[Federal Register Volume 68, Number 95 (Friday, May 16, 2003)]
[Rules and Regulations]
[Pages 26498-26510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12199]



[[Page 26498]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI60


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION: 

Background

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

[[Page 26499]]

may be directly translocated to the reintroduction site.
    2. Biological: The black-footed ferret is a member of the Mustelid 
or weasel family; has a black facemask, black legs, and a black-tipped 
tail; is nearly 60 centimeters (2 feet) in length; and weighs up to 1.1 
kilograms (2.5 pounds). It is the only ferret species native to North 
America. The historical range of the species, based on specimen 
collections, extends over 12 western States (Arizona, Colorado, Kansas, 
Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, 
Texas, Utah, and Wyoming) and the Canadian Provinces of Alberta and 
Saskatchewan. Prehistoric evidence indicates that ferrets once occurred 
from the Yukon Territory in Canada to Mexico and Texas (Anderson et 
al., 1986).
    Black-footed ferrets depend almost exclusively on prairie dog 
colonies for food, shelter, and denning (Henderson et al., 1969, 
updated 1974; Forrest et al., 1985). The range of the ferret coincides 
with that of prairie dogs (Anderson et al., 1986), and ferrets with 
young have been documented only in the vicinity of active prairie dog 
colonies. Historically, black-footed ferrets have been reported in 
association with black-tailed prairie dog (Cynomys ludovicianus), 
white-tailed prairie dog (Cynomys leucurus), and Gunnison's prairie dog 
(Cynomys gunnisoni) towns (Anderson et al., 1986).
    Significant reductions in both prairie dog numbers and distribution 
occurred during the last century due to widespread poisoning of prairie 
dogs, the conversion of native prairie to farmland, and outbreaks of 
sylvatic plague, particularly in the southern portions of the ranges of 
several species of prairie dog in North America. Sylvatic plague 
arrived from Asia in approximately 1900 (Eskey and Haas, 1940). It is 
an exotic disease foreign to the evolutionary history of prairie dogs, 
which have little or no immunity to it. Black-footed ferrets also are 
highly susceptible to sylvatic plague (Williams et al., 1991 and 
Williams et al., 1994). This severe reduction in the availability of 
their principal prey species, in combination with other factors such as 
secondary poisoning from toxicants ingested by prairie dogs, resulted 
in the near extinction of the black-footed ferret in the wild by the 
early 1970s (U.S. Fish and Wildlife Service, 1988).
    In 1974, a remnant wild population of ferrets in South Dakota, 
originally discovered in 1964, abruptly disappeared (Henderson et al., 
1969, updated 1974). As a result, we believed the species to be 
extinct. However, in 1981, a small population was discovered near 
Meeteetse, Wyoming (Schroeder and Martin, 1982). In 1985-86, the 
Meeteetse population declined to only 18 animals due to an outbreak of 
sylvatic plague and canine distemper (U.S. Fish and Wildlife Service, 
1988). Following this critical decline, the remaining individuals were 
taken into captivity in 1986-1987 to serve as founders for a captive 
propagation program. Since that time, captive-breeding efforts have 
been highly successful and have facilitated ferret reintroductions over 
a broad area of formerly occupied range. Today, the captive population 
of juveniles and adults annually fluctuates between 300 and 600 animals 
depending on time of year, yearly reproductive success, and annual 
mortalities. The captive ferret population is currently divided among 
six captive-breeding facilities throughout the United States and 
Canada, with a small number on display for educational purposes at 
several facilities. Also, 65 to 90 ferrets are located at several 
field-based captive-breeding sites in Arizona, Colorado, Montana, and 
