[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Proposed Rules]
[Pages 33613-33632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12991]

[[Page 33613]]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0123; FXES11130200000-212-FF02ENEH00]
RIN 2018-BD61

Endangered and Threatened Wildlife and Plants; Revision of a 
Nonessential Experimental Population of Black-Footed Ferrets (Mustela 
nigripes) in the Southwest

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; announcement of a draft environmental 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service and USFWS), 
propose to revise the regulation for the nonessential experimental 
population of the black-footed ferret (Mustela nigripes) (ferret) in 
Arizona. We established the Aubrey Valley Experimental Population Area 
(AVEPA) in 1996 in accordance with section 10(j) of the Endangered 
Species Act of 1973, as amended (ESA). This proposed rule would allow 
the reintroduction of ferrets across a larger landscape as part of a 
nonessential experimental population and include the AVEPA within a 
larger ``Southwest Experimental Population Area'' (SWEPA), which 
includes parts of Arizona and identified contiguous Tribal land in New 
Mexico and Utah. This proposed revision provides a framework for 
establishing and managing reintroduced populations of ferrets that will 
allow greater management flexibility and increased landowner 
cooperation. The best available data indicate that reintroduction of 
the ferret into suitable habitat in the proposed SWEPA is biologically 
feasible and will promote the conservation of the species. We are 
seeking comments on this proposal and on our draft environmental 
assessment (EA) that analyzes the potential environmental impacts 
associated with the proposed regulatory revisions.

DATES: We will accept comments received or postmarked on or before 
August 24, 2021. If you are using the Federal eRulemaking Portal (see 
ADDRESSES), the deadline for submitting an electronic comment is 11:59 
p.m. Eastern Time on this date.

ADDRESSES: You may submit comments on the proposed rule and draft EA by 
one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the Docket Number for 
this rulemaking: FWS-R2-ES-2020-0123. Then, in the Search panel on the 
left side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    By hard copy: Submit by U.S. mail to: Public Comments Processing, 
Attn: FWS-R2-ES-2020-0123, U.S. Fish and Wildlife Service, MS: PRB/3W, 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see ``Public Comments'' below for more information).
    Copies of Documents: The proposed rule, draft EA, and supporting 
documents are available at the following website: http://www.regulations.gov in Docket No. FWS-R2-ES-2020-0123. Persons who use 
a telecommunications device for the deaf (TDD) may call the Federal 
Relay Service (FRS) at 1-800-877-8339.

FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, 
Phone: 602-242-0210. Direct all questions or requests for additional 
information to: BLACK-FOOTED FERRET QUESTIONS, U.S. Fish and Wildlife 
Service, Arizona Ecological Services Office, 9828 North 31st Avenue, 
Suite C3, Phoenix, AZ 85051. Individuals who are hearing-impaired or 
speech-impaired may call the FRS at 1-800-877-8337 for TTY assistance.


Public Comments

    We want to ensure that any final rule developed from this proposed 
revision to the 1996 rule is as effective as possible. Therefore, we 
invite Tribal and other governmental agencies, the scientific 
community, industry, and other interested parties to submit comments 
(including recommendations and information) concerning any aspect of 
this proposed revision. Your comments should be as specific as 
    To issue a final rule implementing this revision, we will take into 
consideration all comments and information we receive. Such 
communications may lead to a final rule that differs from this proposed 
revision. All comments, including commenters' names and addresses, if 
provided to us, will become part of the supporting record.
    You may submit your comments concerning the proposed revision by 
one of the methods listed in ADDRESSES. You must submit comments to 
http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date 
specified in DATES. We will not consider hardcopy comments not 
postmarked by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    The comments we receive and any supporting documentation we used in 
preparing this proposal will be available for public inspection at 
http://www.regulations.gov, or by appointment, during normal business 
hours at the U.S. Fish and Wildlife Service, Arizona Ecological 
    We specifically seek comments on:
     The appropriateness of revising the current AVEPA, and 
establishing new boundaries for the nonessential experimental 
population area to encompass all potential ferret habitat within 
Arizona and identified Tribal lands in New Mexico and Utah, for 
reintroduced populations of black-footed ferrets;
     Threats to ferrets in the proposed nonessential 
experimental population area that we have not considered in this 
revision that might affect a reintroduced population;
     The suitability of the proposed boundaries for this 
nonessential experimental population;
     The effects of reintroducing ferrets on public, private, 
and Tribal lands and activities such as ranching, recreation, 
residential development, and other land uses; and
     The compatibility of this proposal with ongoing 
implementation of the programmatic ferret Safe Harbor Agreement (SHA) 
in cooperation with non-Federal landowners.


Statutory and Regulatory Framework

    The 1982 amendments to the ESA (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j) that allows for the designation of 
reintroduced populations of listed species as ``experimental 
populations.'' Our implementing regulations for section 10(j) are in 
title 50 of the Code of Federal Regulations in part 17 (specifically at 
50 CFR 17.81); hereafter,

[[Page 33614]]

we refer to species-specific rules under section 10(j) of the ESA as 
``10(j) rules.'' These regulations state that the Service may designate 
a population of endangered or threatened species that we have released 
or will release into suitable natural habitat outside the species' 
current natural range, but within its probable historical range, as an 
experimental population.
    Under 50 CFR 17.81(b), before authorizing the release as an 
experimental population of any population of an endangered or 
threatened species, the Service must find by regulation that such 
release will further the conservation of the species. In making such a 
finding, the Service shall use the best scientific and commercial data 
available to consider:
    (1) Any possible adverse effects on extant populations of a species 
as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see ``Possible Adverse Effects on Wild and 
Captive-Breeding Populations'' below);
    (2) the likelihood that any such experimental population will 
become established and survive in the foreseeable future (see 
``Likelihood of Population Establishment and Survival'' below);
    (3) the relative effects that establishment of an experimental 
population will have on the recovery of the species (see ``Effects of 
the SWEPA on Recovery Efforts for the Species'' below); and
    (4) the extent to which the introduced population may be affected 
by existing or anticipated Federal, Tribal, or State actions or private 
activities within or adjacent to the experimental population area (see 
``Actions and Activities that May Affect the Introduced Population'' 
    Furthermore, under 50 CFR 17.81(c), any regulation designating 
experimental populations under section 10(j) of the ESA shall provide:
    (1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population(s) (see ``Identifying the Location and Boundaries of the 
SWEPA'' below);
    (2) a finding, based solely on the best scientific and commercial 
data available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild (see ``Is the Proposed 
Experimental Population Essential or Nonessential?'' below);
    (3) management restrictions, protective measures, or other special 
management concerns of that population, which may include but are not 
limited to, measures to isolate and/or contain the experimental 
population designated in the regulation from natural populations (see 
``Management Restrictions, Protective Measures, and Other Special 
Management'' below); and
    (4) a process for periodic review and evaluation of the success or 
failure of the release and the effect of the release on the 
conservation and recovery of the species (see ``Review and Evaluation 
of the Success or Failure of the SWEPA'' below).
    Under 50 CFR 17.81(d), the Service shall consult with appropriate 
State fish and wildlife agencies, local governmental entities 
[including Tribal governments], affected Federal agencies, and affected 
private landowners in developing and implementing experimental 
population rules. To the maximum extent practicable, 10(j) rules 
represent an agreement between the Service, affected Tribes, State and 
Federal agencies, and persons holding any interest in land that the 
establishment of an experimental population may affect.
    Under 50 CFR 17.81(f), the Secretary may designate critical habitat 
as defined in section 3(5)(A) of the ESA for an essential experimental 
population. The Secretary will not designate critical habitat for 
nonessential populations. The term essential experimental population 
means an experimental population whose loss would be likely to 
appreciably reduce the likelihood of the survival of the species in the 
wild. We classify all other experimental populations as nonessential 
(50 CFR 17.80).
    Under 50 CFR 17.82, we treat any population determined by the 
Secretary to be an experimental population as if we had listed it as a 
threatened species for the purposes of establishing protective 
regulations with respect to that population. The protective regulations 
adopted for an experimental population will contain applicable 
prohibitions, as appropriate, and exceptions for that population, 
allowing us discretion in devising management programs to provide for 
the conservation of the species.
    Under 50 CFR 17.83(a), for the purposes of section 7 of the ESA, we 
treat nonessential experimental populations as threatened when located 
in a National Wildlife Refuge or unit of the National Park Service 
(NPS), and Federal agencies follow conservation and consultation 
requirements per subsections 7(a)(1) and 7(a)(2), respectively. We 
treat nonessential experimental populations outside of a National 
Wildlife Refuge or NPS unit as species proposed for listing, and 
agencies only follow subsections 7(a)(1) and 7(a)(4). In these cases, 
nonessential experimental population designation provides additional 
flexibility, because it does not require Federal agencies to consult 
under section 7(a)(2). Instead, section 7(a)(4) requires Federal 
agencies to confer (not consult) with the Service on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. A conference results in conservation recommendations, which 
are discretionary. Because the nonessential experimental population is, 
by definition, not essential to the continued existence of the species, 
the effects of proposed actions on the population will generally not 
rise to the level of ``jeopardy.'' As a result, Federal agencies will 
likely never request a formal conference for actions that may affect 
ferrets established in the proposed SWEPA. Nonetheless, some Federal 
agencies voluntarily confer with the Service on actions that may affect 
a proposed species.

Legal Status

    We listed the black-footed ferret as an endangered species in 1967 
under the Endangered Species Preservation Act of 1966 (32 FR 4001, 
March 11, 1967). We later codified this list in part 17 of title 50 in 
the U.S. Code of Federal Regulations (CFR) (35 FR 8491, October 13, 
1970). With the passage of the ESA in 1973 (16 U.S.C. 1531 et seq.), we 
incorporated those species previously listed in the CFR into the Lists 
of Endangered and Threatened Wildlife and Plants under the ESA, found 
at 50 CFR 17.11 and 17.12 (39 FR 1175, January 4, 1974).
    In 1996, we designated the population of black-footed ferrets 
established via reintroduction in Aubrey Valley as a nonessential 
experimental population (61 FR 11320, March 20, 1996). The Aubrey 
Valley Experimental Population Area (AVEPA) includes parts of Coconino, 
Mohave, and Yavapai Counties in northwestern Arizona. At the time of 
its designation, the AVEPA consisted of 22 percent State lands, 45 
percent Tribal lands (Hualapai Reservation), and 33 percent deeded 
lands (owned by the Navajo Nation).
    In 2013, the USFWS developed a range-wide programmatic Safe Harbor 
Agreement (SHA) to encourage non-Federal landowners to voluntarily 
undertake conservation activities on

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their properties to benefit the ferret (USFWS 2013b, entire) (see 
``Historical Range'' below). Through Certificates of Inclusion, we 
enroll willing landowners in our SHA section 10(a)(1)(A) Enhancement of 
Survival Permit. We treat ferrets as endangered outside of the AVEPA, 
and the provisions and exceptions of the experimental population 
designation do not apply; however, through the SHA, incidental take of 
ferrets by participating landowners and nonparticipating neighboring 
landowners is permissible. Also, through their certificates, we provide 
participating landowners assurances we will not require additional 
restrictions provided they follow provisions outlined in the SHA and 
detailed in a Reintroduction Plan developed by the landowner for the 
enrolled lands. The Service tailors conservation activities to each 
specific site under the SHA.
    General provisions of Arizona Revised Statutes, Title 17, protect 
all of Arizona's native wildlife, including federally listed threatened 
and endangered species. Under Navajo Nation law, it is unlawful for any 
person to take ferrets. All wildlife on the Hopi Reservation is the 
property of the Hopi Tribe, and Tribal law provides for take (see 
``Management Restrictions, Protective Measures, and Other Special 
Management'' below, for more information on State and Tribal legal 

Biological Information

Species Description

    The black-footed ferret (Mustela nigripes) is a medium-sized member 
of the weasel family (Mustelidae) weighing 1.4 to 2.5 pounds (645 to 
1125 grams) and measuring 19 to 24 inches (480 to 600 millimeters) in 
total length. Its body color includes yellowish-buff, occasionally 
whitish, upper parts, and black feet, tail tip, and ``mask'' across the 
eyes (Hillman and Clark 1980, p. 30).

Ecology/Habitat Use/Movement

    Black-footed ferrets are carnivorous, extremely specialized 
predators highly dependent on prairie dogs (Cynomys spp.) (Hillman 
1968, p. 438; Biggins 2006, p. 3). Ferrets prey predominantly on 
prairie dogs (Sheets et al. 1972, entire; Campbell et al. 1987, 
entire), occupy prairie dog burrows, and do not dig their own burrows 
(Forrest et al. 1988, p. 261). Ferrets select areas within prairie dog 
colonies that contain high burrow densities and thus high densities of 
prairie dogs (Biggins et al. 2006, p. 136; Eads et al. 2011, p. 763; 
Jachowski et al. 2011a, pp. 221-223; Livieri and Anderson 2012, pp. 
201-202). Given their obligate tie to prairie dogs, ferret populations 
associated with larger, less fragmented prairie dog colonies are more 
likely to be resilient and less likely to be extirpated by stochastic 
events compared to those associated with smaller, fragmented colonies 
(Miller et al. 1994, p. 678; Jachowski et al. 2011b, entire). 
Resiliency is the ability of populations to tolerate natural, annual 
variation in their environment and to recover from periodic or random 
disturbances (USFWS 2019, p. 2). Such stochastic events include 
epizootics, such as sylvatic plague (plague), and extreme weather or 
climate, including drought.
    The last naturally occurring wild ferret population, in Wyoming, 
averaged approximately 25 breeding adults throughout intensive 
demographic studies from 1982 to 1985 (USFWS 2019, p. 10). Based on 
this and population modeling, the Service considers 30 breeding adults 
a minimum for a population of ferrets to be self-sustaining (USFWS 
2013a, p. 70). Ferrets require large, contiguous prairie dog colonies 
to meet their individual needs, with colonies no more than 4.35 miles 
(7 kilometers [km]) apart. A conservative estimate of habitat 
requirements to support one female ferret is 222 acres (ac) (90 
hectares [ha]) of black-tailed prairie dog (C. ludovicianus) colonies, 
or 370 ac (150 ha) of Gunnison's prairie dog (C. gunnisoni) colonies 
(USFWS 2013a, p. 73). Assuming a two-to-one female-to-male sex ratio 
and overlapping male and female home ranges (Biggins et al. 1993, p. 
76), a population of 30 breeding adult ferrets would require 4,450 ac 
(1,800 ha) of black-tailed prairie dog colonies, or 7,415 ac (3,000 ha) 
of Gunnison's prairie dog colonies.
    Natal dispersal, defined as a permanent movement away from the 
birth area, occurs in the fall months among the young-of-the-year, 
although adults occasionally make permanent moves (Forrest et al. 1988, 
p. 268). Newly released captive-born ferrets have dispersed up to 30 
miles (49 km) (Biggins et al. 1999, p. 125), and wild-born ferrets more 
than 12 miles (20 km) (USFWS 2019, p. 7). Males tend to move greater 
distances than females.

