[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Proposed Rules]
[Pages 31906-31920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13684]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2011-0030; 92220-1113-0000-C6]
RIN 1018-AW02


Endangered and Threatened Wildlife and Plants; Revising the 
Special Rule for the Utah Prairie Dog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: Under the Endangered Species Act of 1973, as amended (ESA), we 
(the U.S. Fish and Wildlife Service (Service/USFWS)) are proposing to 
revise our special regulations for the conservation of the Utah prairie 
dog. We are proposing to revise the existing limits on take, and we 
also propose a new incidental take exemption for otherwise legal 
activities associated with standard agricultural practices. All other 
provisions of the special rule not relating to these amendments would 
remain unchanged. We seek comment from the public and other agencies, 
and welcome suggestions regarding the scope and implementation of the 
special rule. After the closing of the comment period, a draft 
environmental assessment will be prepared on our proposed actions.

DATES: We will accept comments received or postmarked on or before 
August 1, 2011. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is Eastern Standard Time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in the FOR FURTHER INFORMATION CONTACT section by July 18, 2011.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the Docket number for 
this proposed rule, which is FWS-R6-ES-2011-0030. Check the box that 
reads ``Open for Comment/Submission,'' and then click the Search 
button. You should then see an icon that reads ``Submit a Comment.'' 
Please ensure that you have found the correct rulemaking before 
submitting your comment.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attention: FWS-R6-ES-2011-0030; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203.
    We will post all information we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Request for Information 
section below for more details).

FOR FURTHER INFORMATION CONTACT: For information on Utah prairie dogs 
see: http://www.fws.gov/mountain-prairie/species/mammals/UTprairiedog 
or http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A04A, or contact Larry Crist, Field 
Supervisor, Utah Ecological Services Field Office, 2369 West Orton 
Circle, Suite 50, West Valley City, UT 84119 (telephone 801-975-3330; 
facsimile 801-975-3331). Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: Under the ESA, we are proposing to revise 
our existing special rule for the conservation of the Utah prairie dog 
in the Code of Federal Regulations (CFR) at 50 CFR 17.40(g). The 
current special rule, administered by the Utah Division of Wildlife 
Resources (UDWR), was established in 1991. Since that time, we have 
evaluated the take authorized by this rule and the methods used to 
implement it.
    We are considering the available information and proposing to 
revise established limits to permitted take administered by the UDWR. 
We propose to revise the regulations for where take is allowed to 
occur, the amount of take that may be permitted, and methods of take 
that may be permitted. This proposed amendment is largely consistent 
with past and current practices and permitting as administered by the 
UDWR under the current special rule. Utah prairie dog populations have 
remained stable to increasing throughout implementation of the current 
special rule implemented under the UDWR permit system. We also propose 
a new incidental take exemption for otherwise legal activities 
associated with standard agricultural practices.
    We seek comment on our proposed rule from the public and other 
agencies, and welcome suggestions regarding the scope and 
implementation of the special rule. After the closing of the comment 
period for this proposed rule, a draft environmental assessment will be 
prepared on our proposed action.

Request for Public Comments

    You may submit your comments and materials concerning this proposed 
rule

[[Page 31907]]

by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment--including your personal 
identifying information--will be posted on the Web site. If you submit 
a hardcopy comment that includes personal identifying information, 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. We will post all hardcopy comments on http://www.regulations.gov.

Peer Review

    We will seek independent review of the science in this proposed 
rule to ensure that our final rule is based on scientifically sound 
data, assumptions, and analyses. We will initiate the peer review 
immediately following publication of this proposed rule in the Federal 
Register.
    We will take into consideration all comments, including peer review 
comments and any additional information we receive on this proposed 
rule, during our preparation of a final rulemaking. Accordingly, the 
final decision may differ from this proposal.

Public Hearings

    Requests for public hearings must be received no later than the 
date given in DATES. Such requests must be made in writing and be 
addressed to the Field Supervisor at the address in the FOR FURTHER 
INFORMATION CONTACT section above.

Special Rules Under ESA Section 4(d)

    A 4(d) rule functions by prescribing those regulations that are 
necessary and advisable to conserve a threatened species. The Service 
has elected to extend all prohibitions under section 9 of the Act to 
threatened species through a ``blanket 4(d) rule'' unless otherwise 
specified in a separate 4(d) rule. Because the blanket rule effectively 
extends all available prohibitions to threatened species, separate 4(d) 
rules could be viewed as ``exempting,'' ``allowing,'' or ``permitting'' 
acts that would otherwise be prohibited. Instead, it is more accurate 
to say that a species-specific 4(d) rule supersedes the blanket 4(d) 
rule for the species at issue, and extends a more tailored set of 
prohibitions to the species. As a result, there may be some 
prohibitions that apply to other threatened species that do not apply 
to the threatened species at issue. In the interest of providing a 
clear rule with simple language, we will be using ``exempt'' and 
``allow'' in order to convey that the 4(d) rule will not prohibit 
certain actions. It is important to note that this use of language is 
for clarity only. The 4(d) rule will still function by prescribing the 
regulations necessary and advisable to conserve the Utah Prairie Dog.

Previous Federal Actions

    The Utah prairie dog (Cynomys parvidens) was listed as an 
endangered species on June 4, 1973 (38 FR 14678), pursuant to the 
Endangered Species Conservation Act of 1969. On January 4, 1974, this 
listing was incorporated into the ESA of 1973, as amended (39 FR 1158; 
see page 1171).
    On May 29, 1984, the Service reclassified the Utah prairie dog from 
endangered to threatened (49 FR 22330) and developed a special rule 
under section 4(d) of the ESA that allowed regulated take of up to 
5,000 animals annually on private lands in Iron County, Utah. On June 
14, 1991, we amended the special rule to allow regulated take of up to 
6,000 animals annually on private lands throughout the species' range 
(56 FR 27438).
    On February 3, 2003, we received a petition to reclassify the Utah 
prairie dog from threatened to endangered (Forest Guardians 2003, 
entire). The petition was based in part on threats to the species 
associated with the current 4(d) special rule (Forest Guardians 2003, 
pp. 104-108). On February 21, 2007 (72 FR 7843), we found that the 
petition did not provide substantial scientific or commercial 
information indicating that reclassification may be warranted. This 
decision was challenged by WildEarth Guardians in litigation (described 
below).
    On February 4, 2005, we received a petition under the 
Administrative Procedure Act (APA) requesting that we issue a rule to 
restrict the translocation of Utah prairie dogs and to terminate the 
special 4(d) rule allowing regulated take of Utah prairie dogs (Forest 
Guardians 2005, entire). On April 6, 2005, we acknowledged receipt of 
this petition. On February 23, 2009, we issued a final decision in 
which we denied the petitioned action (USFWS 2009, entire). However, 
this response acknowledged that we had initiated a process to amend the 
special 4(d) rule and that we anticipated that a proposed amended 
special 4(d) rule would soon be published in the Federal Register for 
public comment (USFWS 2009, p. 1). This decision was also challenged by 
WildEarth Guardians.
    On September 28, 2010, United States District Court for the 
District of Columbia vacated and remanded our February 21, 2007 (72 FR 
7843), not-substantial petition finding back to us for further 
consideration (WildEarth Guardians v. Salazar, Case 1:08-cv-01596-CKK 
(D.D.C.), 2010). In the same order, the court upheld our February 23, 
2009, decision on the APA petition. This ruling noted that although the 
level of take allowed in the 1991 special rule may not be biologically 
sound, some permitted take is advantageous to the Utah prairie dogs' 
recovery. The court specifically noted that controlled take can 
stimulate population growth, reduce high-density populations prone to 
decimation by plague, and, consequently, curb the species' boom-and-
bust population cycle. The court declined to weigh in on the precise 
level of take that should be permitted, concluding that this is a 
matter squarely within the Service's technical and scientific 
expertise.

