species. The remaining restrictions are
related to intentional or negligent take of ferrets. For instance,
deliberately shooting a ferret is a prohibited activity, but prairie
dog control actions are not prohibited. In addition, any activity
needing access to private lands will be conducted only with the
permission of the landowner.
Issue 9: Some commenters suggested that the black-footed ferret
should be delisted under the Act after a viable population is
established and confined to Badlands National Park.
Service Response: At this time, the recovery goals for completely
removing the species from the protections of the Act are not defined,
but recovery of this species will depend on more than viable
populations of ferrets at Badlands National Park or other National
Parks. The Black-footed Ferret Recovery Plan (U.S. Fish and Wildlife
Service, 1988) lists the requirements for downlisting the species from
endangered to threatened, including ``encouraging the widest possible
distribution of reintroduced animals throughout their historical
range.'' It is imperative that sites outside of the few National Parks
with suitable prairie habitat are used to ensure the widest
distribution of this species across its historic habitat and to avoid
the possibility of a catastrophic event devastating the species once
again.
Issue 10: Some commenters raised concerns that reintroduced ferrets
may carry diseases.

[[Page 26505]]

Service Response: Under 8(b) ``Disease'' of the SUPPLEMENTARY
INFORMATION section of this final rule, we address the implications of
disease to the success of the actions under this rule. Management plans
for ferret reintroductions in South Dakota also have contingencies
developed relating to disease management. These contingencies include:
Vaccinating all black-footed ferrets prior to release into 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, and encouraging routine vaccination of dogs.
Management plans also call for continued monitoring of prairie dog
populations and certain predators to determine if various disease
outbreaks are occurring. It is the Service and Tribe's intent to avoid
any disease outbreaks.
Issue 11: Commenters also expressed concern that prairie dog
colonies on Tribal Trust lands could result in less revenue generated
from grazing receipts for the Tribe and Allottees.
Service Response: The Rosebud Prairie Management Plan proposes to
offset the loss of revenue to the Tribe and Allottees by making a
payment to those entities with prairie dog colonies on Tribal Trust
Lands. The efforts to develop a payment to offset revenue loss from
prairie dogs was developed in response to comments received at
informational meetings and incorporated into the Rosebud Prairie
Management Plan.
Issue 12: Other commenters voiced concern that an incentive payment
for prairie dogs might make individuals uninterested in prairie dog
control.
Service Response: Any payments for prairie dog acreage will be at
the discretion of the Rosebud Sioux Tribe.
Issue 13: Some commenters mentioned that prairie dog control and
management is needed before reintroducing ferrets on Rosebud
Reservation.
Service Response: The Rosebud Prairie Management Plan will actively
manage the existing prairie dog population on Trust lands including
prairie dog control and range improvements. Ferret reintroduction will
not affect the ability to control prairie dogs in the counties
designated as part of the Experimental Population Area.
Issue 14: Some commenters asked what the penalties are for killing
black-footed ferrets while driving cars or conducting other activities
in the Experimental Population Area.
Service Response: Section 8.(e) ``Mortality'' of this final rule
addresses the issue of incidental take of black-footed ferrets within
the Experimental Population Area. 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 or by other actions to determine if the
death was entirely accidental, or whether there was any intention to
deliberately kill the ferret. If the ferret was killed unintentionally
and reasonable care was given to avoid the ferret, there will be no
penalty for killing of the ferret. All ferret deaths must be reported
(see ADDRESSES section) so that cause of death can be determined and to
assist the Tribe in maintenance of its records on the status of the
reintroduced population.
Issue 15: Some commenters asked, ``What are the effects of the
proposal on private lands?'
Service Response: This NEP designation will impose no additional
restrictions on activities on private lands other than those that
currently exist, except for restricting intentional take of the
reintroduced ferrets. This NEP designation relaxes the consultation
process under section 7 of the 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. 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 the Rosebud reintroduction effort predict that all current
land uses on private lands in these areas will continue to operate
following reintroduction of black-footed ferrets.