Historical Range

    The black-footed ferret is the only ferret species native to the 
Americas (Anderson et al. 1986, p. 24). Before European settlement, 
ferret occurrence coincided with the ranges of three prairie dog 
species (black-tailed, white-tailed [C. leucurus], and Gunnison's), 
which collectively covered about 100 million ac (40.5 million ha) of 
Great Plains, mountain basins, and semi-arid grasslands extending from 
Canada to Mexico (Anderson et al. 1986, pp. 25-50; Biggins et al. 1997, 
p. 420). This amount of habitat could have supported one-half to one 
million ferrets (Anderson et al. 1986, p. 58). We have records of 
ferret specimens from Arizona, Colorado, Kansas, Montana, Nebraska, New 
Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming 
in the United States (U.S.) and from Saskatchewan and Alberta in Canada 
(Anderson et al. 1986, pp. 25-50). A rancher discovered the last wild 
population of ferrets (from which all existing ferrets descend) near 
Meeteetse, Wyoming, in 1981, after we had presumed the species extinct 
(Clark et al. 1986, p. 8; Lockhart et al. 2006, p. 8). By 1987, the 
Service and partners removed all known surviving wild ferrets (18 
individuals) from this area to initiate a captive-breeding program 
following disease outbreaks (Lockhart et al. 2006, p. 8). Since then, 
we have not located any wild populations, despite extensive and 
intensive rangewide searches; it is unlikely any undiscovered natural 
wild populations remain. For these reasons, the Service considers the 
ferret extirpated throughout its historical range, except for 
reintroduced populations (USFWS 2017, p. 2).
    In the Southwest, ferrets occurred in Arizona, Colorado, New 
Mexico, and Utah, within the historical range of Gunnison's prairie 
dogs, and in New Mexico and likely southeastern Arizona and Mexico, 
within the historical range of black-tailed prairie dogs (Hillman and 
Clark 1980, entire). In Arizona, historical ferret collections (1929-
1931) come from three locations in Coconino County (Belitsky et al. 
1994, p. 29). In 1967, Federal Animal Damage Control personnel (now 
known as Wildlife Services) reported seeing ferret sign while poisoning 
prairie dogs (pers. com. 1993, as cited in Belitsky et al. 1994, p. 2). 
Anderson et al. (1986, p. 25) speculated that prairie dog populations 
of sufficient size to support ferrets may have existed in northeastern 
Arizona on lands of the Navajo Nation, a sovereign Indian tribe. 
However, the Navajo Nation has determined that the ferret no longer 
occurs on their lands (Navajo Nation 2020). Prairie dogs also occur in 
significant numbers on the lands of two other sovereign Indian tribes, 
the Hopi Tribe (Johnson et al. 2010, entire) and the Hualapai Tribe, 
the latter of which the AVEPA partially overlaps.
    Dramatic historical declines in prairie dogs, coupled with 
prevalence of plague

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throughout the ferret's historical range, and the failure to locate new 
wild ferrets, suggests the species is extirpated in Arizona, except 
where it has been reintroduced (USFWS 2017, p. 2). The date of ferret 
extirpation in the Southwest is unknown; in Arizona, we have no 
verified reports for ferrets from 1931 through 1995, after which we 
initiated reintroduction efforts in the AVEPA. We consider the 
historical range of the ferret to coincide with the historical ranges 
of the Gunnison's and black-tailed prairie dogs.

Threats/Causes of Decline

    Black-footed ferret populations decreased historically for three 
main reasons. First, major conversion of native range to cropland, 
primarily in the eastern portion of the species' range, began in the 
late 1800s. Second, widespread poisoning of prairie dogs to reduce 
perceived competition with domestic livestock for forage began in the 
early 1900s. Third, in the 1930s, plague began to significantly 
adversely affect both prairie dogs and ferrets (Eskey and Hass 1940, p. 
62). By the 1960s, prairie dog occupied habitat reached a low of about 
1.4 million ac (570,000 ha) in the U.S. (Bureau of Sport Fisheries and 
Wildlife 1961, n.p.). For these reasons, ferret numbers declined to the 
point of perceived extinction. These threats resulted in a substantial 
loss of prairie dogs, which in turn led to an even greater decline in 
ferret populations due to the species' dependence on prairie dog 
colonies (Lockhart et al. 2006, p. 7). Such population bottlenecks can 
result in loss of genetic diversity and fitness and can manifest 
following even a temporary loss of habitat (USFWS 2013a, p. 23).
    In Arizona, the combined effects of prairie dog poisoning and 
plague decreased the area occupied by Gunnison's prairie dogs from 
about 6.6 million ac (2.7 million ha) historically to about 445,000 ac 
(180,000 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961, 
n.p.; Oakes 2000, pp. 169-171). Estimates of historical black-tailed 
prairie dog habitat in Arizona range from 650,000 ac (263,000 ha) to 
1,396,000 ac (565,000 ha) (Van Pelt 1999, p. 1; Black-footed Ferret 
Recovery Foundation 1999, p. 4). Extirpation of black-tailed prairie 
dogs in Arizona probably occurred prior to 1960. As with the rangewide 
effects, these prairie dog losses also resulted in the loss of ferrets; 
by the 1960's, we thought ferrets were extirpated in Arizona (Lockhart 
et al. 2006, pp. 7-8).
Cropland Conversion
    Major conversion of native range to cropland eliminated millions of 
acres of ferret habitat in the eastern portion of the ferret's range, 
particularly black-tailed prairie dog colonies (USFWS 2013a, p. 23). 
Land conversion caused far less physical loss of Gunnison's prairie dog 
habitat because, outside of riparian corridors and proximate irrigated 
lands, much of the habitat occupied by this species is not suitable for 
crops (Lockhart et al., 2006, p. 7). Knowles (2002, p. 12) noted 
displacement of prairie dogs from the more productive valley 
bottomlands in Colorado and New Mexico, but not in Arizona. Instead of 
converting native rangeland to irrigated crop and pasture lands, land- 
use of the range in Arizona was and continues to be primarily cattle 
grazing, with relatively minimal crop development. Cropland conversion 
in Arizona, while affecting ferrets locally, was not a major cause of 
decline in the State.
Prairie Dog Poisoning
    Poisoning was a major cause of the historical declines of prairie 
dogs and subsequently black-footed ferrets (Forrest et al. 1985; Cully 
1993, p. 38; Forrest and Luchsinger 2005, pp. 115-120). Similar to 
other threats limiting ferret recovery, poisoning affects ferrets 
through inadvertent secondary effects, poisoning caused by consumption 
of poisoned prairie dogs, or indirectly, through the loss of prairie 
dog prey base.
    In Arizona, from 1916 to 1933, rodent control operations treated 
4,365,749 ac (1,766,756 ha) of prairie dog colonies (Oakes 2000, p. 
179). A 1961 Predator and Rodent Control Agency report showed a 92 
percent decline in occupied prairie dog habitat in Arizona since 1921, 
with Gunnison's prairie dogs occupying 445,370 ac (180,235 ha). Only 
9,956 ac (4,029 ha) of prairie dog colonies in the 1961 surveys were 
located on non-Tribal lands. The 1961 Predator and Rodent Control 
Agency report also documented the extirpation of black-tailed prairie 
dogs from Arizona. Historical prairie dog poisoning was a major cause 
of decline of ferrets in Arizona.
    Sylvatic plague is the most significant challenge to ferret 
recovery (USFWS 2019, p. 21), with the USFWS classifying it as an 
imminent threat of high magnitude (USFWS 2020, p. 5). Plague is an 
exotic disease, caused by the bacterium Yersinia pestis, transmitted by 
fleas, that steamships inadvertently introduced to North America in 
1900. Because it was foreign and unknown to their immune systems, both 
ferrets and prairie dogs were and continue to be extremely susceptible 
to mortality from plague (Barnes 1993, entire; Cully 1993, entire; Gage 
and Kosoy 2006, entire). Plague can be present in a prairie dog colony 
in an epizootic (swift, large-scale die-offs) or enzootic (persistent, 
low level of mortality) state. Most of the information we have about 
the effects of plague is from epizootic events. Although its effects 
are not as dramatic as an epizootic outbreak, enzootic plague may 
result in negative growth rates for prairie dog and ferret populations 
and hinder ferret recovery (USFWS 2013a, pp. 33, 100).
    The first confirmation of plague in Gunnison's prairie dog in 
Arizona was in 1932, but we have limited historical data on the extent 
of its effects. In 2003, Wagner and Drickamer reported that in the 
previous 7 to 15 years, there had been a large reduction in the number 
of active Gunnison's prairie dog colonies in Arizona, primarily due to 
outbreaks of plague, which they said was the dominant negative effect 
on Arizona prairie dog populations. Prairie dogs in northern Arizona 
will likely continue to experience regular plague outbreaks (Wagner et 
al. 2006, p. 337).
Other Impediments to Recovery
    To successfully recover black-footed ferrets we need purposeful 
management of prairie dog populations to provide habitat of sufficient 
quality and in a stable, spatial configuration suitable to support and 
maintain new populations of reintroduced ferrets. Unfortunately, 
current management efforts for the species are failing to meet these 
conservation objectives (USFWS 2013a, pp. 46, 58, Table 6; USFWS 2020 
p. 5). The keys to correcting current management inadequacies are 
active plague management (discussed above), and ongoing, widespread 
partner involvement (USFWS 2013a, pp. 46-48) to facilitate 
establishment of new reintroduction sites and appropriately manage the 
quality and configuration of ferret habitat within the species range.
    In addition, consideration of other factors that may act alone or 
in concert with threats are necessary when planning and implementing 
recovery efforts. For example, canine distemper, a disease endemic to 
the U.S., posed a challenge to early ferret reintroduction efforts 
(Wimsatt et al. 2006, pp. 249-250). Today, however, we have minimized 
the threat of catastrophic population losses from canine distemper by 
the use of commercial

[[Page 33617]]

vaccines deployed in captive and wild ferret populations (USFWS 2013a, 
pp. 29-30). As discussed in the Black-Footed Ferret Recovery Plan 
(USFWS 2013a, pp. 53-55), we anticipate that climate change will alter 
and reduce prairie dog habitat and influence plague outbreaks. We also 
discuss prairie dog hunting and Federal and non-Federal actions and 
activities in the ``Actions and Activities that May Affect the 
Introduced Population'' section below.

Recovery, Captive Breeding, and Reintroduction Efforts to Date

    The goal of the Black-footed Ferret Recovery Plan (Recovery Plan) 
is to recover the ferret to the point at which it can be reclassified 
to threatened status (downlisted) and ultimately removed (delisted) 
from the List of Endangered and Threatened Wildlife (USFWS 2013a, pp. 
5, 59). The strategy of the Recovery Plan is to involve many partners 
across the historical range of the species in order to establish 
multiple, widely spaced populations, within the range of all three 
prairie dog species. Such distribution will safeguard the species, as a 
whole, from the widespread chronic effects of plague as well as other 
periodic or random disturbances that may result in the loss of a 
population in one or more given areas. Partner involvement is critical 
for the development of new sites and their long-term management. 
Although ferret habitat is significantly less than historical times, a 
sufficient amount remains if we can appropriately manage its quality 
and configuration to support reintroductions (USFWS 2013a, p. 5). The 
Recovery Plan provides objective, measurable criteria to achieve 
downlisting and delisting of the ferret.
    Recovery Plan downlisting and delisting criteria include managing a 
captive breeding population of at least 280 adults as the source 
population to establish and supplement free-ranging populations and 
repopulate sites in the event of local extirpations. Downlisting 
criteria include establishing at least 1,500 free-ranging breeding 
adults in 10 or more populations, in at least 6 of 12 States in the 
species' historical range, with no fewer than 30 breeding adult ferrets 
in any population, and at least 3 populations in colonies of Gunnison's 
and white-tailed prairie dogs. Delisting criteria include at least 
3,000 free-ranging breeding adults in 30 or more populations, in at 
least 9 of 12 States in the species' historical range. There should be 
no fewer than 30 breeding adults in any population, and at least 10 
populations with 100 or more breeding adults, and at least 5 
populations in Gunnison's and white-tailed prairie dog colonies. We 
must meet these population objectives for at least 3 years prior to 
downlisting or delisting. Habitat criteria include maintaining 247,000 
ac (100,000 ha) of prairie dog colonies at reintroduction sites for 
downlisting, and 494,000 ac (200,000 ha) for delisting (USFWS 2013a, 
pp. 61-62).
    Additionally, for each State in the historical range of the 
species, the Recovery Plan suggests recovery guidelines proportional to 
the amount of prairie dog habitat historically present to equitably 
help support and achieve the recovery strategy and criteria (USFWS 
2013a, p. 69). Guidelines for Arizona's contribution to downlisting are 
74 free-ranging breeding adult ferrets on 17,000 ac (6,880 ha) of 
Gunnison's prairie dog- occupied habitat; delisting guidelines are 148 
breeding adults on 34,000 ac (13,760 ha) (USFWS 2013a, Table 8). The 
guidelines for New Mexico and Utah are 220 and 25 breeding adult 
ferrets for downlisting, respectively, and 440 and 50 breeding adults 
for delisting; most of these guidelines are for black-tailed or white-
tailed prairie dog habitat.