Background

Species Description

    Prairie dogs belong to the Sciuridae family of rodents, which also 
includes squirrels, chipmunks, and marmots. There are five species of 
prairie dogs, all of which are native to North America, and all of 
which have non-overlapping geographic ranges (Hoogland 2003, p. 232). 
The Utah prairie dog is the smallest species of prairie dog, with 
individuals that are typically 250 to 400 millimeters (mm) (10 to 16 
inches (in.)) long (Hoogland 1995, p. 8)). Weight varies from 300 to 
900 grams (g) (0.66 to 2.0 pounds (lb)) in the spring and 500 to 1,500 
g (1.1 to 3.3 lb) in the late summer and early fall (Hoogland 1995, p. 
8). Utah prairie dogs range in color from cinnamon to clay. The Utah 
prairie dog is distinguished from other prairie dog species by a 
relatively short (30 to 70 mm (1.2 to 2.8 in.) white- or gray-tipped 
tail (Pizzimenti and Collier 1975, p. 1; Hoogland 2003, p. 232) and a 
black ``eyebrow'' above each eye. They are closely related to the 
white-tailed prairie dog (Hoogland 1995, p. 8).

Life History

    Utah prairie dogs are hibernators and spend 4 to 6 months 
underground each year during the harsh winter months, although they are 
seen above ground during mild weather (Hoogland 1995, pp.18-19). Adult 
males cease surface activity during August and September, and females 
follow suit several weeks later. Juvenile prairie dogs remain above 
ground 1 to 2 months longer than adults and usually go into hibernation 
by late November. Emergence from hibernation usually occurs in late 
February or early March (Hoogland 2003, p. 235).

[[Page 31908]]

    Mating begins 2 to 5 days after the females emerge from 
hibernation, and can continue through early April (Hoogland 2003, p. 
236). Female Utah prairie dogs come into estrus (period of greatest 
female reproductive responsiveness, usually coinciding with ovulation) 
and are sexually receptive for several hours for only 1 day during the 
breeding season (Hoogland 2003, p. 235). However, on average, 97 
percent of adult female Utah prairie dogs are in breeding condition 
each year and do successfully produce a litter (Mackley 1988, pp. 1, 
9).
    The young are born after a 28-to-30-day gestation period, in April 
or May (Hoogland 2003, p. 236). Litters range in size from one to seven 
pups; mean litter size is 3.88 pups; litter sizes vary directly with 
maternal body mass (Mackley 1988, pp. 8-9; Hoogland 2001, p. 923). 
Young prairie dogs depend almost entirely on nursing while in their 
burrow (Hoogland 2003, p. 236). The young emerge above ground by early 
to mid-June, and by that time they primarily forage on their own 
(Hoogland 2003, p. 236). Because of the relatively large litter sizes, 
the observed summer population numbers of prairie dogs are much greater 
than the number of animals seen above ground in the spring.
    Prairie dog pups attain adult size by October and reach sexual 
maturity at the age of 1 year (Wright-Smith 1978, p. 9). Less than 50 
percent of Utah prairie dogs survive to breeding age (Hoogland 2001, p. 
919). Male Utah prairie dogs frequently cannibalize juveniles, which 
may eliminate 20 percent of the litter (Hoogland 2003, p. 238). After 
the first year, female survivorship is higher than male survivorship, 
though still low for both sexes. Only about 20 percent of females and 
less than 10 percent of males survive to age 4 (Hoogland 2001, Figures 
1 and 2, pp. 919-920). Utah prairie dogs rarely live beyond 5 years of 
age (Hoogland 2001, p. 919). The sex ratio of juveniles at birth is 
1:1, but the adult sex ratio is skewed towards females, with adult 
female: Adult male sex ratios varying from 1.8:1 (Mackley 1988, pp. 1, 
6-7) to 2:1 (Wright-Smith 1978, p. 8)
    Natal dispersal (movement of first-year animals away from their 
area of birth) and breeding dispersal (movement of a sexually mature 
individual away from the areas where it copulated) are comprised mostly 
of male prairie dogs. Thus, individual male prairie dogs have a high 
mortality rate through predation. Young male Utah prairie dogs disperse 
in the late summer, with average dispersal events of 0.56 kilometers 
(km) (0.35 mile (mi)) and long distance dispersal events of up to 1.7 
km (1.1 mi) (Mackley 1988, p. 10). Most dispersers move to adjacent 
territories (Hoogland 2003, p. 239).
    Utah prairie dogs are organized into social groups called clans, 
consisting of an adult male, several adult females, and their offspring 
(Wright-Smith 1978, p. 38; Hoogland 2001, p. 918). Clans maintain 
geographic territorial boundaries, which only the young regularly 
cross, although all animals use common feeding grounds.
    Major predators include coyotes (Canis latrans), badgers (Taxidea 
taxis), long-tailed weasels (Mustela frenata), various raptor species 
(Buteo spp., Aquila chrysaetos), and snakes (Crotalus spp., Pituophus 
spp.) (Hoogland 2001, p. 922). In established colonies, predators 
probably do not exert a controlling influence on numbers of prairie 
dogs (Collier and Spillett 1972, p. 36).