Effective Date Justification

We find good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to make this rule effective upon publication. Making this
rule effective immediately allows for the timely transfer of suitable
black-footed ferret preconditioned animals or those that are wild-born
to the Experimental Population Area. The following biological
considerations necessitate this approach. Weather conditions may
preclude the ability to trap and move wild-born ferrets. The
opportunity to release ferrets on Rosebud Tribal Trust lands is
dependent upon the availability of animals for translocation, which may
be limited in the captive population. The success of the reintroduction
effort may be related, at least in part, to the ability to release
animals immediately upon publication of this rule. Therefore, we are
making this rule effective immediately upon publication.

Required Determinations

Regulatory Planning and Review (E.O. 12866)
In accordance with the criteria in Executive Order 12866, the
designation of NEP status for the black-footed ferret reintroduction
into south-central South Dakota is not a significant regulatory action
subject to Office of Management and Budget review. This rule will not
have an annual economic effect of $100 million and will not have an
adverse effect upon any economic sector, productivity, jobs, the
environment, or other units of government. Therefore, a cost-benefit
and economic analysis is not required.
Lands within the Experimental Population Area affected by this rule
include Gregory, Mellette, Todd, and Tripp Counties in South Dakota.
The primary reintroduction area where ferrets will be released is
Rosebud Tribal Trust lands in Todd County, and most of the prairie dog
colonies within the primary release area are on these lands. Prairie
dog colonies off the Rosebud Tribal Trust lands but within the primary
reintroduction area and those colonies within Experimental Population
Area but outside the primary reintroduction area are not needed for the
Reservation reintroduction effort to have a successful site. Land uses
on private, Tribal, and State school lands will not be hindered by the
proposal, and only voluntary participation by private landowners will
occur.
This rule will not create inconsistencies with other agencies'
actions or otherwise interfere with an action taken or planned by
another agency. Federal agencies most interested in this rulemaking are
primarily other Department of the Interior bureaus (i.e., Bureau of
Indian Affairs) and the Department of Agriculture (Forest Service).
This rulemaking is consistent with the policies and guidelines of the
other Interior bureaus. 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

[[Page 26506]]

of their recipients. This rule will not raise novel legal or policy
issues. The Service has previously designated experimental populations
of black-footed ferrets at seven other locations (in Colorado/Utah,
Montana, South Dakota, Arizona, and Wyoming) and for other species at
numerous locations throughout the nation.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The area affected by this rule consists of the Rosebud Indian
Reservation, and private, Federal, and State lands that fall within the
south-central tier of counties in South Dakota (Mellette, Todd, Tripp,
and Gregory Counties). Reintroduction of ferrets allowed by this rule
will not have any significant effect on recreational activities in the
Experimental Population Area. We do not expect any closures of roads,
trails, or other recreational areas. Suspension of prairie dog shooting
for ferret management purposes will be localized and prescribed by the
Tribe. We do not expect ferret reintroduction activities to affect
grazing operations, resource development actions, or the status of any
other plant or animal species within the release area. Because
participation in ferret reintroduction by private landowners is
voluntary, this rulemaking is not expected to have any significant
impact on private activities in the affected area. The designation of
the NEP in this rule will significantly reduce the regulatory
requirements regarding the reintroduction of these ferrets, will not
create inconsistencies with other agency actions, and will not conflict
with existing or proposed human activity, or Tribal and public use of
the land.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule will not have
an annual effect on the economy of $100 million or more for reasons
outlined above. It will not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. The rule does not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

The NEP designation will not place any additional requirements on
any city, county, or other local municipalities. The specific site
designated for release of the experimental population of ferrets is
predominantly Rosebud Sioux Tribal Trust land administered by the
Rosebud Sioux Tribe, who support this project. The State of South
Dakota has expressed support 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. Since 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 Reform Act, 2 U.S.C. 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).