New Mexico.
    3. Recovery Goals/Objectives: The recovery plan for the black-
footed ferret (U.S. Fish and Wildlife Service, 1988) contains the 
following recovery objectives for reclassification of the species from 
endangered to threatened:
    (a) Increasing the captive population of ferrets to 200 breeding 
adults by 1991 (achieved);
    (b) Establishing a prebreeding population of 1,500 free-ranging 
breeding adults in 10 or more different populations, with no fewer than 
30 breeding adults in each population by the year 2010 (ongoing); and,
    (c) Encouraging the widest possible distribution of reintroduced 
animals throughout their historical range (ongoing).
    Although several reintroduction efforts have occurred throughout 
the ferret's range, populations may have become self-sustaining at only 
one site in South Dakota (Lockhart, Black-footed Ferret Coordinator, 
pers. comm. 2002).
    We can reclassify the black-footed ferret from endangered to 
threatened status when the recovery objectives listed above have been 
achieved, assuming that the mortality rate of established populations 
remains at or below a rate at which new populations become established 
or increase. We have been successful in rearing black-footed ferrets in 
captivity, and, in 1997, we reached captive-breeding program 
objectives.
    In 1988, we divided the single captive population into three 
subpopulations to avoid the possibility of a catastrophic event (e.g., 
contagious disease) eliminating the entire captive population. 
Additional breeding centers were added later, and presently there are 
six separate subpopulations in captivity. Current recovery efforts 
emphasize the reintroduction of animals back into the wild from the 
captive source stock. Surplus individuals produced in captivity are now 
available for use in reintroduction areas.
    4. Reintroduction Sites: The Service, in cooperation with western 
State and Federal agencies, Tribal representatives, and conservation 
groups, evaluates potential black-footed ferret reintroduction sites 
and has previously initiated ferret reintroduction projects at several 
sites within the historical range of the black-footed ferret. The first 
reintroduction project occurred in Wyoming in 1991, and subsequent 
efforts have taken place in South Dakota and Montana in 1994, Arizona 
in 1996, a second effort in Montana in 1997, Colorado/Utah in 1999, a 
second site in South Dakota in 2000, and Mexico in 2001. The Service 
and the Black-footed Ferret Recovery Implementation Team (comprising 27 
State and Federal agencies, Native American tribes, and conservation 
organizations) have identified the Rosebud Sioux Reservation 
(Reservation) as a high-priority black-footed ferret reintroduction 
site due to its extensive black-tailed prairie dog habitat and the 
absence of sylvatic plague (Black-footed Ferret Recovery Implementation 
Team, 2000).
    In the early 1990s, the Bureau of Indian Affairs (1995) estimated 
the acreage of prairie dog colonies on Rosebud Tribal Trust lands at 
18,000 hectares (ha) (45,000 acres (ac)). In the mid-1990s, the Tribe 
evaluated a black-footed ferret reintroduction effort and completed 
some of the activities (i.e., habitat evaluations) necessary to begin 
such reintroduction efforts. In 2001, the Tribe began additional 
activities to work toward ferret reintroduction and has worked with the 
Service to gather information necessary to establish an NEP designation 
for any ferret reintroductions that may occur.
    (a.) Rosebud Sioux Reservation Experimental Population 
Reintroduction Area: The area designated as the Rosebud Sioux 
Reservation Black-footed Ferret Experimental Population Area 
(Experimental Population Area) overlays all of Gregory, Mellette, Todd, 
and Tripp Counties in South Dakota. Any black-footed ferret found 
within these four counties will be considered part of an NEP. Within 
the Experimental Population Area, the primary