Captive Breeding

    The Service and partners established the black-footed ferret 
captive-breeding program from 18 ferrets captured from the last known 
wild population at Meeteetse, Wyoming, in 1985 to 1987 (Lockhart et al. 
2006, pp. 11-12). Of those 18 ferrets, 15 individuals, representing the 
genetic equivalent of seven distinct founders (original genetic 
contributor, or ancestor), produced a captive population that is the 
foundation of present recovery efforts (Garelle et al. 2006, p. 4). All 
extant ferrets, both captive and reintroduced, descended from those 
seven founders. The purpose of the captive-breeding program is to 
maintain a secure and stable ferret population with maximum genetic 
diversity, to provide a sustainable source of ferrets for 
reintroduction to achieve recovery of the species (USFWS 2013a, pp. 6, 
81). The captive-breeding population of ferrets is the primary 
repository of genetic diversity for the species. There are currently 
six captive-breeding facilities maintained by the Service and its 
partners: The Service's National Black-footed Ferret Conservation 
Center near Wellington, Colorado; the Cheyenne Mountain Zoological 
Park, Colorado Springs, Colorado; the Louisville Zoological Garden, 
Louisville, Kentucky; the Smithsonian Biology Conservation Institute, 
Front Royal, Virginia; the Phoenix Zoo, Phoenix, Arizona; and the 
Toronto Zoo, Toronto, Ontario, Canada. The combined population of all 6 
facilities is currently about 300 ferrets (USFWS 2020, p. 2).
    We manage the demography and genetics of the captive population 
consistent with guidance from the Association of Zoos and Aquariums 
(AZA) Black-footed Ferret Species Survival Plan (SSP[supreg]). This 
includes maintaining a stable breeding population of at least 280 
animals with a high level of genetic diversity and providing a 
sustainable source of ferrets for reintroduction. The captive-breeding 
facilities produce about 250 juvenile ferrets annually and have 
produced about 9,300 ferrets in total (Graves et al. 2018, p. 3; 
Santymire and Graves 2020, p. 12). The distribution of ferrets across 
six widespread facilities protects the species from catastrophic 
events. Currently, we retain about 80 juveniles annually in AZA 
SSP[supreg] facilities for continued captive-breeding purposes. We 
consider the remaining juveniles genetically redundant and excess to 
the AZA SSP[supreg], and available for reintroductions (USFWS 2013a, p. 
    Each year the Service solicits proposals for allocations of ferrets 
to establish new sites or augment existing sites, or for educational or 
scientific purposes (e.g., plague vaccine research). The limited number 
of ferrets available for release each year requires that we efficiently 
allocate them to the highest priority sites first. The Service uses a 
ranking procedure for allocating ferrets to reintroduction sites 
(Jachowski and Lockhart 2009, pp. 59-60). Ranking criteria include 
project background and justification, involved agencies/parties, 
habitat conditions, ferret population information, predator management, 
disease monitoring and management, contingency plans, potential for 
pre-conditioning of released ferrets, veterinary and husbandry support, 
and research contributions. Members of the Black-footed Ferret Recovery 
Implementation Team review the proposals and the Service's rankings of 
the proposals (USFWS 2013a, pp. 87-88).
    Each year, we allocate 150 to 220 ferrets for reintroduction into 
the wild from the captive-breeding population; as of 2020 we had 
allocated 5,544 ferrets rangewide (T. Tretten, USFWS, pers. comm. 12/
10/20). The number of ferrets we allocate to a site depends on site 
size and prey density (USFWS 2016, pp. 1, 21). It also depends on 
purpose and needs; for example, whether the purpose is to initiate 
establishment of a population or augment a site, which may entail 
multiple releases in a year. A release can involve a single ferret, but 
for initial releases, in general, the

[[Page 33618]]

Service recommends releasing 20 to 30 individuals (P. Gober, USFWS, 
pers. comm., March 4, 2018).

Rangewide Reintroduction Efforts to Date

    The Service and partners have reintroduced ferrets at 30 sites in 
the western U.S., Canada, and Mexico. In the United States, 12 ferret 
reintroductions have occurred through experimental population 
designations under section 10(j) of the ESA, 15 under SHA Enhancement 
of Survival permits under section 10(a)(1)(A), and one under section 7 
of the ESA (John Hughes, USFWS, pers. comm., January 28, 2018). 
Additionally, there has been one reintroduction each in Chihuahua, 
Mexico, and in Saskatchewan, Canada. As of December 9, 2019, 13 of 29 
reintroduction sites were active, with a total estimated wild 
population of about 325 individuals (USFWS 2020, p. 2), 254 of which 
are on only 4 sites (USFWS 2019, Table 3). The Service recently 
determined 2 reintroduction sites were in high condition (high 
resiliency), 8 were in moderate condition (moderate resiliency), 4 were 
in low condition (low resiliency), and 15 were extirpated, primarily 
due to the plague (USFWS 2019, p. ii). We did not include the most 
recent reintroduction site, the thirtieth, in our analysis. There are 
240,173 ac (97,197 ha) of active prairie dog colonies on all sites 
combined (USFWS 2019, p. 45).

Arizona-Specific Reintroduction Efforts to Date

    The Arizona Game and Fish Department (AGFD) and Service have 
carried out multiple ferret reintroductions and augmentations in 
northern Arizona. In 1996, we reintroduced ferrets to the AVEPA in 
cooperation with the Hualapai Tribe and the Navajo Nation (61 FR 11320, 
March 20, 1996). AVEPA was the fifth ferret reintroduction site in the 
U.S. and the first reintroduction site in a Gunnison's prairie dog 
population (USFWS 2013a, Figure 1). In 2011, AGFD personnel observed 
ferrets outside of the AVEPA, including on the adjacent Double O Ranch, 
presumably dispersing from the AVEPA. In 2012, the number of breeding 
adults in the AVEPA was 123, which exceeded the recommended State 
guidelines for downlisting (USFWS 2013a, Table 2, Table 8). Since then, 
AGFD has documented significantly fewer ferrets over several years 
(AGFD 2016, p. 3; USFWS 2019, p. 45). We suspect that enzootic plague 
may have caused this decline, but we do not know the long-term trend or 
whether it is cyclical. Despite lower numbers, we consider the AVEPA to 
be a persistent reintroduction site (P. Gober, USFWS, pers. comm, March 
4, 2018).
    In 2007, we established the Espee Ranch (a.k.a. Allotment) 
reintroduction site under a section 10(a)(1)(A) research and recovery 
permit. The status of the Espee population is currently unknown but 
likely extirpated due to plague (AGFD, unpub. data).
    The Babbitt Ranches, LLC, for the Espee Allotment (the existing 
Espee Ranch reintroduction site), and Seibert Land Company LLC, for the 
Double O Ranch, enrolled in the programmatic SHA with the Service in 
2014 and 2016, respectively. The figure at the end of this proposed 
rule identifies these SHA lands in the proposed SWEPA. The AVEPA and 
adjacent Double O Ranch contain the only known ferrets in the proposed 
SWEPA, and we consider them to be one population and reintroduction 

Plague Mitigation Efforts

    We continue making advances to address plague, even as it remains 
the most significant challenge to ferret recovery. Rocke et al. (2006, 
entire) developed a vaccine (F1-V) to prevent plague in ferrets, which 
we now use operationally, vaccinating all ferrets provided for 
reintroduction (Abbott and Rocke 2012, p. 54). Another vaccine under 
development is the sylvatic plague vaccine (SPV), which we deliver via 
treated baits to wild prairie dogs and may eventually protect ferrets 
from habitat reduction due to plague. SPV has been effective in a 
laboratory setting (Rocke et al. 2010, entire; Abbott and Rocke 2012, 
pp. 54-55), and a recent broad-scale experiment to test efficacy in the 
field found it prevented colony collapse where plague epizootics were 
documented (Rocke et al. 2017, p. 443). In addition, we have managed 
both enzootic and epizootic plague by application of the insecticide 
deltamethrin, in powder form, into prairie dog burrows to control fleas 
(Seery et al. 2003, p. 443; Seery 2006, entire, Matchett et al. 2010, 
pp. 31-33; USFWS 2013a, p. 101). However, the application of 
insecticidal dust is costly and labor-intensive, and there are concerns 
about the development of deltamethrin-resistance in fleas. Therefore, 
we continue working to improve the application and efficacy of the 
insecticide deltamethrin and are researching other pesticides, such as 
fipronil, a systemic pulicide (flea-specific insecticide) that is 
incorporated into grain baits for prairie dog consumption (Poch[eacute] 
et al. 2017, entire; Eads et al. 2019, entire).


    Ferret recovery will be a dynamic process, requiring long-term 
active management (e.g., plague control) and involving reintroduced 
populations rangewide in various stages of suitability and 
sustainability--with some undergoing extirpation concurrently as others 
establish or reestablish after extirpation. The dynamic nature of 
ferret recovery and conservation is illustrated by the Service's 
experience with the AVEPA population, which at one point was self-
sustaining with ferrets dispersing outside the experimental population 
area, but then experienced a significant population decline, presumably 
due to plague, in 2013. Therefore, future ferret recovery is dependent 
on establishment of multiple, spatially spread populations of 
reintroduced ferrets in Arizona to contribute to species recovery, 
which establishment of the SWEPA will help achieve.

Proposed Experimental Population

    We propose to revise and replace the existing nonessential 
experimental population designation for black-footed ferrets in Arizona 
(the AVEPA) with the SWEPA, under section 10(j) of the ESA. We based 
the proposed boundaries of the 40,905,350-ac (16,554,170-ha) SWEPA on 
the historical range of Gunnison's and black-tailed prairie dogs, which 
coincides with the presumed historical range of black-footed ferret in 
Arizona. The only ferrets occurring within the proposed SWEPA are 
within the AVEPA and adjacent areas and constitute a single population. 
Therefore, the SWEPA, which will encompass the AVEPA, would be wholly 
geographically separate from other populations. Currently, scattered 
throughout the SWEPA there are approximately 358,000 ac (144,880 ha) of 
prairie dog colonies (H. Hicks, AGFD, pers. comm., January 26, 2018; 
Johnson et al., 2010, p. iv) inhabiting about 0.875 percent of the 
area. Establishment of the SWEPA allows the Service to reintroduce 
ferrets as a nonessential experimental population within the SWEPA area 
that encompasses all potential ferret habitat within the boundaries of 
the State of Arizona, including the Hopi Reservation, the Hualapai 
Reservation, and the Navajo Nation in its entirety, which includes the 
Nation's contiguous areas in New Mexico and Utah (see the figure 
entitled ``Southwest Nonessential Experimental Population Area (SWEPA) 
for the black-footed ferret'' below). Land ownership within the SWEPA 
is Federal, private, State, and Tribal.

[[Page 33619]]

Potential Release Sites

    The Service selects ferret reintroduction sites and conducts 
reintroductions based on the Black-Footed Ferret Field Operations 
Manual (Operations Manual) (USFWS 2016, entire), and other site-
specific plans and procedures. We propose all suitable habitat, meeting 
the minimum acreage requirements to support a population of ferrets 
within the SWEPA, as possible experimental population reintroduction 
locations as we currently lack information about the distribution of 
habitat, to appropriately identify all prospective reintroduction 
sites. Some SWEPA areas may become suitable in the future with 
appropriate management, and ferrets may also disperse from successful 
reintroduction sites as observed previously with the AVEPA 10(j). By 
including all suitable habitat within the SWEPA, where ferrets may be 
reintroduced or disperse as potential reintroduction sites, this 
experimental population designation will extend regulatory flexibility 
to any adjacent non-participating landowners to alleviate potential 
    Currently, the Service anticipates reintroducing ferrets only into 
a small portion of the SWEPA that meets criteria for reintroductions. 
Six reintroduction areas have been identified by AGFD in their 
Management Plan for the Black-footed Ferret in Arizona (Management 
Plan) (AGFD 2016) based on prairie dog population estimates. Within the 
Management Plan, the areas are organized into Active Management Areas 
(MA), Suitable MAs, and Potential MAs. The AGFD currently manages 
Active MAs for ferrets. Suitable MAs have sustained minimum prairie 
dog-occupied acreage for 3 years and are ready to receive ferrets to 
establish new populations (see ``Ferret Allocations'' below). Potential 
MAs do not meet the minimum prairie dog-occupied acreage and need 
management to improve prairie dog populations (e.g., translocations or 
plague control) (AGFD 2106, pp. 8-10). Two sites within the SWEPA 
currently are Active MAs: (1) AVEPA/Double O Ranch and (2) Espee Ranch, 
respectively. There are four Potential MAs. These areas are located in: 
(1) Kaibab National Forest, Williams/Tusayan Ranger Districts; (2) CO 
Bar Ranch; (3) Petrified Forest National Park; and (4) Lyman Lake (see 
``Identifying the Location and Boundaries of the SWEPA'' below for more 
information on these sites).

Ferret Allocations

    The Service allocates ferrets through an annual process (see 
``Captive Breeding'' above). To qualify for the annual application and 
ranking process, AGFD, Tribes, and/or other land managers develop 
annual site-specific reintroduction plans and submit them to the 
Service by mid-March for consideration. The site manager of the 
proposed reintroduction site may be required to implement plague 
management at the site (e.g., applying Delta Dust[supreg] 
[deltamethrin]), prior to and after ferret reintroduction.
    Typically, the Service only considers ferret allocations to 
proposed reintroduction sites that contain enough prairie dog-occupied 
habitat to support at least 30 breeding adult ferrets. For Gunnison's 
prairie dogs this typically equates to 7,415 acres (3,000 ha), and for 
black-tailed prairie dogs, typically 4,450 acres (1,800 ha); however, 
these amounts vary depending on site conditions, such as the density of 
prairie dogs (USFWS 2019, p. 10). In addition, AGFD requires a minimum 
of 5,540 acres of Gunnison's prairie dog-occupied habitat for 3 years 
to consider it a ferret reintroduction site on AGFD lands (AGFD 2016, 
p. 15). For more information about allocations, see ``Possible Adverse 
Effects on Wild and Captive-Breeding Populations'' below.

Release Procedures

    The Service and ferret reintroduction managers follow the 
Operations Manual, allowing for adjustments to the techniques according 
to Service-approved management plans (e.g., AGFD 2016). All captive-
reared ferrets receive adequate preconditioning in outdoor pens at the 
National Black-footed Ferret Conservation Center, or other Service-
approved facility, prior to release. Ferrets exposed to preconditioning 
exhibit higher post-release survival rates than non-preconditioned 
ferrets (Biggins et al. 1998, pp. 651-652; Vargas et al. 1998, p. 77). 
We vaccinate ferrets for canine distemper and plague, and implant 
passive integrated transponder (PIT) tags for later identification, 
prior to release. The Service makes arrangements with reintroduction 
site managers for a release date from August to November, which is when 
young-of-the-year ferrets disperse (USFWS 2016, p. 16). Typically, the 
Service transports the ferrets to the site and releases them directly 
into suitable habitat without protection from predators, known as a 
``hard release.''