Habitat Requirements and Food Habits

    Utah prairie dogs occur in semiarid shrub-steppe and grassland 
habitats (McDonald 1993, p. 4; Roberts et al. 2000, p. 2; Bonzo and Day 
2003, p. 1). Within these habitats, they prefer swale-type formations 
where moist herbaceous vegetation is available (Collier 1975, p. 43; 
Crocker-Bedford and Spillett 1981, p. 24). Plentiful high-quality food 
found in swales enables prairie dogs to attain a large body mass, thus 
enhancing survival and increasing litter sizes and juvenile growth 
rates (Hoogland 2001, p. 923).
    Soil characteristics are an important factor in the location of 
Utah prairie dog colonies (Collier 1975, p. 53). A well-drained area is 
necessary for home burrows. The soil should be deep enough to allow 
burrowing to depths sufficient to provide protection from predators and 
insulation from environmental and temperature extremes. Prairie dogs 
must be able to inhabit a burrow system 1 meter (m) (3.3 feet (ft)) 
underground without becoming wet.
    Prairie dogs are predominantly herbivores, though they also eat 
insects (Crocker-Bedford and Spillett 1981, p. 8; Hoogland 2003, p. 
238). Grasses are the staple of their annual diet (Crocker-Bedford and 
Spillett 1981, p. 8; Hasenyager 1984, p. 27), but other plants are 
selected during different times of the year. Utah prairie dogs only 
select shrubs when they are in flower, and then only eat the flowers 
(Crocker-Bedford and Spillet 1981, p. 8). Forbs are consumed in the 
spring. Forbs also may be crucial for the survival of prairie dogs 
during drought (Collier 1975, p. 48).
    Utah prairie dogs prefer areas with deep, productive soils. These 
are the same areas preferred by agricultural producers. Agricultural 
tilling practices create unusually deep, soft soils optimum for 
burrowing; irrigation increases vegetative productivity; and plantings 
of favored moist forb species (such as alfalfa) likely make these areas 
more productive than they were historically (Collier 1975, pp. 42-43). 
Additionally, Utah prairie dogs grow faster and attain larger body 
weights (Crocker-Bedford and Spillett 1981, p. 1), and thus have higher 
overwinter survival, in alfalfa crops versus native habitats (Crocker-
Bedford and Spillett 1981, p. 16). Reproduction and weaning of young 
also may be more successful in agricultural areas that provide abundant 
forage resources that are otherwise unavailable in drier native 
habitats (Crocker-Bedford and Spillett 1981, p. 17). Similarly, 
colonies in agricultural areas expand more rapidly than those in native 
habitats (Crocker-Bedford and Spillett 1981, p. 16). Finally, predator 
mortality is generally low for Utah prairie dogs in agricultural fields 
(see Life History), because farmers control badgers and coyotes in 
these areas (Crocker-Bedford and Spillett 1981, p. 17).
    While we believe that the valley bottoms have probably always 
supported more prairie dogs than surrounding drier sites, it is likely 
that the high densities and abundances occurring in these areas are 
unnaturally augmented by today's agricultural practices (Collier 1975, 
pp. 43, 53; Crocker-Bedford and Spillett 1981, pp. 15-17, 22).
    Overall, agricultural lands can provide valuable habitats for Utah 
prairie dogs. However, if the prairie dog populations become too dense, 
these same areas may be more prone to outbreaks of plague, a nonnative 
disease that occurs across the entire range of the Utah prairie dog and 
can extirpate entire colonies (Cully 1989, p. 48; Cully 1993, p. 40; 
Biggins and Kosoy 2001, p. 62; Cully and Williams 2001, p. 895). The 
rate of the spread of plague is likely dependent in part on the density 
of the host (e.g., Utah prairie dog) population (Rayor 1985, entire; 
Cully 1993, p. 43; Cully and Williams 2001, p. 899-901; Biggins et al. 
2010, p. 18)--populations with higher densities likely have higher 
plague transmission rates and higher rates of epizootic (rapidly 
spreading die-off cycle) outbreaks. Thus, we conclude that, if left 
unmanaged, the unnaturally high densities of Utah prairie dogs on some 
agricultural lands increase their susceptibility to plague outbreaks.

[[Page 31909]]

Distribution and Abundance

    The Utah prairie dog is the westernmost member of the genus 
Cynomys. Historically, the species' distribution extended much further 
north than it does today (Collier 1975, pp. 15-17; Pizzimenti and 
Collier 1975, p. 1). Utah prairie dog populations declined dramatically 
when control programs to eradicate the species were initiated in the 
1920s. The actual numeric population reduction is not known, because 
historical population figures were not scientifically derived (Collier 
and Spillett 1973, pp. 83-84). However, poisoning is estimated to have 
removed prairie dogs from approximately 8,094 hectares (ha) (20,000 
acres (ac)) of their range prior to 1963 (Collier and Spillett 1972, 
pp. 33-35). Other factors that resulted in the historical decline of 
Utah prairie dogs were drought, habitat alteration from conversion of 
lands to agricultural crops, unregulated shooting, and disease (Collier 
and Spillett 1972, pp. 32-35).
    The species' range is now limited to the southwestern quarter of 
Utah in Iron, Beaver, Garfield, Wayne, Piute, Sevier, and Kane 
Counties. The Utah prairie dog has the most restricted range of the 
four prairie dog species in the United States.
    The best available information concerning Utah prairie dog habitat 
and population trends comes from survey and mapping efforts conducted 
by the UDWR annually since 1976. These surveys (hereafter referred to 
as ``counts'' or ``spring counts'') count adult Utah prairie dogs on 
all known and accessible colonies annually, in April and May, after the 
adults have emerged, but before the young are above ground in June (see 
``Life History''). Some non-Federal lands with active Utah prairie dog 
colonies are not surveyed due to lack of access. However, we believe 
that over 90 percent of prairie dog colonies are known and annually 
surveyed (Brown, pers. comm., 2010). Therefore, actual rangewide 
prairie dog numbers may be somewhat higher than reported, though 
probably not substantially higher.
    Utah prairie dog surveys are completed in the spring (``spring 
counts'') by visually scanning each colony area and counting the 
numbers of prairie dogs observed. Only 40 to 60 percent of Utah prairie 
dogs are above ground at any one time (Crocker-Bedford 1975 in USFWS 
1991, p. 5). Therefore, spring counts represent approximately 50 
percent of the adult population. Total population estimates are larger 
than the estimated adult population because they include reproduction 
and juveniles. Based on the male to female ratio, number of breeding 
females, average litter size, and observed spring count versus spring 
population (see the ``Life History'' section; Wright-Smith 1978, p. 8; 
Mackley 1988, pp. 1, 6-9; Hoogland 2001, pp. 919-920; 923), the total 
population estimate can thus be calculated from spring counts as 
follows: [(2 x spring adult count) x 0.67 (proportion of adult females) 
x 0.97 (proportion of breeding females) x 4 (average number of young 
per breeding female)] plus (2 x spring adult count). Thus, the total 
population estimate is about 7.2 x the spring count.
    It should be noted that spring count surveys and population 
estimates are not censuses. Rather, they are designed to monitor 
population trends over time. Based on the spring counts, rangewide 
population trends for the Utah prairie dog are stable to increasing 
over the last 30 years (see Figure 1).
    In addition to population trend information, the UDWR surveys 
provide information on the amount of mapped and occupied habitat across 
the species' range. We define mapped habitat as all areas within the 
species' range that were identified and delineated as being occupied by 
Utah prairie dogs in any year since 1972. These areas may or may not be 
occupied by prairie dogs in any given year. The database of all mapped 
habitat is maintained by the UDWR and updated annually. Occupied 
habitats are defined as areas that support Utah prairie dogs (i.e., 
where prairie dogs are seen or heard or where active burrows or other 
signs are found).
    The UDWR has mapped 24,142 ha (59,656 ac) of habitat rangewide 
(UDWR 2010a, entire). The Utah prairie dog occurs in three 
geographically identifiable areas within southwestern Utah, which are 
identified as recovery areas in our 1991 Recovery Plan (USFWS 1991, pp. 
5-6) and as recovery units in our 2010 Draft Revised Recovery Plan 
(USFWS 2010, pp. 1.3.3, 3.2-7, 3.2-8), including: (1) The Awapa 
Plateau; (2) the Paunsaugunt Plateau, and (3) the West Desert. The 
Awapa Plateau recovery unit encompasses portions of Piute, Garfield, 
Wayne, and Sevier Counties. The Paunsaugunt Plateau recovery unit is 
primarily in western Garfield County, with small areas in Iron and Kane 
Counties. The West Desert recovery unit is primarily in Iron County, 
but extends into southern Beaver County and northern Washington County. 
Table 1 provides information on each recovery unit, including average 
percentage of the rangewide population and average percentage of 
prairie dogs occurring on non-Federal land (averages for 2000 to 2009). 
Additional information on each recovery unit's distribution, abundance, 
and trends can be found in our 2010 Draft Revised Recovery Plan (USFWS 
2010, section 1.3)