Takings (E.O. 12630)

In accordance with Executive Order 12630, the rule does not have
significant takings implications. Designating reintroduced populations
of federally listed species as NEPs significantly reduces the Act's
regulatory requirements with respect to the reintroduced listed species
within the NEP. Under NEP designations, the Act requires a Federal
agency to confer with the Service if the agency determines 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 an 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 NEPs, and a special rule has been developed
stipulating that unintentional take (including killing or injuring) of
the reintroduced black-footed ferrets will not be a violation of the
Act, when such take is incidental to an otherwise legal activity (e.g.,
livestock management, mineral development) that is in accordance with
Federal, Tribal, State, and local laws and regulations.
Most of the lands within the primary reintroduction area are
administered by the Rosebud Sioux Tribe. Multiple-use management of
these lands by industry and recreation interests will not change as a
result of the experimental designation. Private landowners within the
Experimental Population Area will still be allowed to conduct lawful
control of prairie dogs, and may elect to have black-footed ferrets
removed from their land should ferrets move to private lands. Because
of the substantial regulatory relief provided by NEP designations, we
do not believe the reintroduction of ferrets will conflict with
existing human activities or hinder public use of the area. The South
Dakota Department of Game, Fish, and Parks has previously endorsed
ferret reintroductions under NEP designations and continues to do so
for this effort. The NEP designation will not require the South Dakota
Department of Game, Fish, and Parks to specifically manage for
reintroduced ferrets. A takings implication assessment is not required.

Federalism (E.O. 13132)

In accordance with Executive Order 13132, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment. As stated above, most of the lands within the
primary reintroduction area are Tribal Trust 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
State of South Dakota. The Service has coordinated extensively with the
Tribe and State of South Dakota, and they endorse the NEP designation
as the only feasible way to pursue ferret recovery in the area. A
Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

In accordance with Executive Order 12988, the Department of the
Interior has determined that this rule does not unduly burden the
judicial system and meets the applicable standards provided in sections
3(a) and 3(b)(2) of the order.

Paperwork Reduction Act

This regulation contains information collection requirements under
the Paperwork Reduction Act (and approval by the Office of Management
and Budget (OMB)) under 44 U.S.C. 3501 et seq. The collected
information covers general take or removal, depredation-related take,
and specimen collection. Authorization for this information collection
has been approved by OMB and has been assigned OMB control number 1018-
0095, which expires October 31, 2004. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a current valid OMB control number.

[[Page 26507]]

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes (E.O. 13175)

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have closely
coordinated this rule with the affected tribe, the Rosebud Sioux Tribe.
Throughout development of this rule, we have maintained regular contact
with the Rosebud Sioux Tribe and have received their support for this
reintroduction and NEP designation.

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

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this final
rule is not a significant regulatory action under Executive Order
12866, it is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is a not a significant
energy action, and no Statement of Energy Effects is required.

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.
Biggins, D.E., B.J. Miller, L.R. Hanebury, B. Oakleaf, A.H. Farmer,
R. Crete, and A. Dood. 1993. A technique for evaluating black-footed
ferret habitat. Proceedings of the Symposium on the Management of
Prairie Dog Complexes for the Reintroduction of the Black-footed
Ferret. Biological Report 13, pp. 73-88.
Biggins, D.E., J.L. Godbey, L.R. Hanebury, B. Luce, P.E. Marinari,
M.R. Matchett, and A. Vargas. 1998. The effects of rearing methods
on survival of reintroduced black-footed ferrets. Journal of
Wildlife Management 62:643-653.
Black-footed Ferret Recovery Implementation Team. 2000. Evaluation
of potential black-footed ferret reintroduction sites in North
America. 17 pp.
Bureau of Indian Affairs. 1995. Final Environmental Impact Statement
for livestock grazing and prairie dog management for the Rosebud and
Cheyenne River Sioux Indian Reservations. Aberdeen Area Office.
Eskey, C.R., and V.H. Haas. 1940. Plague in the western part of the
United States. United States Public Health Bulletin No. 254. 83 pp.
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 pp.
Hanebury, L. 1988. Black-footed ferret search coordinator memorandum
to N. McPhillips regarding detailing ferret surveys on Rosebud
Indian Reservation. 5 pp.
Henderson, F.R., P.F. Springer, and R. Adrian. 1969. Updated 1974.
The black-footed ferret in South Dakota. South Dakota Department of
Game, Fish and Parks, Technical Bulletin 4:1-36.
Hillman, C.N., and R.L. Linder. 1973. The black-footed ferret. Pages
10-20 in Proceedings of the Black-footed Ferret and Prairie Dog
Workshop, Sept. 4-6, 1973. South Dakota State University, Brookings.
208 pp.
Schroeder, M.H. and S.J. Martin. 1982. Search for the black-footed
ferret succeeds. Wyoming Wildlife 46(7):8-9.
Superintendent Memorandum. 1989. Certification to conduct black-
footed ferret surveys. Pine Ridge Agency.
U.S. Fish and Wildlife Service. 1988. Black-footed ferret recovery
plan. U.S. Fish and Wildlife Service, Denver, Colorado. 154 pp.
Vargas, A., M. Lockhart, P. Marinari, and P. Gober. 1998. Preparing
captive-raised black-footed ferrets (Mustela nigripes) for survival
after release. Jersey Wildlife Preservation Trust 34:76-83.
Williams, E.S., E.T. Thorne, T.S. Quan, and S.L. Anderson. 1991.
Experimental infection of domestic ferrets (Mustela putorius furo)
and Siberian polecats (Mustela eversmanni) with Yersinia pestis.
Journal of Wildlife Diseases 27:441-445.
Williams, E.S., K. Mills, D.R. Kwiatkowski, E.T. Thorne, and A.
Boerger-Fields. 1994. Plague in a black-footed ferret (Mustela
nigripes). Journal of Wildlife Diseases 30: 581-585.