Reintroduction Site Management

    Field managers use the Operations Manual and Arizona's Management 
Plan to manage reintroduction sites on non-Tribal lands. Field managers 
use the Operations Manual and any appropriate Tribal ferret management 
plan and other site-specific plans and procedures for reintroductions 
on Tribal lands. The field manager conducting the reintroduction 
develops a site-specific management plan in conjunction with the 
landowner or manager and the Service. For most Federal, State, and 
private land sites, the field manager would be AGFD, and on Tribal 
lands, the field manager would be the appropriate Tribal wildlife 
authority. The Service is an active cooperator in the management of all 
sites. All involved parties follow all applicable laws regulating the 
protection of ferrets (see ``Management Restrictions, Protective 
Measures, and Other Special Management'' below). AGFD's Management Plan 
(AGFD 2016) outlines procedures for prairie dog and ferret population 
monitoring; health and disease monitoring and management; prairie dog 
translocation; seasonal hunting closures; and supplemental feeding; 
captive-bred ferret releases and captive breeding; and predator 
management. It also includes protocols for ferret monitoring, capture, 
and handling (AGFD 2016, Appendices G and H).

How will the experimental population (SWEPA) further the conservation 
of the species?

    As cited above, under 50 CFR 17.81(b), before authorizing the 
release as an experimental population, the Service must find by 
regulation that such release will further the conservation of the 
species. We explain our rationale for making our finding below.

Possible Adverse Effects on Wild and Captive-Breeding Populations

Wild Populations
    We know of no naturally occurring wild populations of black-footed 
ferrets throughout the historical range of the species (see 
``Historical Range'' above). The Service considers the ferret 
extirpated in the wild except for reintroduced populations (i.e., all 
ferrets in the wild are the result of reintroductions). We consider as 
surplus all ferrets used to establish populations at reintroduction 
sites that come from the captive-bred population or, occasionally, from 
self-sustaining reintroduced populations. If animals are translocated 
from other reintroduction

[[Page 33620]]

sites, only wild-born kits from self-sustaining reintroduced 
populations are considered for translocation into new or non-self-
sustaining reintroduction sites (Lockhart, pers. comm., 2000-2007, as 
cited in USFWS 2013a, p. 26, S. Larson, USFWS, pers. comm. April 22, 
Captive-Breeding Population
    In order to understand the effects of the proposed SWEPA on the 
captive population of ferrets, it is important to understand how the 
Service manages the black-footed ferret captive-breeding program (see 
``Captive Breeding'' above).
    In Arizona, we initially released 40 ferrets at AVEPA in 1996, 45 
at Espee Ranch in 2007 and six at Double O Ranch in 2016. As of 2019 we 
have released 466 ferrets at AVEPA, 99 at Espee, and 41 at Double O 
(AGFD 2016, p. 5; J. Cordova, AGFD, pers. comm., October 10, 2019).
    We would use ferrets from the captive-bred population or a self-
sustaining wild population to establish a population at reintroduction 
sites in the proposed SWEPA. In conformance with the Service's 
allocation process, we anticipate the release of 20 to 30 captive-
raised or wild-translocated ferrets at any reintroduction site during 
the first year of the project. Subsequent annual supplemental releases 
are expected until the population becomes self-sustaining.
    We anticipate no adverse effects on existing populations of 
ferrets, whether captive or wild, due to the removal of individuals 
from those populations for the purpose of reintroducing and 
establishing new populations in the proposed SWEPA. We base this 
conclusion on the purpose for and the management of the captive-bred 
population (see ``Captive Breeding'' above), the management of other 
sites to achieve and maintain self-sustaining status for recovery 
purposes, and the allocation process, which prioritizes the limited 
number of ferrets available for reintroduction.

Likelihood of Population Establishment and Survival

    In this section we address the likelihood that populations 
introduced into the proposed SWEPA will become established and survive 
in the foreseeable future.
Addressing Causes of Extirpation Within the Experimental Population 
    Investigating the causes for the extirpation of black-footed 
ferrets is necessary to understand whether we are sufficiently 
addressing threats to the species in the proposed SWEPA so that 
reintroduction efforts are likely to be successful. Ferrets depend on 
prairie dog populations for food, shelter, and reproduction. Historical 
ferret declines resulted from: (1) Widespread prairie dog poisoning; 
(2) adverse effects of plague on prairie dogs and ferrets; and (3) 
major conversion of habitat (see ``Threats/Causes of Decline'' above).
Widespread Poisoning of Prairie Dogs
    Poisoning of prairie dogs no longer occurs to the extent and 
intensity that it did historically; the current use of poison to 
control prairie dogs occurs in limited and selective ways. Although 
land-use and ownership patterns have not changed significantly since 
past poisoning campaigns, poisoning became less common in the 1970s 
because prairie dog populations had been reduced by over 90 percent and 
use of rodenticides became more closely regulated than it was 
historically (USFWS 2013a, pp. 49-51). State and Federal agencies have 
limited involvement in prairie dog control unless they pose a threat to 
human safety or health (e.g., plague transmission in an urban setting). 
Attitudes about control have also shifted to nonlethal methods. 
Translocation as a method of prairie dog control is becoming more 
common, while lethal control seems to be declining (Seglund et al. 
2006, p. 49). In addition, landowners and managers have expressed 
interest in managing prairie dogs, specifically for ferret 
reintroductions, as evidenced by the number of current and potential 
reintroduction sites (see ``Identified Reintroduction Sites'' below).
    Landowners and managers have used zinc phosphide as a registered 
rodenticide for prairie dog control since the 1940s (Erickson and Urban 
2004, p. 12). In the early 2000s, manufacturers started promoting use 
of the anticoagulant rodenticides chlorophacinone (Rozol[supreg]) and 
diphacinone (Kaput[supreg]). These chemicals pose a much greater risk 
than zinc phosphide of secondary poisoning to nontarget wildlife that 
prey upon prairie dogs, such as ferrets (Erickson and Urban 2004, p. 
85). In 2009, the U.S. Environmental Protection Agency (EPA) authorized 
use of Rozol[supreg] throughout much of black-tailed prairie dog range 
via a Federal Insecticide, Fungicide, and Rodenticide Act Section 3 
registration. EPA labeled Rozol[supreg] and Kaput-D[supreg] only for 
control of black-tailed prairie dogs, not Gunnison's, and the labels do 
not allow use in Arizona or the taking of ``endangered species.'' The 
EPA has also established additional restrictions through the Endangered 
Species Protection Bulletins that ban the use of Rozol[supreg] in 
ferret recovery sites. These bulletins are an extension of the 
pesticide label, and it is a violation of Federal and State law to use 
a pesticide in a manner inconsistent with the label.
    In Arizona, poisoning may occur on State, Federal, and private 
lands without a specific State permit. However, products registered for 
prairie dog control by the EPA require a pesticide applicators license, 
which an applicator can obtain only through a formal process with the 
Arizona Department of Agriculture (Underwood 2007, pp. 23-24). Federal 
agencies and the State closely regulate and manage poisoning, and the 
extent of poisoning has been extremely limited in area compared to 
historical poisoning, usually in developed areas and confined to 
specific needs. For example, from 2013 through 2018, Animal and Plant 
Health Inspection Service's (APHIS) Wildlife Services treated prairie 
dogs with zinc phosphide at three private properties totaling 56 acres 
of colonies, for livestock and property protection on pasture and 
farmland near rural communities (C. Carrillo, pers. comm. APHIS, 
October, 23, 2019). None of these treatments was in or near current or 
proposed reintroduction areas. Given the limited use of prairie dog 
poisons in Arizona and the number of landowners and managers willing to 
manage prairie dogs for ferrets, poisoning should not affect the 
establishment or success of reintroduced populations of ferrets.
Adverse Effects of Plague
    As previously noted, plague can adversely affect ferrets directly 
via infection and subsequent mortality, and indirectly by decimating 
prairie dogs, the ferret's prey. Management of plague has improved, 
including dusting prairie dog burrows with insecticide to control fleas 
and vaccinating ferrets, and the development of vaccines to prevent 
large-scale plague outbreaks in prairie dogs is underway. In Colorado, 
ferret survival significantly improved when researchers applied the 
insecticide deltamethrin as a prophylactic treatment to control fleas 
in prairie dog burrows (Seery et al. 2003, p. 443; Seery 2006, entire). 
Researchers are currently investigating the potential of vaccinating 
wild prairie dogs for plague via oral bait. This has the potential to 
limit plague cycles more effectively and economically than direct 
vaccination of ferrets, though we may need to employ both in some 
cases. Based on our experiences at various reintroduction sites, we 
think we can manage the threat from plague by monitoring, dusting, 
vaccinating, and maintaining more,

[[Page 33621]]

widely spaced reintroduction sites (USFWS 2013a, p. 78).
    In Arizona, plague management includes best management practices 
and adaptive management to respond to changing conditions and 
incorporating new techniques as we develop them (AGFD 2016, p. 19, 
appendices E and F). In addition, AGFD, the Service, and the U.S. 
Geological Survey recently began planning an intensive plague study for 
the AVEPA to determine whether plague is present at an enzootic level 
that current plague surveillance is not detecting (Rachel Williams, 
USFWS, pers. comm., October 16, 2019). Plague will be an ongoing 
challenge to ferret recovery, but with current management tools, 
promising new treatments, and the benefit of being able to establish 
widely spaced populations across the SWEPA, we will be able to manage 
the ferret at a landscape level.
Conversion of Habitat
    Currently, rangewide conversion of prairie dog habitat is not 
significant relative to historical levels, although it may affect some 
prairie dog populations locally (USFWS 2013a, pp. 24-25). We do not 
expect agricultural land conversion and urbanization to have a 
measurable effect on the current condition of ferrets at the species 
level (USFWS 2019, p. 56). In Arizona, agricultural development 
currently covers about 700,000 to 1.3 million ac (283,000 to 526,000 
ha) or about one to two percent of the landscape (U of A Cooperative 
Extension 2010; American Farmland Trust 2020) predominantly in central 
and southern Arizona, outside the range of the Gunnison's prairie dog. 
Within the range of Gunnison's prairie dog in Arizona, agricultural 
development affects 31,449 ac (12,727 ha), and urban development 
affects 78,673 ac (31,838 ha), both of which, combined, is less than 
one percent of the range of the Gunnison's prairie dog (Seglund 2006, 
p. 15). There are about 26 million acres of agricultural activity in 
Arizona in the form of pastures and rangeland for livestock grazing 
(USDA 2019; U of A 2010). These non-cultivated agricultural lands may 
represent habitat for the prairie dog and ferret in the State (Ernst et 
al. 2006, p. 91). Routine livestock grazing and ranching activities are 
largely compatible with maintaining occupied prairie dog habitat 
capable of supporting ferrets (USFWS 2013a, p. 20).
Reintroduction Expertise
    The Service and its partners have considerable experience 
establishing reintroduced black-footed ferret populations. Since 1991, 
we have initiated 30 ferret reintroduction projects, including 2 in 
Arizona (USFWS 2019, Table 3). While, these projects have had varying 
degrees of success, they have all contributed to our understanding of 
the species' needs and effective management toward establishing 
reintroduced populations. The Service and our partners continually 
apply adaptive management principles through monitoring and research to 
ensure that the best available scientific information is used to 
develop new tools (e.g., SPV), update strategies and protocols, and 
identify new reintroduction sites, to progress towards recovery (AGFD 
2016, p. 19).
    Since reintroductions began, we have developed and refined 
techniques in several areas. These include management and oversight of 
the captive-breeding program, veterinary care and animal husbandry 
(USFWS 2016, entire), advances in the preconditioning program (Biggins 
et al. 1998, entire; USFWS 2016, pp. 34-37), release techniques, and 
disease and plague management, including ferret vaccination programs at 
individual reintroduction sites. With respect to disease management, 
vector control (i.e., dusting and/or fipronil grain baits) and SPV use 
in concert with vigilant plague epizootic monitoring may be the most 
effective way to reduce the range-wide effects of plague (Abbott et al. 
2012, pp. 54-55; Tripp et al. 2017, entire). However, plague remains an 
ongoing issue (Scott et al. 2010, entire; Rohlf et al. 2014, entire), 
and we need considerable management inputs to maintain both the captive 
and reintroduced populations (USFWS 2019, p. 65).
    In Arizona specifically, we adapted our management and refined 
techniques to enhance reintroduction efforts. For example, when ferrets 
did not appear to be breeding at Aubrey Valley after 5 years of 
releases, AGFD modified their release strategies to incorporate pen 
breeding and springtime releases and documented wild-born kits the 
following year (AGFD 2016, p. 5). The Service also continually adapts 
and refines our plague monitoring and management. At Espee, for 
example, we learned plague was present only after we released ferrets 
despite AGFD's use of pre-release plague surveillance and management 
protocols. Subsequently, AGFD incorporated the latest disease 
monitoring protocols and adaptive management into its Management Plan 
(AGFD 2016, p. 19, appendices E and F). In addition, at Espee Ranch, 
AGFD is participating in trials of the experimental SPV, the results of 
which will contribute to both the national effort to deploy SPV in the 
field as well as our understanding of local plague conditions. Given 
the Service's 30 years of experience with reintroducing ferrets across 
their historical range and our 25 years in Arizona, development and 
refinement of management and reintroduction techniques, and ongoing 
adaptive management, we are likely to be successful in establishing and 
managing new populations of ferrets in the SWEPA.
Habitat Suitability
    The likelihood of establishing ferret populations largely depends 
on adequate habitat. Although there was a significant decline of 
prairie dog occupied habitat on non-Tribal lands in Arizona 
historically, there has been a 10-fold increase of occupied habitat 
since 1961 (Seglund 2006, p. 16). Outside of Navajo and Hopi land, 
Arizona currently has more than 108,000 ac (43,707 ha) of occupied 
prairie dog habitat (H. Hicks, AGFD, pers. comm., January 26, 2018), a 
portion of which is located on lands of the Hualapai Tribe. Lands of 
the Navajo Nation and the Hopi Tribe collectively may contain about 
250,000 ac (101,174 ha) of active prairie dog colonies (Johnson et al., 
2010, p. iv). With purposeful management, this amount and distribution 
of prairie dog occupied habitat would be able to support multiple 
ferret reintroduction sites.
    In addition to the statewide amount of habitat, individual 
reintroduction sites need to be of sufficient size to support 
reintroduced ferrets. Two sites in Arizona currently meet or have met 
the State Gunnison's prairie dog-occupied acreage criterion (5,540 
acres) to reintroduce ferrets, the AVEPA/Double O Ranch and Espee 
Allotment (AGFD 2016, p. 6). AGFD classifies both as Active MAs, where 
the State can release, manage, and monitor ferrets (AGFD 2016, p. 8). 
In 2018, the AVEPA/Double O Ranch contained about 65,500 ac (26,500 ha) 
of active prairie dog colonies and 264,000 ac (106,850 ha) of potential 
acreage (USFWS 2019, Table 3). This is enough acreage for Arizona to 
meet the habitat portion of the State guidelines for delisting. 
However, as explained below, we need multiple sites to guard against 
stochastic or catastrophic events at any given site. In addition to the 
two Active MAs, the AGFD has identified four Potential MAs. Arizona has 
a plan to provide appropriate management for the ferret and its habitat 
(AGFD 2016, entire). In addition, Arizona has a management plan to 
conserve and maintain viable prairie dog populations and the ecosystems 
they inhabit (Underwood