      Table 1--Population and Occupancy Data for Each Recovery Unit
------------------------------------------------------------------------
                                                      Average percentage
                                  Average percentage    of prairie dogs
                                     of rangewide      occurring on non-
                                      population         Federal land
------------------------------------------------------------------------
Awapa Recovery Unit.............                8.9                47.6
Paunsaugunt Recovery Unit.......               16.9                71.0
West Desert Recovery Unit.......               74.2                85.1
------------------------------------------------------------------------
Note: Averages calculated from 2000 to 2009.
Source: UDWR 2009, 2010b.

Application of the Prairie Dog Special Rule Through the Present

    As explained above in the ``Special Rules Under ESA Section 4(d)'' 
section, pursuant to section 4(d) of the ESA, the Secretary of the 
Interior may extend to a threatened species those protections provided 
to an endangered species as deemed necessary and advisable to provide 
for the conservation of the species. When the Utah prairie dog was 
reclassified from endangered to threatened status in 1984, we issued a 
special rule applying all of the ESA's prohibitions to the Utah prairie 
dog except for take occurring in specific delineated portions of the 
Cedar and Parowan Valleys in Iron County, Utah, when permitted by the 
UDWR and in accordance with the laws of the State of

[[Page 31910]]

Utah, provided that such take did not exceed 5,000 animals annually and 
that such take was confined to the period from June 1 to December 31 
(49 FR 22330; see page 22334, May 29, 1984). The rule required 
quarterly reporting by UDWR and allowed us to immediately prohibit or 
restrict such taking as appropriate for the conservation of the species 
if we received substantive evidence that the allowed take was having an 
effect that was inconsistent with the conservation of the Utah prairie 
dog (49 FR 22330, May 29, 1984).
    In 1991, we amended the special rule (56 FR 27438, June 14, 1991), 
expanding the authorized taking area to include all private land within 
the species' range, and raised the maximum allowable take to 6,000 
animals annually (50 CFR 17.40(g)). The rule required UDWR to maintain 
records on permitted take and make them available to the Service upon 
request (50 CFR 17.40(g)). Under this rule, we retained the ability to 
immediately prohibit or restrict such take as appropriate for the 
conservation of the species if we received substantive evidence that 
the permitted take was having an effect that is inconsistent with the 
conservation of the species (50 CFR 17.40(g)).
    Both rules (49 FR 22330, May 29, 1984; 56 FR 27438, June 14, 1991) 
were intended to relieve Utah prairie dog population pressures in 
overcrowded portions of the range that could not otherwise be relieved. 
The rules indicated that agricultural practices were making the habitat 
more productive than it was historically, thus allowing the prairie dog 
population to achieve unnaturally high densities. The resulting 
overpopulation pressures increase the risk of sylvatic plague (Yersinia 
pestis) outbreaks (see ``Habitat Requirements and Food Habits,'' above; 
49 FR 22333, May 29, 1984; 56 FR 27439-27440, June 14, 1991). The rules 
also concluded that removing individuals during summer when populations 
were highest would reduce competition in overpopulated areas and result 
in increased overwinter survival among remaining animals (49 FR 22334, 
page 22333, May 29, 1984; 56 FR 27439-27441, June 14, 1991).
    Finally, these rules were necessary and advisable to address the 
growing conflicts between landowners and prairie dogs by providing for 
ecologically based population control that also alleviated some of the 
impacts to agricultural operations (49 FR 22330, May 29, 1984; 56 FR 
22330, pages 27439-27440, June 14, 1991). The rules expressed concern 
that without control actions, these factors could have a substantially 
negative effect on populations and reverse the recovery progress made 
since listing (49 FR 22330, page 22333, May 29, 1984; 56 FR 27440, June 
14, 1991). The 1991 rule referenced data that demonstrated that Utah 
prairie dog population levels in areas with controlled take under the 
1984 special rule increased 88 percent during the first 4 years (1985-
1989) of implementation (56 FR 27438, June 14, 1991; see page 27440).
    In practice, the UDWR currently permits taking only by shooting or 
trapping on agricultural lands where prairie dogs are causing damage 
and limits the number of animals taken on an individual colony to no 
more than half of a colony's estimated productivity for that year. Over 
time, UDWR has permitted take averaging 5.7 percent of the total 
rangewide estimated population annually (range equals 1.8 to 12.9 
percent); actual take has averaged 2.5 percent of the total rangewide 
estimated population (range equals 0.9 to 5.3 percent). Table 2 
provides detailed information on permitted and reported take as a 
percent of the total rangewide population from 1985 to 2009 (UDWR 
2010b, entire). Figure 1 illustrates annual rangewide population 
estimates from 1985 to 2009 with a population trend line. Throughout 
implementation of the current special rules (49 FR 22330, May 29, 1984; 
56 FR 27438, June 14, 1991; 50 CFR 17.40(g)), both the rangewide 
population estimates and numbers of prairie dogs in individual colonies 
subject to control remain stable to increasing (Figure 1; Day, pers. 
comm., 2010).