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

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    The Tribe will develop specific reintroduction plans and submit 
them in a proposal to the Service as part of an established, annual 
black-footed ferret allocation process. Ferret reintroduction 
cooperators submit proposals by mid-March of each year, and the Service 
makes preliminary allocation decisions (numbers of ferrets provided to 
specific projects) by May. Proposals submitted to the Service include 
updated information on habitat, disease, project/ferret status, 
proposed reintroduction and monitoring methods, and predator 
management. In this manner, the Service and reintroduction cooperators 
evaluate the success of the prior year's efforts and apply current 
knowledge to various aspects of reintroduction efforts, thereby 
providing greater assurance of long-range reintroduction success.
    We will transport ferrets to identified reintroduction areas within 
the Experimental Population Area and release them directly from 
transport cages into prairie dog burrows. Depending on the availability 
of suitable vaccine, we will vaccinate released animals against certain 
diseases (especially canine distemper) and take appropriate measures to 
reduce predation from coyotes, badgers, and raptors, where warranted. 
All ferrets we release will be marked with passive integrated 
transponder tags (PIT tags), and we may promote radio-telemetry studies 
to document ferret behavior and movements. Other monitoring will 
include spotlight surveys, snow tracking surveys, and visual 
surveillance.
    Since captive-born ferrets are more susceptible to predation, 
starvation, and environmental conditions than wild animals, up to 90 
percent of the released ferrets could die during the first year of 
release. Mortality is usually highest during the first month following 
release. In the first year of the program, a realistic goal is to have 
at least 25 percent of the animals survive the first winter. The goal 
of the Reservation reintroduction project is to establish a free-
ranging population of at least 30 adults within the Experimental 
Population Area within 5 years of release. At the release site, 
population demographics and potential sources of mortality will be 
monitored on an annual basis (for up to 5 years). We do not intend to 
change the nonessential designation for this experimental population 
unless we deem this reintroduction a failure or the black-footed ferret 
is recovered in the wild.
    6. Status of Reintroduced Population: We determine this 
reintroduction to be nonessential to the continued existence of the 
species for the following reasons:
    (a) The captive population (founder population of the species) is 
protected against the threat of extinction from a single catastrophic 
event by housing ferrets in six separate subpopulations. As a result, 
any loss of an experimental population in the wild will not threaten 
the survival of the species as a whole.
    (b) The primary repository of genetic diversity for the species is 
240 adult ferrets maintained in the captive-breeding population. 
Animals selected for reintroduction purposes are surplus to the captive 
population. Hence, any use of animals for reintroduction efforts will 
not affect the overall genetic diversity of the species.
    (c) Captive-breeding can replace any ferrets lost during this 
reintroduction attempt. Juvenile ferrets produced in excess of the 
numbers needed to maintain the captive-breeding population are 
available for reintroduction.
    This reintroduction will be the ninth release of ferrets back into 
the wild. The other experimental populations occur in Wyoming, 
southwestern South Dakota, north-central Montana (with two separate 
reintroduction efforts), Arizona, Colorado/Utah (a single 
reintroduction area that overlays both States), and north-central South 
Dakota. A population of ferrets also has been established in Mexico. 
Reintroductions are necessary to further the recovery of this species. 
The NEP designation alleviates landowner concerns about possible land 
use restrictions. This nonessential experimental designation provides a 
flexible management framework for protecting and recovering black-
footed ferrets while ensuring that the daily activities of landowners 
are unaffected.
    7. Location of Reintroduced Population: Section 10(j) of the Act 
requires that an experimental population be geographically separate 
from other wild populations of the same species. Since the mid-1980s, 
black-footed ferret surveys have been conducted in the Experimental 
Population Area or close by, and no wild ferrets have been located 
(Hanebury, 1988; Bureau of Indian Affairs, 1995; Lonewolf, Rosebud Game 
Fish and Parks, pers. comm. 2002). Over 120,000 ha (300,000 ac) of 
prairie dog colonies were surveyed for black-footed ferrets in the mid-
1980s during a prairie dog control effort on the Oglala Sioux Tribe's 
Pine Ridge Indian Reservation (Superintendent Memorandum, 1989). No 
ferrets were located. In addition to these surveys, the Tribe and 
others have spent many hours surveying prairie dog colonies at the 
primary reintroduction site (Hanebury, 1988; Bureau of Indian Affairs, 
1995). No ferrets or signs of ferrets (e.g., skulls, feces, trenches) 
were located. Therefore, we conclude that wild ferrets are no longer 
present in the Experimental Population Area, and that this 
reintroduction will not overlap with any wild population.
    All released ferrets and their offspring should remain in the 
Experimental Population Area due to the presence of prime habitat 
(i.e., lands occupied by prairie dog colonies) and surrounding 
geographic barriers. We will capture any ferret that leaves the 
Experimental Population Area, attempt to identify its origin, and 
either return it to the release site, translocate it to another site, 
or place it in captivity. If a ferret leaves the primary reintroduction 
area but remains within the Experimental Population Area and occupies 
private property, the landowner can request its removal. Ferrets will 
remain on private lands only when the landowner does not object to 
their presence there.
    We will mark all released ferrets and will attempt to determine the 
source of any unmarked animals found. Any ferret found outside the 
Experimental Population Area is considered endangered, as provided 
under the Act. We will undertake efforts to confirm whether any ferret 
found outside the Experimental Population Area originated from captive 
stock. If the animal is unrelated to members of this or other 
experimental populations (i.e., it is from non-captive stock), we will 
place it in captivity as part of the breeding population to improve the 
overall genetic diversity of the captive population. Existing 
contingency plans allow for the capture and retention of up to nine 
ferrets shown not to be from any captive stock. In the highly unlikely 
event that a ferret from captive stock is found outside the 
Experimental Population Area, and if landowner permission is granted, 
we will move the ferret back to habitats that support the primary 
population(s) of ferrets.
    8. Management: This reintroduction is undertaken in cooperation 
with the Rosebud Sioux Tribe, the Bureau of Indian Affairs, and the 
Forest Service in accordance with the ``Cooperative Management Plan for 
Black-footed Ferrets, Rosebud Sioux Reservation.'' Copies of the 
Cooperative Management Plan may be obtained from the Rosebud Sioux 
Tribe, Game, Fish and Parks Department, P.O. Box 430, Rosebud, South 
Dakota 57570. In the future, we will evaluate whether other black-
footed ferret reintroductions are feasible within the Experimental 
Population Area. Cooperating Tribes, agencies, and private landowners 
will be involved in the selection of any additional sites.