[[Page 33622]]

2007, entire). The acreage area criteria, along with implementation of 
management plans for viable prairie dog populations and ferrets and 
their habitats, will ensure that any sites selected for reintroduction 
have sufficient quantity and quality of habitat to support 
establishment of ferret populations.
Increased Prey Stability
    Prairie dog populations in Arizona have increased from historical 
lows in the 1960's, and the State is managing them for long-term 
viability. The potential for continued expansion of prairie dogs across 
Arizona through prairie dog conservation and disease management, 
coupled with past success of ferret reintroductions in Arizona and 
across the species' range, suggests that ferret-occupied areas can 
expand through additional reintroductions and dispersal. Reintroduction 
of ferrets in the larger proposed SWEPA would allow us to meet 
Arizona's ferret recovery goals and contribute to ferret recovery 
across their range.
    The Service and our partners have considerable experience 
reintroducing ferrets range-wide and in Arizona. We have criteria for 
selecting suitable reintroduction sites and developed protocols and 
plans to manage those sites. In Arizona, we have the quantity, quality, 
and distribution of habitat to support reintroductions. Additionally, 
the causes of extirpation of ferrets in Arizona have been or are being 
addressed; the wide-spread poisoning of prairie dogs is no longer 
occurring, the Service and partners continue to develop plague 
management techniques, and the conversion of habitat into cropland is 
not occurring at a significant scale. Lastly, the demonstrated success 
of existing reintroduced ferret populations in Arizona indicate that 
additional reintroduction efforts in the SWEPA will be successful in 
establishing and sustaining additional black-footed ferret populations, 
required for species recovery.

Effects of the SWEPA on Recovery Efforts for the Species

    The Service's recovery strategy for the black-footed ferret 
requires establishment of numerous, spatially disperse populations of 
ferrets within the range of all three prairie dog species to reduce the 
risk of stochastic events affecting multiple populations (e.g., 
plague), increase management options, and maintain genetic diversity 
(USFWS 2013a, Table 7) (see ``Recovery, Captive Breeding and 
Reintroduction Efforts to Date'' above). Delisting criteria for the 
species include 30 populations in 9 of 12 States within the species' 
historical range and distributed among the ranges of 3 prairie dog 
species (USFWS 2013a, p. 6). To implement this recovery strategy and 
achieve recovery criteria, additional successful reintroductions of 
ferrets are necessary (USFWS 2013a, p. 7), which establishment of the 
proposed SWEPA will facilitate.
    Participation by numerous partners across the ferret's former range 
is critical to achieve the ferret's delisting criteria of multiple 
spatially dispersed populations and maximize species redundancy, 
representation, and resiliency. To achieve this strategy, for each 
State in the historical range of the species, the Recovery Plan 
suggests recovery guidelines for the number of ferrets and prairie dog 
habitat acreages (proportional to the historical amount of prairie dog 
habitat) to contribute to meeting recovery criteria (USFWS 2013a, p. 
69). We intend the recovery guidelines by State to improve risk 
management and ensure equity of recovery responsibilities across State 
boundaries (USFWS 2013a, Table 8). Arizona has led ferret recovery 
efforts, providing one of the early ferret reintroduction sites and the 
first in a Gunnison's prairie dog population. Tribes have also played 
an important role in ferret recovery in several areas of the species' 
historical range by providing land for about 24 percent of the 
reintroduction sites rangewide (USFWS 2013a, p. 44; USFWS 2019, Table 
    The recovery plan's State guidelines for Arizona to contribute to 
ferret downlisting and delisting criteria are 74 free-ranging breeding 
adult ferrets on 17,000 ac (6,880 ha) of Gunnison's prairie dog-
occupied habitat, and 148 breeding adults on 34,000 ac (13,760 ha). The 
guidelines for New Mexico and Utah are 220 and 25 breeding adult 
ferrets for downlisting, respectively, and 440 and 50 breeding adults 
for delisting (USFWS 2013a, Table 8). Delisting criteria for the entire 
range include five ferret populations in colonies of both Gunnison's 
and white-tailed prairie dogs (USFWS 2013a, p. 6). About 27 percent of 
the Gunnison's prairie dog range occurs in Arizona (Seglund et al. 
2006, p. 70), so establishing additional ferret populations in 
Gunnison's prairie dog habitat within the SWEPA would contribute to 
meeting this criterion.
    Currently, there is only one population of ferrets in Arizona. As 
of 2013, we considered the AVEPA one of the four most successful 
reintroduced populations throughout the species' range; it had a 
population that exceeded the recommended downlisting criteria for 
Arizona and we considered it self-sustaining (USFWS 2013a, pp. 5, 22, 
77). However, the population declined significantly, for which we 
suspect that plague may be a cause. The proposed SWEPA will include all 
potential ferret habitat in Arizona and on participating Tribal lands, 
including Hualapai Tribal lands, a portion of Hopi Tribal lands, and 
Navajo Nation lands in Arizona, New Mexico, and Utah (see ``Proposed 
Experimental Population'' above). Establishing additional populations 
within the proposed SWEPA will reduce the vulnerability of extirpation 
of the species. Additionally, AGFD's proposed widely spaced 
reintroduction sites, and the potential for other reintroduction sites 
(e.g., on the Navajo Nation) will reduce the effects of localized or 
stochastic events on overall recovery efforts, by reducing the 
likelihood that all individuals or all populations would be affected by 
the same event. Reintroducing viable ferret populations on the Navajo 
Nation in the New Mexico and Utah portions of the Navajo Nation would 
not only aid in recovery of the species but also in meeting the 
recovery guidelines for those States.
    The significant threat of plague to ferret populations emphasizes 
the need for several spatially dispersed reintroduction sites across 
the widest possible distribution of the species' historical range 
(USFWS 2013a, p. 70), supporting the value of a statewide approach to 
reintroductions. Establishing the proposed SWEPA will facilitate ferret 
reintroduction across a large geographic area and will likely result in 
establishment of several populations that will persist over time, thus 
contributing to recovery of the species.

Actions and Activities That May Affect the Introduced Population

    Classes of Federal, State, Tribal, and private actions and 
activities that may currently affect black-footed ferret viability, 
directly or indirectly, across its range are urbanization, energy 
development, agricultural land conversion, range management, and 
recreational shooting and poisoning of prairie dogs (USFWS 2019, p. 
13). Actions and activities that affect prairie dogs may also 
indirectly affect ferrets given the ferret's dependency on prairie dogs 
as a food source and their burrows for shelter.
    In Arizona, land ownership within the range of Gunnison's prairie 
dog is approximately as follows: Tribal-49.05 percent; private-21.62 
percent; Federal-16.80 percent; State-12.53 percent; city/

[[Page 33623]]

county-0.01 percent (Seglund 2006, Table 3). Although urbanization may 
adversely affect local prairie dog colonies, effects across the range 
of the species in Arizona are not significant due to the small amount 
of urban land, and the distance of urban areas from ferret MAs. 
Similarly, the amount of oil and gas and other types of mineral 
exploration and extraction development covers less than one percent of 
the prairie dog range in Arizona (Underwood 2007, p. 10), and this 
development is not associated with ferret MAs. Solar and wind energy 
development has expanded in recent years but also comprises a very 
small part of the landscape. In Arizona, all solar power facilities are 
located in the southern and far western part of the State, outside the 
range of Gunnison's prairie dog (U.S. Energy Information Administration 
2020). To date, there have been a number of wind projects in the range 
of Gunnison's prairie dog, but none are currently constructed within 
ferret MAs, and the existing infrastructure of wind projects occupies 
less than 0.005 percent of the ferret's potential range (USFWS 2019, p. 
40). As discussed above, agricultural development affects less than one 
third of one percent of the range of Gunnison's prairie dog (Seglund 
2006, p. 16). We do not expect agricultural land conversion to have a 
measurable effect on the future condition of the ferret in Arizona 
based on a 20-year analysis (USFWS 2019, p. 56).
    There are about 26 million acres of rangeland, used predominantly 
for grazing, in Arizona across Tribal, private, Federal, and State land 
(USDA, 2019), and these lands represent potential habitat for both the 
prairie dog and ferret (Ernst et al. 2006, p. 91). Overgrazing in arid 
areas can alter ecosystem structure, which can affect prairie dogs by 
decreasing availability of forage and causing an increase in woody 
shrubs. Conversely, well-managed grazing can benefit prairie dog and 
other rodent populations by creating increases in shortgrass species 
(Norris 1950, p. 4; Smith 1958, p. 21; Koford 1958, pp. 66-67). Routine 
livestock grazing and ranching activities are largely compatible with 
maintaining occupied prairie dog habitat capable of supporting ferrets 
(USFWS 2013a, p. 20).
    Depending on intensity, recreational shooting of prairie dogs can 
negatively affect local prairie dog populations through direct 
mortality of individuals (Vosburgh and Irby 1998, entire; Keffer et al. 
2001, entire; Knowles 2002, pp. 14-15), with the resulting decrease in 
prey base negatively affecting ferrets, and it is likely this activity 
could occur on ferret reintroduction sites (Reeve and Vosburgh 2006, 
entire). Recreational shooting reduces the number of prairie dogs in a 
colony, thereby decreasing prairie dog density (Knowles 1988, p. 54), 
occupied acreage (Knowles and Vosburgh 2001, p. 12), and reproduction 
(Stockrahm and Seabloom 1979, entire). Recreational shooting also 
causes direct mortality to prairie dog-associated species such as 
ferrets (Knowles and Vosburgh 2001, p. 14; Reese and Vosburgh 2006, pp. 
120-121). Although incidental take of ferrets by prairie dog shooters 
is not documented to date, direct ferret mortality due to accidental 
shooting is possible. Lastly, recreational shooting of prairie dogs 
also contributes to the environmental issue of lead accumulation in 
wildlife food chains (Knowles and Vosburgh 2001, p. 15; Pauli and 
Buskirk 2007, entire). Killing large numbers of animals with lead 
bullets and not removing carcasses from the field may present 
potentially dangerous amounts of lead to scavengers and predators of 
prairie dogs, such as ferrets. Luckily, we have not documented ferret 
ingestion of lead to date (USFWS 2013a, p. 28). To address these 
recreational shooting conservation issues, AGFD implements prairie dog 
shooting closures on public lands from April 1 to June 30 to reduce 
potential effects on prairie dog reproduction (USFWS 2019, p. 29). In 
addition, in the event of prairie dog population declines in an active 
ferret MA for any reason, the AGFD Commission may close prairie dog 
hunting until the population recovers (AGFD 2016, p. 13).
    Poisoning of prairie dogs has the potential to occur within both 
Gunnison's and black-tailed prairie dog habitat and can affect ferrets 
through loss of prey, and inadvertent secondary poisoning for some 
poisons. In recent years, the extent of prairie dog poisoning has been 
closely regulated, limited in area, and confined to specific needs 
compared to historical poisoning. From 2013 through 2018 in Arizona, 
APHIS treated prairie dogs with zinc phosphide at three private 
properties, totaling 56 acres of colonies, for livestock and property 
protection on pasture and farmland near rural communities (C. Carrillo, 
pers. comm. APHIS, October 23, 2019). None of these treatments were in 
or near current or proposed ferret reintroduction areas.
    Certain activities associated with all of the aforementioned 
activities (prairie dog recreational shooting and poisoning) have the 
potential to result in incidental ferret fatality. For example, use and 
establishment of roads within prairie dog and ferret habitat may result 
in ferret road kills and increase human access for prairie dog shooting 
(Gordon et al. 2003, p. 12). However, we have no information to suggest 
that incidental fatalities have a significant effect on ferret 
population viability.
    When the Service originally established AVEPA, we determined 
existing and foreseeable land use practices within the AVEPA to be 
compatible with sustaining ferret viability (61 FR 11320, March 20, 
1996). These practices include: Grazing and related activities 
(including prairie dog control), big game hunting, prairie dog 
shooting, and the trapping of furbearers and predators. Other land uses 
include transportation and rights-of-way (e.g., for utilities). Our 
success reintroducing ferrets in the AVEPA over 25 years supports that 
finding. Similarly, in the Service's establishment of the statewide 
nonessential experimental population of ferrets in Wyoming, we found 
that land use activities currently occurring across that State, 
primarily livestock grazing and associated ranch management practices, 
recreation, residential development, and mineral and energy 
development, are compatible with ferret recovery and that there is no 
information to suggest that similar future activities would be 
incompatible with ferret recovery (80 FR 66821, October 30, 2015). 
Based on our previous success with other experimental populations in 
areas influenced by similar land use activities and actions, including 
the AVEPA within the proposed SWEPA, we conclude that the effects of 
Federal, State, and private actions and activities will not pose a 
substantial threat to ferret establishment and persistence within the 
SWEPA and that SWEPA establishment will benefit the conservation of 
black-footed ferrets.

Experimental Population Regulation Requirements

    Our regulations at 50 CFR 17.81(c) include a list of what we should 
provide in regulations designating experimental populations under 
section 10(j) of the ESA. We explain what our proposed regulations 
include and provide our rationale for those regulations below.

Means To Identify the Experimental Population

    Our regulations require that we provide appropriate means to 
identify the experimental population, which may include geographic 
locations, number of individuals to be released, anticipated movements, 
and other information or criteria.