                 Table 2--Amount of Utah Prairie Dog Take Permitted and Reported Under the ESA 4(d) Rule by UDWR, 1985-2009 (UDWR 2010b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Permitted take                   Reported take
                                                                             Rangewide                     percentage of                   percentage of
                         Year *                            Spring count     population    Permitted take     rangewide     Reported take     rangewide
                                                                             estimate                       population                      population
                                                                                                             estimate                        estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
1985....................................................           3,299          23,752             845             3.5             426             1.8
1986....................................................           4,400          31,680           2,040             6.4           1,247             3.9
1987....................................................           4,771          34,351             975             2.8             370             1.1
1988....................................................           4,640          33,408           2,415             7.2             528             1.6
1989....................................................           7,527          54,194           3,050             5.6             838             1.5
1991....................................................           4,492          32,342           4,200            12.9           1,632             5.0
1992....................................................           4,067          29,282           3,520            12.0           1,543             5.3
1993....................................................           3,954          28,469           1,050             3.7             599             2.1
1994....................................................           3,702          26,654           1,190             4.5             779             2.9
1995....................................................           3,576          25,747             630             2.4             461             1.8
1996....................................................           3,917          28,202             520             1.8             436             1.5
1997....................................................           4,359          31,385           1,065             3.4             589             1.9
1998....................................................           5,106          36,763           1,220             3.3             717             1.9
1999....................................................           5,068          36,490           2,496             6.8            1233             3.4
2000....................................................           5,892          42,422           3,700             8.7            1386             3.3
2001....................................................           4,223          30,406           3,719            12.2            1626             5.3
2002....................................................           4,933          35,518           3,781            10.6            1760             4.9
2003....................................................           3,729          26,849           2,620             9.8            1195             4.4
2004....................................................           4,102          29,534           1,360             4.6             363             1.2
2005....................................................           5,375          38,700           1,470             3.8             673             1.7
2006....................................................           5,524          39,773           1,060             2.7             343             0.9
2007....................................................           5,991          43,135             944             2.2             482             1.1
2008....................................................           5,791          41,695           1,204             2.9             561             1.3
2009....................................................           5,827          41,954           1,532             3.6             558             1.3
                                                         -----------------------------------------------------------------------------------------------

[[Page 31911]]

 
    AVG.................................................           4,761          34,279           1,942             5.7             848             2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
* In 1990, colonies on private lands were not counted, due to staffing and budget limitations. Thus, these incomplete estimates are excluded from this
  table. In addition, take from 1985 to 1990 occurred only on non-Federal lands in Cedar and Parowan Valleys, Iron County. Take from 1991 to present was
  authorized on non-Federal lands rangewide.

  [GRAPHIC] [TIFF OMITTED] TP02JN11.013
  
Proposed Amendments

    Based on new scientific information and 25 years of available data, 
we believe the existing 4(d) special rule should be amended. This 
proposed amendment includes limiting the direct take prohibitions 
authorized in 1984 and as amended in 1991, and provides additional 
incidental take authorization for otherwise legal activities associated 
with standard agricultural practices. The proposed amendments are 
largely consistent with the past practices and permitting as 
administered by UDWR under the current special rule. Utah prairie dog 
populations have remained stable to increasing throughout 
implementation of the current special rule as implemented under the 
UDWR permit system. Below we analyze both the new proposed restrictions 
on direct take and the new incidental take provision.

Limiting Where Direct Take Can Be Permitted by the State

    The current special rule allows UDWR to permit take on private 
lands anywhere within the range of the Utah prairie dog. In practice, 
however, UDWR currently permits take only on agricultural lands where 
prairie dogs are causing damage. In this revision to the special rule, 
we propose to limit the locations where UDWR can permit take to 
agricultural lands and private property neighboring conservation 
properties.
    The first situation where UDWR would be allowed to permit take is 
on agricultural land. This is consistent with current UDWR permitting 
procedures under the current special rule. However, our proposed 
revision would provide a specific definition for agricultural lands for 
clarification purposes. Specifically, this rule proposes that the above 
activities would be exempted from the take prohibition only on lands 
meeting the Utah Farmland Assessment Act of

[[Page 31912]]