Authors

The primary authors of this rule are Mike Lockhart and Scott
Larson (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulations Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the U.S. Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.

0
2. Amend Sec. 17.11(h) by revising the existing entry for ``Ferret,
black-footed'' under ``MAMMALS'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 26508]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
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, NA NA
Western Canada. where listed as 546, 582, 646,
an experimental 703, 737.
population.
Do............................ ......do.......... ......do......... U.S.A. (specified XN 433, 545, 546, NA 17.84(g)
portions of AZ, 582, 646, 703,
CO, MT, SD, UT, 737.
and WY, see
17.84(g)(9)).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.84 by revising paragraphs (g)(1) and (g)(4)(iii) and
by adding paragraphs (g)(6)(vii) and (g)(9)(vii) to read as follows,
and by 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) through (vii) of this section are nonessential experimental
populations. We will manage each of these populations in accordance
with their respective management plans.
* * * * *
(4) * * *
(iii) To relocate a ferret that has moved outside the Little Snake
Black-footed Ferret Management Area/Coyote Basin Primary Management
Zone or the Rosebud Sioux Reservation Experimental Population Area when
that relocation 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.
* * * * *
(6) * * *
(vii) Report such taking in the Rosebud Sioux Reservation
Experimental Population Area to the Field Supervisor, Ecological
Services, U.S. Fish and Wildlife Service, Pierre, South Dakota
(telephone 605/224-8693).
* * * * *
(9) * * *
(vii) The Rosebud Sioux Reservation Experimental Population Area is
shown on the map of south-central South Dakota at the end of paragraph
(g) of this section. The boundaries of the nonessential experimental
population area include all of Gregory, Mellette, Todd, and Tripp
Counties in South Dakota. Any black-footed ferret found within these
four counties will be considered part of the nonessential experimental
population after the first breeding season following the first year of
black-footed ferret release. A black-footed ferret occurring outside
the nonessential experimental population area in south-central South
Dakota will initially be considered as endangered but may be captured
for genetic testing. If necessary, disposition of the captured animal
may occur in the following ways:
(A) If an animal is genetically determined to have originated from
the experimental population, we may return it to the reintroduction
area or to a captive-breeding facility.
(B) If an animal is determined to be genetically unrelated to the
experimental population, we will place it in captivity under an
existing contingency plan. Up to nine black-footed ferrets may be taken
for use in the captive-breeding program.
* * * * *

BILLING CODE 4310-55-P

[[Page 26509]]

[GRAPHIC] [TIFF OMITTED] TR16MY03.021

[[Page 26510]]

Dated: April 16, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-12199 Filed 5-15-03; 8:45 am]

BILLING CODE 4310-55-C