[[Page 33624]]

Identifying the Location and Boundaries of the SWEPA
    The 40,905,350-ac SWEPA is located in the three States of Arizona, 
New Mexico, and Utah (see ``Proposed Experimental Population'' above), 
and we delineate the boundaries below in the figure titled ``Southwest 
Nonessential Experimental Population Area (SWEPA) for the black-footed 
ferret.'' These boundaries are based on various grasslands and parts of 
biotic communities in which grasslands are interspersed, with which 
prairie dogs are associated, including Plains and Great Basin 
Grassland, Great Basin Conifer Woodland, Great Basin Desertscrub, and 
Petrane Montane Conifer Forest biotic communities (AGFD 2016, pp. 8-10) 
(Brown et al. 1979, entire) and represent a 184 fold increase in area 
from the AVEPA (USFWS 2021, p. 7 Figure 2). Within the SWEPA are the 
sovereign Indian lands of the Hopi Tribe, Hualapai Tribe, and the 
Navajo Nation. State political subdivisions include portions of Apache, 
Cochise, Coconino, Gila, Graham, Mohave, Navajo, Pima, Pinal, Santa 
Cruz, and Yavapai Counties of Arizona; Cibola, McKinley, Rio Arriba, 
Sandoval, and San Juan Counties of New Mexico; and San Juan County, 
    The proposed SWEPA consists of two separate areas: (1) Northeast 
and northcentral Arizona, the southeast corner of Utah, and northwest 
New Mexico on the Navajo Nation, and (2) southeastern Arizona.
    The proposed SWEPA will encompass and replace the AVEPA. In 
addition, two areas enrolled in the programmatic SHA under certificates 
of inclusion, the Espee Allotment and Double O Ranch, would be within 
the SWEPA. Although this proposed experimental population designation 
can overlay SHAs, we contacted enrollees to assess interest in 
replacing their certificates of inclusion with this 10(j) rule. If we 
finalize this revised experimental population designation, we propose 
phasing out the SHA certificates of inclusion following finalization of 
the rule to allow for a transition for interested landowners. As a 
result, the Service proposes to conduct all future reintroductions of 
ferrets within the SWEPA under the proposed experimental population 
designation regulation.
Number of Anticipated Ferret Releases
    The number of ferrets we will release at a given reintroduction 
site depends on multiple variables and can vary significantly between 
sites. In the AVEPA, for example, AGFD released ferrets for 5 years 
before documenting wild reproduction, which is necessary for a site to 
become self-sustaining. We continued releasing ferrets until the 
population appeared to be self-sustaining, but then began to release 
ferrets again after 4 years when the population appeared to be 
faltering. In total, over a span of 24 years starting in 1996, the 
Service released 466 ferrets in the AVEPA. In addition, we released 99 
ferrets at Espee in a span of 3 years (2007 2009), and 41 at the Double 
O Ranch over 4 years starting in 2016. The Service anticipates 
initially releasing 20 to 30 ferrets at new reintroduction sites in the 
SWEPA, with the number of ferrets released subsequently similar to 
other sites in Arizona.
Actual or Anticipated Movements
    Understanding ferret movement patterns and distances will ensure 
accurate identification of ferrets associated with the SWEPA. 
Researchers have documented newly released captive-born ferrets 
dispersing up to 30 miles (49 km) (Biggins et al. 1999, p. 125), and 
wild-born ferrets more than 12 miles (20 km) (USFWS 2019, p. 7). AGFD 
first documented ferrets outside the AVEPA in 2011, 15 years after 
initial releases. In the years between the 2011 sightings and 2016, 
when the Service released ferrets onto the Double O Ranch, there were 
about 10 sightings outside of the AVEPA, with the farthest being about 
15 miles outside the AVEPA. These sightings were by AGFD personnel 
during surveys of selected areas and incidentally by area residents. 
While dispersal of ferrets will depend on variables such as competition 
within a given population and the availability of adjacent habitat, we 
would expect a pattern of ferret dispersal from new reintroduction 
sites in the SWEPA to be similar to those observed in the AVEPA. 
Outside of the proposed SWEPA, the closest current reintroduced 
population of ferrets is Coyote Basin, Utah, which is about 200 mi (320 
km) away, substantially greater than documented ferret dispersal 
distances. Therefore, we would consider any black-footed ferret found 
in the wild within the boundaries of the SWEPA part of the nonessential 
experimental population.
Identified Reintroduction Sites
    In the area of the proposed SWEPA under Arizona State jurisdiction, 
the current goal is to reintroduce ferrets into suitable habitat within 
three to five AGFD designated MAs (AGFD 2016, p. 6). We may consider 
additional locations if landowners are willing to host ferrets where 
suitable prairie dog occupied acreage exists, including on Tribal 
lands. If the Navajo Nation were to request to reintroduce ferrets on 
their lands, potential reintroduction sites could include the New 
Mexico or Utah portions of the Navajo Nation.
    Two sites in Arizona currently meet or have met the minimum 
Gunnison's prairie dog-occupied acreage requirement for a population of 
ferrets (AVEPA/Double O Ranch and Espee Ranch). Arizona's Federal and 
State public lands and Tribal and private lands currently support a 
large amount of grasslands with varying sizes of Gunnison's prairie dog 
colonies (AGFD 2016, Figure 1). Within the ferret's historical range in 
Arizona, the AGFD and Service have identified four additional potential 
reintroduction sites or Potential MAs, introduced in the prior 
``Proposed Experimental Population'' section and discussed further 
Existing Reintroduction Sites (Active MAs) Within the SWEPA
    (1) AVEPA/Double O Ranch--The AVEPA encompasses 221,894 ac (89,800 
ha) of private, Tribal, State, and Bureau of Land Management (BLM) 
managed lands and is located about 5 miles northwest of Seligman in 
Coconino, Yavapai, and Mohave Counties. The adjacent Double O Ranch 
encompasses 236,792 ac (95,828 ha) of private, State, and Forest 
Service (FS) managed lands south of the AVEPA. Together, these sites 
contain 264,016 ac (106,846 ha) of grasslands. AGFD mapped an average 
of 52,455 ac (21,228 ha) of Gunnison's prairie dog colonies in the 
AVEPA between 2007 and 2016 (AGFD 2016, p. 8) (H. Hicks, AGFD, pers. 
comm., January 26, 2018). In 2014 and 2016, respectively, Gunnison's 
prairie dogs occupied 7,074 and 6,313 known ac (2,863 and 2,555 ha) on 
Double O Ranch (AGFD 2016, p. 7; H. Hicks, AGFD, pers. comm., January 
26, 2018). Plague is likely present in the AVEPA.
    (2) Espee Ranch--The Espee Allotment encompasses 145,644 ac (58,941 
ha) of private and State lands about 17 miles northeast of Seligman, in 
Coconino County, Arizona. There are 139,255 ac (56,356 ha) of 
grasslands, of which Gunnison's prairie dogs occupied 3,228 known ac 
(1,306 ha) in 2014 (AGFD 2016, pp. 8 9). Plague is present on Espee 
Ranch and is the suspected reason for the lack of ferret observations 
despite multiple releases.
Future Potential Reintroduction Sites (Potential MAs) Within the SWEPA
    The remaining four areas described below do not currently meet the 
minimum necessary Gunnison's prairie

[[Page 33625]]

dog-occupied acreage to support ferrets. We would need active 
management, such as translocations of prairie dogs, dusting for plague, 
or administration of a plague vaccine (e.g., SPV), along with annual 
monitoring of prairie dog populations, to potentially meet the minimum 
acreage of occupied prairie dog habitat (AGFD 2016, p. 9).
    (1) Kaibab National Forest, Williams/Tusayan Ranger Districts--
These areas cover over 613,000 ac (248,078 ha) of National Forest 
System (NFS), military, private, and State managed lands surrounding 
the city of Williams in Coconino and Yavapai Counties. There were 
96,954 ac (39,237 ha) of grasslands with 4,984 ac (2,017 ha) of known 
Gunnison's prairie dog-occupied area in 2015 (AGFD 2016, p. 9).
    (2) CO Bar Ranch--This ranch encompasses 263,758 ac (106,741 ha) of 
private, State, BLM, and Tribal lands and is located about 24 miles 
north of Flagstaff in Coconino County. There were 184,815 ac (74,794 
ha) of grasslands with 870 ac (352 ha) of known Gunnison's prairie dog-
occupied area in 2015 (AGFD 2016, p. 9).
    (3) Petrified Forest National Park--This area encompasses 223,027 
ac (90,258 ha) of NPS, State, Tribal, BLM, and privately managed lands 
east of Holbrook in Navajo and Apache Counties. There were 214,135 ac 
(86,659 ha) of grasslands with 87 ac (35 ha) of known Gunnison's 
prairie dog-occupied area in 2015 (AGFD 2016, p. 10).
    (4) Lyman Lake--This area encompasses 316,958 ac (128,271 ha) of 
private, State, AGFD, BLM, and NFS lands south of St. Johns in Apache 
County. There were 273,227 ac (110,573 ha) of grasslands with 2,045 ac 
(828 ha) of known Gunnison's prairie dog-occupied area in 2015 (AGFD 
2016, p. 10).
Tribal Lands
    Forty-nine percent of the land within the range of Gunnison's 
prairie dog in Arizona is under Tribal ownership (Seglund et al. 2006, 
Table 3). The Navajo Nation is the largest owner of Gunnison's prairie 
dog habitat (Johnson et al. 2010, p. 6). Working with the Hopi Tribe, 
Hualapai Tribe, and Navajo Nation, we may be able to identify other 
potential sites for ferret reintroduction on their Tribal sovereign 
lands. All three Tribes have expressed interest in working with the 
Service and AGFD in ferret recovery (Hopi Tribe 2017, entire; Navajo 
Nation 2017, entire; Hualapai Tribe 2018, entire). The Hualapai and 
Hopi reservations and Hopi-owned ranches coincide entirely with 
Arizona, (i.e., their lands are wholly within the borders of the 
State), whereas the Navajo Nation also includes parts of the States of 
New Mexico and Utah, within which the Navajo Nation has sovereign 
authority to manage wildlife.
    We would need surveys of prairie dog populations on Tribal lands, 
in addition to other information such as incidence of plague, prior to 
considering these lands for ferret reintroduction. The Navajo Nation 
and Hopi Tribe, in collaboration with Natural Heritage New Mexico, 
conducted a remote survey of Gunnison's prairie dogs on the lands of 
both Tribes in 2010. This technique, using standard photo-interpretive 
techniques to identify disturbance in suitable habitat on digital 
orthophoto quarter quads, estimated the area of active Gunnison's 
prairie dog towns on the Navajo Nation and Reservation of the Hopi 
Tribe at 253,562 ac (102,615 ha) (Johnson et al. 2010, pp. iv, 18). As 
mentioned previously, we originally included some lands of the Hualapai 
Tribe when we designated the AVEPA, and the Tribe has worked 
cooperatively with AGFD on ferret recovery. The Hopi Tribe, while 
expressing interest in ferret recovery activities on some of their 
lands (e.g., ranches and part of their Reservation) requested excluding 
District 6 of their Reservation, pending review of this proposal by 
members of the Hopi Villages within District 6. If the Hopi Tribe, in 
consultation with the Hopi Villages, decides to include District 6 
within the proposed SWEPA, then we will revise the final rule 
Southeastern Arizona
    Black-tailed prairie dog habitat exists in southeastern Arizona 
(Cockrum 1960, p. 76). In 2008, the AGFD reintroduced this species into 
a small portion of its historical range via translocations from wild 
populations in New Mexico (Van Pelt 2009, p. 41, Figure 1). This new 
population occurs on the BLM-administered Las Cienegas National 
Conservation Area. Surveys in 2017 estimated a minimum of 135 black-
tailed prairie dogs occupied 19 ac (7.7 ha) (H. Hicks, AGFD, pers. 
comm., October 3, 2017). It would likely take many years to reach 
enough black-tailed prairie dog-occupied acreage with a stable 
population to support a reintroduction of ferrets. However, efforts to 
expand black- tailed prairie dog colony acreage would offer 
opportunities to re-create habitat for ferrets (USFWS 2013a, p. 51).

Is the proposed experimental population essential or nonessential?

    Essential experimental populations are those ``whose loss would be 
likely to appreciably reduce the likelihood of survival of the species 
in the wild'' (50 CFR 17.80(b)). The Service defines ``survival'' as 
the condition in which a species continues to exist in the future while 
retaining the potential for recovery (USFWS and NMFS 1998). Inherent in 
the definition of ``essential'' is the effect the potential loss of the 
experimental population would have on the species (49 FR 33893, August 
27, 1984).
    The ESA states that, prior to any release ``the Secretary must find 
by regulation that such release will further the conservation of the 
species'' (49 FR 33893, August 27, 1984). Reintroductions are, by their 
nature, experiments, the fate of which is uncertain. However, it is 
always our goal for reintroductions to be successful and contribute to 
recovery. The importance of reintroductions to recovery does not 
necessarily mean these populations are ``essential'' under section 
10(j) of the ESA. In fact, Congress' expectation was that ``in most 
cases, experimental populations will not be essential'' (H.R. 
Conference Report No. 835 supra at 34; 49 FR 33888, August 27, 1984). 
The preamble to our 1984 publication of implementing regulations 
reflect this understanding, stating that an essential population will 
be a special case and not the general rule (49 FR 33888, August 27, 
    In our final rule establishing the nonessential experimental 
population in Aubrey Valley, the Service found the AVEPA to be 
``nonessential'' because the captive-breeding population is both the 
secure source for all reintroductions, and the primary repository of 
genetic diversity for the species (61 FR 11320, March 20, 1996). We 
considered all reintroduced ferrets to be in excess to the captive 
population, and we could replace any reintroduced animals lost through 
captive breeding (61 FR 11323, March 20, 1996).
    The Service did not anticipate changing the nonessential 
designation for the AVEPA unless the experiment failed or until the 
ferret recovered (61 FR 11323, March 20, 1996). However, because we are 
proposing to replace the AVEPA through incorporation into the proposed 
SWEPA 10(j), an evaluation as to whether the new SWEPA experimental 
population is essential to the continued existence of the species in 
the wild is appropriate.
    As discussed above, we expect the proposed SWEPA to further the 
conservation of the species by contributing to the establishment of 
multiple, widespread populations that will persist over time, which 
contribute to achieving recovery goals for the species. However, we 
consider the

[[Page 33626]]

SWEPA nonessential because there are now a number of reintroduced 
ferret populations in the wild, across the range of the species, that 
provide redundancy in case of local extirpations. There are 14 active 
reintroduction sites across the historical range, with a minimum 
average of 340 breeding adult ferrets, and a minimum of 254 at the 4 
most successful reintroduction sites (Rocky Mountain Arsenal National 
Wildlife Refuge, Colorado; Conata Basin/Badlands, South Dakota; and 
Shirley Basin and Meeteetse, Wyoming) (USFWS 2019, Table 3). 
Additionally, captive-breeding efforts continue to support the 
establishment of more populations throughout the species' range. Loss 
of the SWEPA would not affect these remaining populations of ferrets in 
the wild.
    The ferret population in Arizona, while contributing incrementally 
to conservation in concert with other sites, is a relatively small 
portion of the total number and distribution of ferret populations 
needed for species recovery. The Recovery Plan's delisting criteria for 
ferrets calls for 30 or more populations, with at least 1 population in 
each of at least 9 of 12 States within the historical range of the 
species, and at least 5 populations within colonies of Gunnison's and 
white-tailed prairie dogs. About 27 percent of Gunnison's prairie dog 
range occurs in Arizona. This is about 9 to 14 percent of all prairie 
dog occupied habitat (i.e., the range of all 3 prairie dog species) 
(USFWS 2013a, p. 24). Arizona's relative recommended contribution of 
habitat to ferret delisting is about seven percent (USFWS 2013a, Table 
8, p. 77).
    The proposed SWEPA will further the recovery of the ferret by 
opening all suitable habitat in the defined SWEPA area to the 
establishment of multiple wild populations within the species' 
historical range. However, we conclude loss of reintroduced ferrets 
within the proposed area is not likely to appreciably reduce the 
likelihood of survival of the species in the wild. This is due to 
maintenance of the captive population, the number of reintroduction 
sites and established populations in the wild rangewide, and the 
expected incremental contribution of Arizona to the recovery of the 
ferret given Arizona has seven percent of the total range of all three 
prairie dog species. Therefore, as required by 50 CFR 17.81(c)(2), we 
determine the proposed SWEPA experimental population is not essential 
to the continued existence of the species in the wild, and we propose 
to designate the SWEPA experimental population as nonessential.