[[Page 26502]]

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

[[Page 26503]]

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

Previous Federal Action

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

Peer Review

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

Summary of Comments and Recommendations

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

[[Page 26504]]

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

[[Page 26505]]

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

Effective Date Justification

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

Required Determinations

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

[[Page 26506]]

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

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

    The NEP designation will not place any additional requirements on 
any city, county, or other local municipalities. The specific site 
designated for release of the experimental population of ferrets is 
predominantly Rosebud Sioux Tribal Trust land administered by the 
Rosebud Sioux Tribe, who support this project. The State of South 
Dakota has expressed support for accomplishing the reintroduction 
through a nonessential experimental designation. Accordingly, this rule 
will not ``significantly or uniquely'' affect small governments. A 
Small Government Agency Plan is not required. Since this rulemaking 
does not require that any action be taken by local or State government 
or private entities, we have determined and certify pursuant to the 
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities (i.e., it is not 
a ``significant regulatory action'' under the Act).

Takings (E.O. 12630)

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

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment. As stated above, most of the lands within the 
primary reintroduction area are Tribal Trust lands, and multiple-use 
management of these lands will not change to accommodate black-footed 
ferrets. The designation will not impose any new restrictions on the 
State of South Dakota. The Service has coordinated extensively with the 
Tribe and State of South Dakota, and they endorse the NEP designation 
as the only feasible way to pursue ferret recovery in the area. A 
Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act

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

[[Page 26507]]

National Environmental Policy Act

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

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

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

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

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

References Cited

Anderson E., S.C. Forrest, T.W. Clark, and L. Richardson. 1986. 
Paleobiology, biogeography, and systematics of the black-footed 
ferret Mustela nigripes (Audubon and Bachman), 1851. Great Basin 
Naturalist Memoirs 8:11-62.
Biggins, D.E., B.J. Miller, L.R. Hanebury, B. Oakleaf, A.H. Farmer, 
R. Crete, and A. Dood. 1993. A technique for evaluating black-footed 
ferret habitat. Proceedings of the Symposium on the Management of 
Prairie Dog Complexes for the Reintroduction of the Black-footed 
Ferret. Biological Report 13, pp. 73-88.
Biggins, D.E., J.L. Godbey, L.R. Hanebury, B. Luce, P.E. Marinari, 
M.R. Matchett, and A. Vargas. 1998. The effects of rearing methods 
on survival of reintroduced black-footed ferrets. Journal of 
Wildlife Management 62:643-653.
Black-footed Ferret Recovery Implementation Team. 2000. Evaluation 
of potential black-footed ferret reintroduction sites in North 
America. 17 pp.
Bureau of Indian Affairs. 1995. Final Environmental Impact Statement 
for livestock grazing and prairie dog management for the Rosebud and 
Cheyenne River Sioux Indian Reservations. Aberdeen Area Office.
Eskey, C.R., and V.H. Haas. 1940. Plague in the western part of the 
United States. United States Public Health Bulletin No. 254. 83 pp.
Forrest, S.C., T.W. Clark, L. Richardson, and T.M. Campbell III. 
1985. Black-footed ferret habitat: Some management and 
reintroduction considerations. Wyoming Bureau of Land Management, 
Wildlife Technical Bulletin, No. 2. 49 pp.
Hanebury, L. 1988. Black-footed ferret search coordinator memorandum 
to N. McPhillips regarding detailing ferret surveys on Rosebud 
Indian Reservation. 5 pp.
Henderson, F.R., P.F. Springer, and R. Adrian. 1969. Updated 1974. 
The black-footed ferret in South Dakota. South Dakota Department of 
Game, Fish and Parks, Technical Bulletin 4:1-36.
Hillman, C.N., and R.L. Linder. 1973. The black-footed ferret. Pages 
10-20 in Proceedings of the Black-footed Ferret and Prairie Dog 
Workshop, Sept. 4-6, 1973. South Dakota State University, Brookings. 
208 pp.
Schroeder, M.H. and S.J. Martin. 1982. Search for the black-footed 
ferret succeeds. Wyoming Wildlife 46(7):8-9.
Superintendent Memorandum. 1989. Certification to conduct black-
footed ferret surveys. Pine Ridge Agency.
U.S. Fish and Wildlife Service. 1988. Black-footed ferret recovery 
plan. U.S. Fish and Wildlife Service, Denver, Colorado. 154 pp.
Vargas, A., M. Lockhart, P. Marinari, and P. Gober. 1998. Preparing 
captive-raised black-footed ferrets (Mustela nigripes) for survival 
after release. Jersey Wildlife Preservation Trust 34:76-83.
Williams, E.S., E.T. Thorne, T.S. Quan, and S.L. Anderson. 1991. 
Experimental infection of domestic ferrets (Mustela putorius furo) 
and Siberian polecats (Mustela eversmanni) with Yersinia pestis. 
Journal of Wildlife Diseases 27:441-445.
Williams, E.S., K. Mills, D.R. Kwiatkowski, E.T. Thorne, and A. 
Boerger-Fields. 1994. Plague in a black-footed ferret (Mustela 
nigripes). Journal of Wildlife Diseases 30: 581-585.