1969 definition of agricultural lands (Utah Code Annotated Sections 59-
2-501 through 59-2-515). Thus, to be considered agricultural land under 
this proposed amendment, lands must (1) meet the general classification 
of irrigated, dryland, grazing land, orchard or meadow; (2) be capable 
of producing crops or forage; (3) be at least 2 contiguous ha (5 
contiguous ac) (smaller parcels may qualify where devoted to 
agriculture use in conjunction with other eligible acreage under 
identical legal ownership); (4) be managed in such a way that there is 
a reasonable expectation of profit; (5) have been devoted to 
agricultural use for at least 2 successive years immediately preceding 
the year in which application is made; and (6) meet State average 
annual (per-acre) production requirements. Limiting UDWR-permitted take 
to agricultural lands is consistent with the justification provided in 
the previous special rules for the species (as summarized above).
    Additionally, agricultural operators must demonstrate to UDWR that 
their land is being physically or economically impacted by Utah prairie 
dogs. Before an application can be approved, UDWR must conduct a visual 
census of the applicant's property to verify that the land is being 
physically or economically impacted by Utah prairie dogs. The visual 
census will count prairie dogs on the applicant's property and 
determine a population estimate for the colony. A minimum spring count 
of five animals is required to ensure that permits are authorized only 
where resident prairie dogs have become established on agricultural 
lands (Day, pers. comm. 2011). Thus, lands being minimally impacted by 
dispersing prairie dogs would not be covered. These proposed 
restrictions are consistent with past UDWR practice. Utah prairie dog 
populations have remained stable to increasing throughout 
implementation of the current special rule and past practices, as 
implemented under the UDWR permit system. Therefore, consistent with 
past practice and data that indicate these restrictions will support 
the ongoing conservation of the species, we propose to adopt these 
restrictions.
    The second situation where UDWR would be allowed to permit take is 
on private property within 0.8 km (0.5 mi) of Utah prairie dog 
conservation lands. Although the current special rule already allows 
for take in this situation, such take is not currently authorized by 
UDWR practices. However, we believe the continuation of this provision 
is important for Utah prairie dog recovery efforts. Permitting take by 
UDWR in this manner on private property near conservation lands 
promotes landowner and community support for Utah prairie dog recovery 
on non-Federal lands.
    Conservation lands are areas set aside for the preservation of Utah 
prairie dogs and are managed specifically or primarily toward that 
purpose. Conservation lands may include, but are not limited to, non-
Federal properties set aside as conservation banks, fee title purchased 
properties, properties under conservation easements, or properties 
subject to a safe harbor agreement. In order to be recognized as Utah 
prairie dog conservation land, the parcel must be accompanied by 
documentation that clearly defines the conservation benefits to the 
Utah prairie dog. In addition, documentation must be available 
describing the location of all neighboring private properties within 
0.8 km (0.5 mi) of the conservation land parcel; the baseline 
populations of prairie dogs on the neighboring private properties (the 
highest estimated population size of the last 5 years prior to the 
establishment of the conservation property); and the methods of Utah 
prairie dog control that will be allowed on the neighboring private 
properties. The amount of UDWR-permitted take on properties that 
neighbor conservation lands, discussed further below, will be limited 
each year to the number of animals that exceed the baseline population 
size.
    Continuing to allow permitted take on agricultural lands and lands 
bordering conservation lands is critical to facilitating the species' 
recovery. As previously described, Utah prairie dogs can reach 
unnaturally high densities and abundance on agricultural lands because 
of increased forage quantity and quality, and lower predator numbers 
(see ``Habitat Requirements and Food Habits'' section above). If 
prairie dog populations on agricultural lands are left uncontrolled, 
the consequent crowding may result in diminished forage resources, 
leading to decreased reproduction and survival or increased emigration 
(Crocker-Bedford and Spillett 1981, pp. 21-22; Reeve and Vosburgh 2006, 
pp. 122-123). Controlling populations by removing some prairie dogs 
decreases competition for limited food resources, consequently 
resulting in increased reproduction and decreased mortality (Reeve and 
Vosburgh 2006, p. 122).
    Controlled removal also may help mediate the potential for plague 
outbreaks on prairie dog colonies. Plague is a nonnative disease that 
periodically erupts in epizootic events when increased population 
densities cause additional stress among individuals. High animal 
densities facilitate transmission of the disease between individuals 
(Cully 1989, p. 49; Anderson and Williams 1997, p. 730; Gage and Kosoy 
2005, pp. 509 and 519-520).
    Allowing control on agricultural lands will thus enhance the long-
term conservation of the Utah prairie dog on these lands by maintaining 
more sustainable populations (i.e., more natural animal densities are 
less likely to degrade their forage resources, and less likely to have 
large scale plague outbreaks). Utah prairie dog populations have 
remained stable to increasing under the current special rule since 
1984.
    We also have concluded that allowing some control of Utah prairie 
dogs will increase the participation of landowners and local 
communities in the species conservation and recovery. Until recently, 
Utah prairie dog recovery efforts focused on habitat enhancements and 
translocation of the animals to Federal lands (USFWS 1991, pp. 19-33). 
Consequently, recovery was largely dependent on achieving sufficient 
population numbers on Federal lands, without considering the potential 
for conservation benefits that could be achieved on private lands. We 
now have concluded that recovery will be achieved more rapidly if we 
increase conservation efforts on private and other non-Federal lands 
(where the majority of the species' occupied habitat occurs) (USFWS 
2010, p. 2.3-2). We are in the process of revising the Recovery Plan to 
reflect this new direction (USFWS 2010, entire).
    New or increased Federal regulations can be disincentives for 
recovery efforts. These disincentives may be nearly insurmountable for 
State, Tribal, and private landowners. Many agricultural producers 
claim that Utah prairie dogs impact their operations through loss of 
forage for their cattle; equipment damage from driving across burrows; 
livestock injury if animals step in burrows; and decreased crop yields 
(e.g., prairie dogs eat crop vegetation such as alfalfa) (Elmore and 
Messmer 2006, p. 9). We expect that increased focus on establishing and 
managing non-Federal conservation lands will likely increase the size 
and extent of prairie dog colonies on and adjacent to these 
conservation lands. Thus, as recovery becomes more and more successful 
on non-Federal lands, regulatory relief will become increasingly 
important.
    To achieve recovery, we will need to encourage private landowners 
and local communities to participate in prairie dog habitat improvement 
and protection measures. We can achieve this only if

[[Page 31913]]