Management Restrictions, Protective Measures, and Other Special 

    We prefer applying the experimental population designation and 
regulations to the entire proposed SWEPA, because a single set of 
statutes and regulations and a single management framework would then 
apply to all lands, non-Federal and Federal, containing suitable ferret 
habitat within the designated SWEPA boundary. This approach would also 
extend regulatory assurances to all areas where ferrets could 
potentially establish, including the current properties covered by the 
SHA. There would be no significant differences between the terms and 
conditions of the SHA and 10(j) regulations in terms of how landowners 
operate their ranches with respect to ferret recovery.
    The Service will undertake SWEPA reintroductions in cooperation 
with AGFD, the Navajo Nation, Hopi Tribe, Hualapai Tribe, and other 
landowners. Existing management plans or those that wildlife managers 
develop in cooperation with us and other partners and stakeholders will 
guide management of ferret populations in the SWEPA (e.g., AGFD 2016).
    As discussed in the ``Actions and Activities that May Affect the 
Introduced Population'' section, Federal, State, Tribal, and private 
actions will not pose a substantial threat to ferret establishment and 
persistence in the proposed SWEPA. This is because land management 
activities, such as agricultural land conversion, recreational shooting 
of prairie dogs, poisoning of prairie dogs, urbanization, and energy 
development currently occurring or anticipated to occur at prospective 
reintroduction sites in Arizona are very limited in scope. In addition, 
as discussed in Addressing Causes of Extirpation within the 
Experimental Population Area above, we do not anticipate any change in 
prairie dog control efforts that would reduce prairie dog-occupied 
habitat to the extent that they would compromise the viability of any 
potential ferret population due to the low demand for poisoning and 
regulatory restrictions. We also base this conclusion on our experience 
with ferret reintroduction sites in Arizona over the past 25 years and 
elsewhere throughout the species' range. The best available information 
indicates that future range and ranching activities will remain 
compatible with ferret recovery because they do not limit essential 
behavior such as feeding, breeding, or sheltering. We base this 
assessment on our ferret reintroduction efforts at the AVEPA and Espee 
and Double O ranches, and other reintroduction sites throughout the 
range of the species (80 FR 66826, October 30, 2015).
    The AGFD, BLM, FS, NPS, Tribes, and private landowners manage sites 
with high potential for ferret establishment, and these areas receive 
protection through the following legal mechanisms:

Legal Mechanisms

    (1) Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 
et seq.) (FLPMA)--The BLM's mission is set forth under the FLPMA, which 
mandates that BLM manage public land resources for a variety of uses, 
such as energy development, livestock grazing, recreation, and timber 
harvesting, while protecting the natural, cultural, and historical 
resources on those lands. The BLM manages listed and sensitive species 
under guidance provided in the BLM Manual Section 6840--Special Status 
Species Management. The Manual directs BLM to conserve listed species 
and the ecosystems upon which they depend, ensure that all actions 
authorized or carried out by BLM comply with the ESA, and cooperate 
with the recovery planning and recovery of listed species. The BLM has 
experience in managing the ferret at four reintroduction sites in four 
States that occur at least in part on its lands. Therefore, we 
anticipate appropriate management by the BLM on any future ferret 
reintroduction sites that include BLM lands.
    (2) National Forest Management Act of 1976, as amended (16 U.S.C. 
1600 et seq.)--This law instructs the FS to strive to provide for a 
diversity of plant and animal communities when managing NFS lands. The 
FS identifies species listed as endangered or threatened under the ESA, 
including the ferret, as Category 1 species at risk based on rangewide 
and national imperilment. The FS has experience managing the ferret on 
one reintroduction site that occurs at least in part on NFS lands. 
Therefore, we anticipate appropriate management by the FS on any future 
ferret reintroduction sites that include NFS lands.
    (3) Organic Act of 1916, as amended (16 U.S.C. 1 4)--This law 
requires the NPS to conserve National Park resources, consistent with 
the established values and purposes for each park. In addition, the 
Organic Act instructs NPS ``to conserve the scenery and the natural and 
historical objects and the wildlife therein and to provide for the 
enjoyment of the same in such manner and by such means as will leave 
them unimpaired for the enjoyment of

[[Page 33627]]

future generations.'' NPS management policies require them to conserve 
listed species and to prevent detrimental effects on these species. The 
NPS has experience managing the ferret at two parks in South Dakota, 
where the NPS protects ferrets and their habitats from large-scale loss 
or degradation, per their mandate. Management of these reintroduction 
sites would need to continue regardless of the species' listing status. 
Therefore, we anticipate appropriate management by the NPS on any 
future ferret reintroduction sites that include NPS lands.
    (4) Navajo Nation law--Navajo Nation Code (NNC), Title 17, Chapter 
3, Subchapter 21, provides protections for black-footed ferrets. Title 
17 NNC section 507 makes it unlawful for any person to take wildlife on 
either of the following lists, as quoted from the code:
    (a) ``The list of wildlife indigenous to the Navajo Nation that 
they determine to be endangered by regulation of the Resources 
Committee of the Navajo Nation Council.'' Pursuant to Resources 
Committee Resolution RCF 014-91, they added the black-footed ferret to 
the list.
    (b) The U.S. lists of endangered native and foreign fish and 
wildlife, as set forth in section 4 of the Endangered Species Act of 
1973 as endangered or threatened species, to the extent that the 
Resources Committee adopts these lists.''
    Navajo Nation Code (17 NNC section 504) also makes it unlawful for 
any person to take or possess a fur-bearing animal, which includes 
ferrets by definition (17 NNC section 500), except as permitted by the 
Director, Navajo Nation Department of Fish and Wildlife.
    (5) Hopi Tribal Law--Tribal Ordinance 48 (Wildlife) documents the 
Tribe's exclusive jurisdiction to regulate and adjudicate all matters 
pertaining to wildlife found on the Hopi Reservation. All wildlife 
found on the Reservation, whether resident or migratory, native or 
introduced, is the property of the Hopi Tribe, and Tribal Law provides 
the times and manner of allowable take.
    (6) Arizona State Law--General provisions of Arizona Revised 
Statutes, title 17, protects all of Arizona's native wildlife, 
including federally listed threatened and endangered species.
    (7) Endangered Species Act--The ESA would continue to provide 
protection to ferrets through section 10 by requiring certain 
management entities to obtain an enhancement of survival permit from 
the Service under section 10(a)(1)(A) for any intentional taking of a 
ferret that is prohibited by section 9 of the ESA and not exempted 
through this rule. The authorities of section 6 of the ESA, 50 CFR 
17.21, 50 CFR 17.31, and 50 CFR 17.84(g) cover AGFD's management 
activities. Section 7(a)(1) of the ESA also requires all Federal 
agencies to use their authorities to further the purposes of the ESA.

Other Protections & Management Restrictions

    Other protections and management restrictions and measures in the 
proposed SWEPA would include:
    (1) Incidental take: Experimental population special rules contain 
specific prohibitions and exceptions regarding take of individual 
animals. These special rules are compatible with most routine human 
activities in the expected reestablishment area. Section 3(19) of the 
ESA defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct.'' Under 50 CFR 17.3, ``harass'' means an intentional or 
negligent act or omission that creates the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns that include, but are not limited to, 
breeding, feeding, or sheltering. And ``harm'' means an act that 
actually kills or injures wildlife, including significant habitat 
modification that actually kills or injures wildlife by significantly 
impairing essential behavioral patterns, including breeding, feeding, 
or sheltering. The regulations further define ``incidental take'' as 
take that is incidental to, and not the purpose of, the carrying out of 
an otherwise lawful activity. If we adopt the nonessential experimental 
population designation rule as proposed, it will allow most incidental 
take of ferrets in the experimental population area, provided the take 
is unintentional and not due to negligent conduct. However, if there 
were evidence of intentional take, we would refer the matter to the 
appropriate law enforcement entities for investigation. This is 
consistent with regulations for areas currently enrolled in the SHA and 
in the AVEPA where we do not allow intentional take.
    (2) Special handling: In accordance with 50 CFR 17.21(c)(3), any 
employee or agent of the Service or of a State wildlife agency may in 
the course of their official duties, handle ferrets to aid sick or 
injured ferrets, salvage dead ferrets, and conduct other activities 
consistent with 50 CFR 17.84(g), their section 6 work plan, and 50 CFR 
17.31. Employees or agents of other agencies would need to acquire the 
necessary permits from the Service for these activities.
    (3) Arizona promulgation of regulations and other management for 
the conservation of the ferret as well as other species that, in turn, 
would benefit ferret recovery: For example, the AGFD includes the 
ferret on the Species of Greatest Conservation Need Tier 1A (AGFD 2012, 
p. 216). The list provides policy guidance on management priorities 
only, not legal or regulatory protection. The State also implements 
prairie dog shooting closures on public lands from April 1 to June 30.
    (3) Coordination with landowners and land managers: We discussed 
this proposed rule with potentially affected State and Federal 
agencies, Tribes, local governments, private landowners, and other 
stakeholders in the expected SWEPA. These agencies, landowners, and 
land managers have indicated either support for, or no opposition to, 
the proposed revision to the AVEPA. In advance of our developing the 
original rule for AVEPA, the AGFD determined that designation of a 
nonessential experimental population was necessary to achieve landowner 
support to make a ferret reintroduction project viable (AGFD 2106, p. 
2; 61 FR 11325, March 20, 1996). To receive the same public support for 
their Management Plan, the AGFD proposed a statewide nonessential 
experimental designation for the ferret (AGFD 2016, p. 2).
    (5) Public awareness and cooperation: We will inform the public of 
the importance of the SWEPA for the recovery of the ferret through this 
proposed rule and associated public meetings, if requested. The 
replacement of the AVEPA to establish the SWEPA under section 10(j) of 
the ESA as a nonessential experimental population would increase 
reintroduction opportunities and provide greater flexibility in the 
management of the reintroduced ferret. The nonessential experimental 
population designation will facilitate cooperation of the State, 
Tribes, landowners, and other interests in the affected area.
    (6) Potential effects to other species listed under the ESA: There 
are four federally listed species with distributions that overlap the 
proposed SWEPA and with habitat requirements that could overlap the 
grassland habitats that support prairie dogs (Table 1). However, we 
have not documented any of these species in current or potential ferret 
reintroduction sites and/or these species are unlikely to occur or 
compete for resources. We do not expect ferret reintroduction efforts 
to result in adverse effects to these species.

[[Page 33628]]

         Table 1--Federally Listed Species in the Proposed SWEPA
                                              Current status in Arizona
                  Species                           under the ESA
Mexican wolf (Canis lupus baileyi)........  Nonessential experimental.
California condor (Gymnogyps                Nonessential experimental,
 californianus).                             Endangered.
Northern aplomado falcon (Falco femoralis   Nonessential experimental.
Pima pineapple cactus (Coryphantha scheeri  Endangered.
 var. robustispina).

Measures To Isolate or Contain the Experimental Population From Natural 
    There are no naturally occurring wild populations of black-footed 
ferrets. The ferret is extirpated throughout its historical range, 
including in Arizona, New Mexico, and Utah, with the exception of 
reintroduced populations (USFWS 2017, entire) (see ``Historical Range'' 
above). Therefore, we do not need any measures to isolate or contain 
reintroduced ferrets in the SWEPA from natural populations.

Review and Evaluation of the Success or Failure of the SWEPA

    Monitoring is a required element of all ferret reintroduction 
projects. Reintroduction projects will conduct the three following 
types of monitoring:
    (1) Reintroduction Effectiveness Monitoring: Reintroduction 
partners will monitor ferret population demographics and potential 
sources of fatality, including plague, annually for 5 years following 
the last release using spotlight surveys, snow tracking, other visual 
survey techniques, or possibly radio-telemetry of some individuals 
following AGFD's management plan (2016) or similar procedures 
identified in a management plan developed for a specific reintroduction 
site. Thereafter, partners will complete demographic surveys 
periodically to track population status. Surveys will incorporate 
methods to monitor breeding success and long-term survival rates, as 
appropriate. The Service anticipates that AGFD and/or other 
participating partners will conduct monitoring, and they will include 
monitoring results in their annual reports.
    (2) Donor Population Monitoring: We will acquire ferrets from the 
captive- breeding population, or partners may translocate ferrets from 
another viable reintroduction site. The Service and our partners manage 
ferrets in the captive-breeding population in accordance with the AZA 
SSP[supreg] (Graves et al. 2018, entire). The AZA SSP[supreg] Husbandry 
Manual provides up-to-date protocols for the care, propagation, 
preconditioning, and transportation of captive ferrets, and all 
participating captive- breeding facilities use it.
    The Service may also translocate ferrets from other reintroduction 
sites, provided their removal will not negatively affect the extant 
population and appropriate permits are issued in accordance with 
current regulations (50 CFR 17.22) prior to their removal. Partners 
will conduct population monitoring following any removals for 
translocation under guidance of the Service-approved management plan 
for the donor site.
    (3) Monitoring Effects to Other Listed Species and Critical 
Habitat: We do not expect adverse effects to other federally listed 
species or critical habitat (see ``Other Protections and Management 
Restrictions'' number 6, above).