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulations Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for Part 17 continues to read as follows:

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


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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 26508]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                               Vertebrate
----------------------------------------------------                     population where                                     Critical
                                                      Historic  range     endangered or       Status        When  listed      habitat     Special  rules
          Common name              Scientific name                          threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Mammals
 
                                                                      * * * * * * *
Ferret. black-footed...........  Mustela nigripes..  Western U.S.A.,    Entire, except     E             1, 3, 433, 545,             NA  NA
                                                      Western Canada.    where listed as                  546, 582, 646,
                                                                         an experimental                  703, 737.
                                                                         population.
 Do............................  ......do..........  ......do.........  U.S.A. (specified  XN            433, 545, 546,              NA  17.84(g)
                                                                         portions of AZ,                  582, 646, 703,
                                                                         CO, MT, SD, UT,                  737.
                                                                         and WY, see
                                                                         17.84(g)(9)).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.84 by revising paragraphs (g)(1) and (g)(4)(iii) and 
by adding paragraphs (g)(6)(vii) and (g)(9)(vii) to read as follows, 
and by adding a map to follow the existing maps at the end of this 
paragraph (g):


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (g) Black-footed ferret (Mustela nigripes).
    (1) The black-footed ferret populations identified in paragraph 
(g)(9)(i) through (vii) of this section are nonessential experimental 
populations. We will manage each of these populations in accordance 
with their respective management plans.
* * * * *
    (4) * * *
    (iii) To relocate a ferret that has moved outside the Little Snake 
Black-footed Ferret Management Area/Coyote Basin Primary Management 
Zone or the Rosebud Sioux Reservation Experimental Population Area when 
that relocation is necessary to protect the ferret or is requested by 
an affected landowner or land manager, or whose removal is requested 
pursuant to paragraph (g)(12) of this section.
* * * * *
    (6) * * *
    (vii) Report such taking in the Rosebud Sioux Reservation 
Experimental Population Area to the Field Supervisor, Ecological 
Services, U.S. Fish and Wildlife Service, Pierre, South Dakota 
(telephone 605/224-8693).
* * * * *
    (9) * * *
    (vii) The Rosebud Sioux Reservation Experimental Population Area is 
shown on the map of south-central South Dakota at the end of paragraph 
(g) of this section. The boundaries of the nonessential experimental 
population area include all of Gregory, Mellette, Todd, and Tripp 
Counties in South Dakota. Any black-footed ferret found within these 
four counties will be considered part of the nonessential experimental 
population after the first breeding season following the first year of 
black-footed ferret release. A black-footed ferret occurring outside 
the nonessential experimental population area in south-central South 
Dakota will initially be considered as endangered but may be captured 
for genetic testing. If necessary, disposition of the captured animal 
may occur in the following ways:
    (A) If an animal is genetically determined to have originated from 
the experimental population, we may return it to the reintroduction 
area or to a captive-breeding facility.
    (B) If an animal is determined to be genetically unrelated to the 
experimental population, we will place it in captivity under an 
existing contingency plan. Up to nine black-footed ferrets may be taken 
for use in the captive-breeding program.
* * * * *

BILLING CODE 4310-55-P

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[GRAPHIC][TIFF OMITTED]TR16MY03.021



[[Page 26510]]


    Dated: April 16, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-12199 Filed 5-15-03; 8:45 am]
BILLING CODE 4310-55-C