we demonstrate that the benefits of prairie dog conservation outweigh 
the costs to the landowner, and if control programs or other damage 
compensation is available when needed (Elmore and Messmer 2006, p. 13). 
Some producers are interested in working with us on habitat and range 
improvement projects that benefit livestock and Utah prairie dogs 
simultaneously, or participating in conservation easements that benefit 
the species (Elmore and Messmer 2006, pp. 10-11, 13). However, 
agricultural producers want the ability to control or translocate 
prairie dogs to minimize levels of damage (Elmore and Messmer 2006, pp. 
10, 13).
    Our recent experiences show that if we are mindful of landowners' 
needs, and provide mechanisms to control Utah prairie dogs where they 
conflict with human land uses, we can gain landowner and local 
community support for species conservation. For example, in a 2005 safe 
harbor agreement, a landowner agreed to restore habitat and allow the 
establishment of a new colony of prairie dogs on his property through 
translocations (USFWS 2005, entire), but conditioned his willingness to 
accept translocated animals on the fact that his safe harbor agreement 
allowed him to control animals if they impacted his livestock 
operations (USFWS 2005, pp. 5-6). We have completed six similar Utah 
prairie dog safe harbor agreements, all of which include the ability 
for a landowner to control some prairie dogs where they may impact 
their agricultural activities.
    Additionally, there may be opportunities to protect Utah prairie 
dogs and their habitats through fee-title purchase or conservation 
easements with willing landowners. We are more likely to gain community 
support for these land protection mechanisms if we can provide 
regulatory flexibility for neighboring landowners. For example, in 
2001, the UDWR and Iron County purchased 73 ha (180 ac) in Parowan 
Valley, and renamed the area as the Parowan Valley Wildlife Management 
Area, designating it for the protection of a large Utah prairie dog 
colony. At the time, there was concern that neighboring landowners 
would be negatively impacted if prairie dog management activities 
resulted in the growth and expansion of the existing prairie dog 
colony. Therefore, to support the purchase and protection of this 
important colony, we worked with the landowner to allow the control of 
prairie dogs (above a 2001 baseline number on each property) for 
properties within 0.8 km (0.5 mi) of the Parowan Valley Wildlife 
Management Area. Because of the issuance of this permit, the local 
community supported the purchase and management of the property for 
conservation of the Utah prairie dog.
    Another opportunity to promote the use of conservation easements is 
the Utah prairie dog habitat credit exchange program (hereafter 
referred to as the ``credit exchange program'') or similar conservation 
banking opportunities. The credit exchange program will allow a program 
administrator (in this case, the Panoramaland Resource Conservation and 
Development Council, Inc.) to enroll willing landowners in a Utah 
prairie dog conservation bank that is beneficial to landowners, 
developers, and prairie dogs. A pilot program implemented in 2010 will 
pay landowners to conserve Utah prairie dogs. Conservation on private 
lands can then be used to mitigate development in Utah prairie dog 
habitat. The credit exchange program, or other conservation banking 
opportunities, can help us promote mitigation in a way that provides a 
net benefit to the species by incorporating private lands and 
protecting prairie dogs on these lands with perpetual conservation 
easements (Environmental Defense 2009, p. 1). Again, we believe that we 
are more likely to gain community support for these land protection 
mechanisms if we can provide regulatory flexibility for neighboring 
landowners.
    The protection of many conservation lands will occur as mitigation 
required under section 10(a)(1)(B) incidental take permits and habitat 
conservation plans (HCPs). The existing Iron County HCP allows the use 
of mitigation banks to offset the impacts of development to Utah 
prairie dogs (Iron County 2006). We are working with the counties and 
local communities to develop a rangewide HCP to replace the Iron County 
HCP. It is too early to describe specific mitigation scenarios under a 
new rangewide HCP, other than to summarize our intent that a new HCP 
contribute to recovery and simultaneously accommodate urban growth. 
Conservation banking agreements and conservation easements to conserve 
Utah prairie dog habitats on private or other non-Federal lands are 
likely tools that we will use under this new HCP. We believe that local 
support for any conservation lands set aside for the species in 
association with HCPs, especially in urban or agricultural areas, will 
be greatly enhanced by our ability to control the expansion of colonies 
or dispersal of individual prairie dogs onto neighboring lands.
    Many of the enrolled conservation lands will likely be in or 
adjacent to agricultural production. The goal in establishing 
conservation lands is to increase prairie dog populations. As such, we 
believe there will be site-specific needs to control some animals 
adjacent to the enrolled conservation lands, on neighboring 
agricultural and other private properties. Our ability to provide 
sufficient control measures is essential if we are to gain increased 
interest on the part of private landowners and local communities in the 
long-term conservation of the Utah prairie dog.
    Collectively, the available information indicates it would be 
prudent to limit where UDWR can permit take to (1) agricultural lands 
being physically or economically impacted by Utah prairie dogs when the 
spring count on the agricultural lands is five or more individuals and 
(2) private properties within 0.8 km (0.5 mi) of Utah prairie dog 
conservation land. Limiting the existing take authority to agricultural 
lands is consistent with UDWR permitting practices under the current 
special rule. It is in these areas that prairie dogs achieve population 
densities and abundances that are higher than their counterparts in 
native semiarid grassland communities. In addition, allowing take on 
private property near conservation lands would promote landowner and 
community support for Utah prairie dog that is necessary to achieve 
recovery on non-Federal lands. The ability to allow some control of 
prairie dogs is prudent from a biological and social context, and has 
and will continue to enhance our ability to recover the species. Utah 
prairie dog populations have remained stable to increasing throughout 
implementation of the current special rule and past practices, as 
implemented under the UDWR permit system.

Limiting the Amount and Distribution of Direct Take That Can Be 
Permitted

    The current special rule allows UDWR to permit take for a maximum 
of 6,000 animals annually between June 1 and December 31, without 
additional restrictions as long as such take is not having an effect 
that is inconsistent with Utah prairie dog conservation. According to 
the literature, fixed harvest rates can lead to extirpation of prairie 
dog colonies, at least in the case of black-tailed prairie dogs (Reeve 
and Vosburgh 2006, pp. 123-125). This colony loss will occur more 
rapidly with larger fixed annual harvests (Reeve and Vosburgh 2006, pp. 
123-125). From 1985 through 2009, the total estimated rangewide 
population (including juveniles) ranged from 23,752 to 54,194 animals 
(see Table 2). Thus, since 1991,

[[Page 31914]]