    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), we find 
that releasing ferrets into the proposed SWEPA will further the 
conservation of the species and that these reintroduced populations are 
not essential to the continued existence of the species.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' (59 FR 
34270, July 1, 1994), we will seek the expert opinion of at least three 
appropriate independent specialists regarding scientific data and 
interpretations contained in this proposed revision. We will send 
copies of this proposed revision to the peer reviewers immediately 
following publication in the Federal Register. The purpose of such 
review is to ensure we based our decisions on scientifically sound 
data, assumptions, and analysis. Accordingly, the final decision may 
differ from this proposal.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.) as amended by the 
Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 
U.S.C. 601 et seq.

    Under these acts, whenever a Federal agency is required to publish 
a notice of rulemaking for any proposed or final rule or revision to a 
rule, it must prepare, and make available for public comment, a 
regulatory flexibility analysis that describes the effect of the action 
on small entities (small businesses, small organizations, and small 
government jurisdictions). However, these acts require no regulatory 
flexibility analysis if the head of an agency certifies that the action 
will not have a significant economic impact on a substantial number of 
small entities. The SBREFA amended the Regulatory Flexibility Act to 
require Federal agencies to provide a statement of the factual basis 
for certifying that an action will not have a significant economic 
impact on a substantial number of small entities. We are certifying 
that this revision will not have a significant economic effect on a 
substantial number of small entities. The following discussion explains 
our rationale.
    The affected area includes release sites in Arizona, lands of the 
Navajo Nation in Arizona, New Mexico, and Utah, and adjacent areas into 
which ferrets may disperse, which over time could include significant 
portions of the proposed SWEPA. Because of the regulatory flexibility 
for Federal agency actions provided by the nonessential experimental 
designation and the exemption for incidental take in the special rule, 
this revision is not expected to have significant effects on any 
activities on Federal, State, Tribal, or private lands in the revised 
area. Concerning section 7(a)(2), we treat the

[[Page 33629]]

population as proposed for listing, and do not require Federal action 
agencies to consult with us on their activities. Section 7(a)(4) 
requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a species proposed for listing. However, because a 
nonessential experimental population is, by definition, not essential 
to the survival of the species, we will likely never require a 
conference for the ferret populations in the SWEPA. Furthermore, the 
results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities. In 
addition, section 7(a)(1) requires Federal agencies to use their 
authorities to carry out programs to further the conservation of listed 
species, which would apply on any lands in the revised area. As a 
result, and in accordance with these regulations, some modifications to 
proposed Federal actions in the SWEPA may occur to benefit the ferret, 
but we do not expect implementing of these regulations to halt or 
substantially modify proposed projects.
    This revision would include the same authorization provided in the 
AVEPA for incidental take of the ferret but over a larger landscape, 
the SWEPA. The regulations implementing the ESA define ``incidental 
take'' as take that is incidental to, and not the purpose of, the 
carrying out of an otherwise lawful activity such as agricultural 
activities and other rural development, camping, hiking, hunting, 
vehicle use of roads and highways, and other activities that are in 
accordance with Federal, Tribal, State, and local laws and regulations. 
The proposed rule would not authorize intentional take for purposes 
other than authorized data collection or recovery purposes. Intentional 
take for research or recovery purposes would require a section 
10(a)(1)(A) recovery permit under the ESA.
    The principal activities on private property in or near the revised 
nonessential experimental population area are livestock grazing and 
associated ranch management practices (e.g., fencing, weed treatments, 
water developments, and maintenance). Ferret presence would not affect 
these land uses because there would be no new or additional economic or 
regulatory restrictions imposed upon States, non-Federal entities, or 
members of the public due to the presence of the ferret, and Federal 
agencies would only have to comply with sections 7(a)(1) and 7(a)(4) of 
the ESA in these areas. Therefore, we do not expect this rulemaking to 
have any significant adverse impacts to activities on private lands in 
the proposed SWEPA.

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

    In accordance with this act:
    (1) This proposed revision will not ``significantly or uniquely'' 
affect small governments because they would not place additional 
requirements on any city, county, or other local municipalities. The 
Service determined and certifies under this act, that it will not 
impose a cost of $100 million or more in any given year on local or 
State governments or private entities. Therefore, this act does not 
require a Small Government Agency Plan.
    (2) This proposed rule is not a ``significant regulatory action'' 
under this act; it will not produce a Federal mandate of $100 million 
or more in any year. The revised nonessential experimental population 
area for the ferret would not impose any additional management or 
protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with E.O. 12630, the proposed revision does not have 
significant takings implications. It would allow for the take, as 
defined in the ESA, of reintroduced ferrets when such take is 
incidental to an otherwise legal activity, such as livestock grazing, 
agriculture, recreation (e.g., off-highway vehicle use), and other 
activities that are in accordance with Federal, State, and local laws 
and regulations. Therefore, the revision of the AVEPA to encompass a 
larger area, the proposed SWEPA, would not conflict with existing or 
proposed human activities or hinder public land use.
    This order does not require a takings implication assessment 
because this proposed rule: (1) Will not effectively compel a property 
owner to suffer a physical invasion of property, and (2) will not deny 
economically beneficial or productive use of the land. The revision 
would substantially advance a legitimate government interest 
(conservation and recovery of a listed species) and would not present a 
barrier to reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with E.O. 13132, we have considered whether this 
proposed revision has significant federalism effects and determined we 
do not need to conduct a federalism assessment. It would not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. In keeping 
with Department of the Interior policy, we requested information from 
and coordinated development of this proposed revision with the affected 
resource agencies. Achieving the recovery goals for this species would 
contribute to its eventual delisting and its return to State 
management. We do not expect any intrusion on State administration or 
policy, change in roles or responsibilities of Federal or State 
governments, or substantial direct effect on fiscal capacity. The 
special rule operates to maintain the existing relationship between the 
State and the Federal Government, and we will implement it in 
coordination with the State of Arizona. Therefore, this proposed rule 
does not have significant federalism effects or implications to warrant 
preparation of a Federalism Assessment under the provisions of E.O. 

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collection of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has 
previously approved the information collection requirements associated 
with reporting the taking of experimental populations (50 CFR 17.84) 
and assigned control number 1018-0095 (expires 09/30/2023). We may not 
collect, or sponsor, and may not require you to respond to a collection 
of information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 

    In compliance with all provisions of the NEPA, the Service has 
analyzed the impact of this proposed rule. Based on this analysis and 
any new information resulting from public comment on the proposed 
action, we will determine if there are any significant impacts or 
effects caused by this rule. In cooperation with the AGFD, the Hopi 
Tribe, Hualapai Tribe, and the Navajo Nation, we have prepared a draft 
environmental assessment on this proposed action and have made it 
available for public inspection online at

[[Page 33630]]

<http://www.regulations.gov> or <http://www.fws.gov/southwest/es/arizona/>. We solicit comments on the draft EA as set forth above in 

Government-to-Government Relationships With Tribes

    In accordance with the Executive Memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951, May 4, 1994), E.O. 13175 (65 FR 67249, 
November 9, 2000), and the Department of the Interior Manual Chapter 
512 DM 2, we have considered possible effects of the proposed revision 
on federally recognized Indian Tribes. We determined that the proposed 
SWEPA overlaps or is adjacent to Tribal lands. Potential reintroduction 
sites identified in this revision, the CO Bar Ranch and Petrified 
Forest National Park, are near or adjacent to Tribal lands, as is the 
existing AVEPA where a reintroduced ferret population exists. We 
offered government-to-government consultation to nine Tribes: The 
Havasupai, Hopi, Hualapai, San Carlos Apache, San Juan-Southern Paiute, 
White Mountain Apache, and Yavapai-Prescott Tribes, Navajo Nation, and 
the Pueblo of Zuni. We met with the Hualapai, Hopi, and White Mountain 
Apache Tribes and the Navajo Nation about the proposed revision. 
Participation in ferret recovery is voluntary. If suitable habitat for 
ferret recovery is available on their lands, Tribes may choose either 
not to participate, or to participate through authorities under section 
10(j), section 10(a)(1)(A), or the SHA (USFWS 2013b, entire). If we 
introduce ferrets on non-Tribal lands adjacent to Tribal lands and they 
disperse onto Tribal lands, the aforementioned authorities will provide 
a more relaxed, flexible regulatory situation under the ESA through 
allowances for incidental take.

Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (E.O. 13211)

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. We do not expect this 
proposed rule to have a significant effect on energy supplies, 
distribution, and use. Because this action is not a significant energy 
action, this order does not require a Statement of Energy Effects.

Clarity of This Regulation

    E.O. 12866, E.O. 12988, and Presidential Memorandum of June 1, 
1998, require the Service to write all actions in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. Your comments about 
this proposed revision to the 1996 final rule should be as specific as 
possible. For example, you should identify the numbers of the sections 
and paragraphs that are not clear, the sections or sentences that are 
too long, or the sections where you feel lists and tables would be 

References Cited

    A complete list of all references cited in this proposed rule is 
available at http://www.regulations.gov at Docket Number FWS-R2-ES-
2020-0123, or upon request from the Arizona Ecological Services Field 
Office (see ADDRESSES).


    The primary authors of this proposed rule are staff members of the 
Service's Arizona Ecological Services Field Office (see ADDRESSES and 

Signing Authority

    The Director, U.S. Fish and Wildlife Service, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the U.S. Fish and Wildlife Service. Martha 
Williams, Principal Deputy Director Exercising the Delegated Authority 
of the Director, U.S. Fish and Wildlife Service, approved this document 
on June 14, 2021, for publication.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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


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

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

2. Amend Sec.  17.11(h) by revising the entries for ``Ferret, black-
footed'' under ``MAMMALS'' in the List of Endangered and Threatened 
Wildlife to read as follows:

Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

                                                                                              Listing citations
           Common name                Scientific name        Where listed         Status       and  applicable
                                                  * * * * * * *
Ferret, black-footed.............  Mustela nigripes....  Wherever found......            E   32 FR 4001, 3/11/
                                                                                              1967; 35 FR 8491,
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of WY            XN   56 FR 41473, 8/21/
                                                          (Shirley Basin/                     1991; 50 CFR
                                                          Medicine Bow                        17.84(g).\10j\
                                                          Management Area);
                                                          see Sec.
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of SD            XN   59 FR 42682, 8/18/
                                                          (Conata Basin/                      1994; 50 CFR
                                                          Badlands                            17.84(g).\10j\
                                                          Area); see Sec.
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of MT            XN   59 FR 42696 8/18/
                                                          (Northcentral                       1994; 50 CFR
                                                          Montana                             17.84(g).\10j\
                                                          Area); see Sec.

[[Page 33631]]

Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of AZ,           XN   61 FR 11320, 3/20/
                                                          NM, UT (Southwest                   1996;
                                                          Experimental                       [Federal Register
                                                          Population Area),                   CITATION OF FINAL
                                                          see Sec.                            RULE]; 50 CFR
                                                          17.84(g)(9)(iv)).                   17.84(g).\10j\
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of CO,           XN   63 FR 52824, 10/1/
                                                          UT (Northwestern                    1998; 50 CFR
                                                          Colorado/                           17.84(g).\10j\
                                                          Northeastern Utah
                                                          Population Area),
                                                          see Sec.
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of SD            XN   65 FR 60879, 10/13/
                                                          (Cheyenne River                     2000; 50 CFR
                                                          Sioux Tribe                         17.84(g).\10j\
                                                          Area), see Sec.
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (parts of SD            XN   68 FR 26498, 5/16/
                                                          (Rosebud Sioux                      2003; 50 CFR
                                                          Reservation                         17.84(g).\10j\
                                                          Population Area),
                                                          see Sec.
Ferret, black-footed.............  Mustela nigripes....  U.S.A. (most of WY             XN   80 FR 66821, 10/30/
                                                          (Wyoming                            2015; 50 CFR
                                                          Experimental                        17.84(g).\10j\
                                                          Population Area),
                                                          see Sec.
                                                  * * * * * * *

3. Amend Sec.  17.84(g) by revising paragraphs (g)(1), (g)(6)(iv), and 
(g)(9)(iv) to read as set forth below and removing the fourth map 
(depicting the Aubrey Valley Experimental Population Area) and adding 
in its place the map shown below:

Sec.  17.84   Special rules--vertebrates.

* * * * *
    (g) * * *
    (1) The black-footed ferret populations identified in paragraphs 
(g)(9)(i) through (viii) of this section are nonessential experimental 
populations. We will manage each of these populations, and each 
reintroduction site in the Southwest and Wyoming nonessential 
experimental populations, in accordance with their respective 
management plans.
* * * * *
    (6) * * *
    (iv) Report such taking in the Southwest Experimental Population 
Area (SWEPA) to the Field Supervisor, Ecological Services, U.S. Fish 
and Wildlife Service, Phoenix, Arizona (telephone: 602-242-0210).
* * * * *
    (9) * * *
    (iv) We consider the Southwest Experimental Population Area (SWEPA) 
to be the area shown on a map following paragraph (g)(12) of this 
section. The SWEPA includes the core recovery areas for this species in 
Arizona. The boundary of the northern section of the SWEPA is those 
parts of Apache, Coconino, Gila, Mohave, Navajo, and Yavapai Counties, 
Arizona, that include the northern area as delineated on the map, 
excluding Hopi District 6. The northern section also includes portions 
of Cibola, McKinley, Rio Arriba, Sandoval, and San Juan Counties, New 
Mexico; and San Juan County, Utah. The boundary of the southern section 
of the SWEPA is those parts of Cochise, Pima, Pinal, Graham, and Santa 
Cruz Counties, Arizona, that include the southern area as delineated on 
the map. After the first breeding season following the first year of 
black-footed ferret release, we will consider any black-footed ferret 
found in the SWEPA as part of the nonessential experimental population. 
We would not consider a black-footed ferret occurring outside of the 
Arizona, New Mexico, and Utah portions of the SWEPA a member of the 
nonessential experimental population, and we may capture it for genetic 
testing. We may dispose of the captured animal 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.
* * * * *

[[Page 33632]]


* * * * *

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics, Joint Administrative Operations, U.S. Fish 
and Wildlife Service.
[FR Doc. 2021-12991 Filed 6-24-21; 8:45 am]