if UDWR had authorized the maximum amount of allowed take (6,000 
animals), it would have represented 11 to 25 percent of the total 
estimated annual rangewide population (adults and juveniles). The UDWR 
has never authorized the current rule's maximum allowed take (6,000 
animals). Actual reported take has always been considerably below the 
maximum allowance. Nevertheless, when considered alongside the specific 
existing data for the Utah prairie dog, the information from available 
literature that pertains to harvest of prairie dogs in general seems to 
indicate that additional safeguards would be prudent.
    According to the literature, a harvest rate based on a percentage 
of the known population can help ensure maintenance of a sustainable 
population, with no risk of extinction (Reeve and Vosburgh 2006, p. 
123). This rule proposes to maintain the current special rule's annual 
upper permitted take limit of 6,000 animals. However, this rule 
proposes to limit the maximum allowable total permitted take to no more 
than 10 percent of the estimated rangewide population annually. Take 
associated with agricultural lands could never exceed 7 percent of the 
estimated annual rangewide population. The remaining allowable take 
would be reserved for properties neighboring conservation lands.
    In practice, UDWR implementation of the current special rule has 
followed a fluctuating harvest-rate model. Under the UDWR system, 
permitted take has averaged 5.7 percent of the total rangewide 
population estimate (range equals 1.8 to 12.9 percent), with actual 
take averaging 2.5 percent of the rangewide population (range equals 
0.9 to 5.3 percent). With these levels of permitted and reported take, 
rangewide Utah prairie dog populations have, to date, remained stable 
to increasing (see Figure 1). While our proposed limit on allowable 
take is above the average actual take, UDWR-permitted take associated 
with agricultural lands has exceeded the proposed standard for 
agricultural lands (7 percent) seven times since 1985. Thus, this 
proposal would be more restrictive than past practice in some years and 
less restrictive than past practice in other years. On the whole, we 
believe the proposed limit on take would ensure that this rule does not 
negatively impact the stable-to-increasing Utah prairie dog population 
trends of the last 25 years. Continuing to allow sufficient take limits 
will help ensure that private landowners and local communities are 
willing to work with us on prairie dog conservation efforts.
    Furthermore, the proposal would limit within-colony take on 
agricultural lands to not exceed one-half of a colony's estimated 
annual productivity (approximately 36 percent of the total estimated 
colony population). This limit is consistent with UDWR's past practice, 
which has successfully controlled prairie dogs in site-specific 
locations without negatively impacting recovery of the species (Day, 
pers. comm. 2010). In fact, since 1985 we have never verified the loss 
of a prairie dog colony because of take permitted by UDWR (Day, pers. 
comm. 2010). Furthermore, according to UDWR personnel, prairie dog 
counts have remained stable to increasing on sites where permits are 
repeatedly requested, indicating a self-sustaining population and, 
sometimes, the expansion of these colonies despite long-term control 
efforts (Day, pers. comm. 2010). Consequently, we believe the proposed 
actions are sufficient to address prairie dog control issues and Utah 
prairie dog recovery simultaneously.
    Based on available models, we considered a more restrictive 
standard. The proposed standard equates to permitted take of up to 36 
percent of the total estimated colony population. Modeling for black-
tailed and Gunnison prairie dog colonies indicates that harvest rates 
of 25 percent and less than 20 percent, respectively, are sustainable 
(Reeve and Vosburgh 2006, p. 123; Colorado Division of Wildlife 2007, 
pp. 135-137). However, in our view, the Utah prairie dog situation 
differs from the ones modeled. One major difference is that prairie dog 
productivity and survivorship, key assumptions for these models, are 
substantially higher in colonies occurring on irrigated agricultural 
land than they are on native semiarid grasslands (Collier 1975, pp. 42-
43, 53; Crocker-Bedford and Spillet 1981, p. 1, 15-17). These 
differences suggest that existing models for black-tailed and Gunnison 
prairie dogs are poor predictors of likely impacts to Utah prairie 
dogs. Thus, the suggested sustainable harvest rates recommended by 
these models are not directly applicable to agricultural lands occupied 
by Utah prairie dogs. Instead, we believe a more reliable indicator of 
likely future impacts is the 25 years of data from UDWR that indicate 
that this standard will provide for the conservation of the species 
(UDWR 2010b, entire). Utah prairie dog populations have remained stable 
to increasing throughout implementation of the current special rule and 
past practices, as implemented under the UDWR permit system. Thus, this 
rule's proposal to limit within-colony take on agricultural lands to 
not exceed one-half of a colony's estimated annual productivity 
(approximately 36 percent of the total estimated colony population) is 
consistent with UDWR's past practice.
    We are requesting comments on this issue and may consider a 
stricter within-colony take limit in a final rule if available data 
indicate such restrictions would be necessary and advisable to provide 
for the conservation of the species. We plan to work with the UDWR to 
parse the available data to assist in further evaluating this issue in 
time for the final rule. We request data, analysis, or expert opinion 
which might assist in this evaluation.
    As noted above, under this proposal, a maximum of 7 percent of the 
10-percent take limit can be allocated to agricultural lands. The 
remaining take (3 percent or more, depending on the percent of take 
associated with agricultural lands) would be reserved for UDWR-
permitted take on private property within 0.8 km (0.5 mi) of Utah 
prairie dog conservation lands. This level of take will allow us to 
address impacts to private lands associated with increased prairie dog 
distribution and numbers that is likely to result from the rangewide 
protection of conservation properties. Without such ability, private 
landowners and local governments would likely not support, and could 
prevent, much if not all recovery progress on private lands. We have 
determined that the ability to respond to this need, in a carefully 
regulated environment, is necessary and advisable for the conservation 
of the Utah prairie dog.
    The extent of take on property adjacent to conservation lands would 
be further limited to not reduce populations below the baseline 
estimated total (summer) population size that existed on the adjacent 
lands prior to the establishment of the conservation property. This 
provision provides assurances to the landowners that they will not 
incur new Federal regulatory restrictions as a result of their habitat 
improvements and the reintroduction of prairie dogs on a conservation 
property. Conversely, this provision assists us with the creation of 
conservation properties by allowing landowners to take prairie dogs 
down to, but not below, the established baseline population--the 
property's baseline is the highest estimated population size on the 
property during the 5 years prior to establishment of the conservation 
property. Thus, this provision will provide a conservation

[[Page 31915]]

benefit for Utah prairie dogs by promoting landowner support for such 
efforts while not reducing populations below the established baseline. 
Similar provisions have been incorporated into all previously approved 
Utah prairie dog safe harbor agreements.

Limiting Methods Allowed To Implement Direct Take

    The current special rule does not restrict the method or type of 
take UDWR can permit. In practice, UDWR has permitted the control of 
Utah prairie dogs through translocation efforts, trapping intended to 
lethally remove prairie dogs, and shooting. This proposal would limit 
methods of take that can be permitted to be consistent with this past 
practice.
    Translocations of Utah prairie dogs are used to increase the 
numbers of prairie dog colonies in new locations across the species' 
range. Translocation of Utah prairie dogs occurs within and between 
recovery units in part to address the species' limited levels of 
genetic diversity (USFWS 1991; Roberts et al. 2000). Translocation 
efforts include habitat enhancement at selected translocation sites and 
live trapping of Utah prairie dogs from existing colonies to move them 
to the selected translocation sites. In short, translocations play an 
important role in establishing new colonies and facilitating gene flow.
    Thus, translocation will be one of the approved methods of taking 
Utah prairie dogs. Currently, only UDWR performs Utah prairie dog 
translocations. This proposal would allow all properly trained and 
permitted individuals to translocate prairie dogs to new colony sites 
in support of recovery actions, provided these parties comply with 
current Service-approved guidance. Translocated prairie dogs count 
toward the take limits established by the existing special rule and 
will continue to count toward the more restricted take limits proposed 
in this rule. Translocation activities must comply with current Service 
approved guidelines (at present, the approved guidelines are the 2006 
Recommended Translocation Procedures (USFWS 2010, appendix D)) in order 
for the provisions of this proposed rule to apply.
    While translocation is and shall continue to be the preferred take 
option, largely due to its contribution to recovery, finite staff 
resources and a limited availability of suitable translocation sites 
require that other tools also be available. Thus, this proposal would 
limit methods of intentional lethal take to forms with a proven success 
record as demonstrated by past UDWR permitting, including lethal 
removal through trapping and shooting. Such UDWR-permitted controlled 
take can be carried out by the landowner or the U.S. Department of 
Agriculture--Wildlife Services with the landowner's permission. Use of 
these methods has occurred over the past 25 years, and rangewide 
population and individual colonies subject to take have remained stable 
to increasing (Day, pers. comm. 2010).
    This rule proposes to specifically prohibit drowning and poisoning 
as methods of permissible lethal control. Drowning or poisoning are 
typically applied across large areas and usually kill large numbers of 
prairie dogs (Collier 1975, p. 55). These techniques have not been 
employed by UDWR under the existing rule and are explicitly prohibited 
by this proposal because they do not allow control agents to target a 
specific number of prairie dogs or track actual take.
    Most studies on the impacts of shooting are related to recreational 
hunting on black-tailed prairie dog colonies. This information 
indicates that recreational shooting of other prairie dog species can 
cause localized effects on a population (Stockrahm 1979, pp. 80-84; 
Knowles 1988, p. 54; Vosburgh 1996, pp. 13, 15, 16, and 18; Vosburgh 
and Irby 1998, pp. 366-371; Pauli 2005, p. 1; Reeve and Vosburgh 2006, 
p. 144), but populations typically rebound thereafter (Knowles 1988, p. 
54; Vosburgh 1996, pp. 16, 31; Dullum et al. 2005, p. 843; Pauli 2005, 
p. 17; Cully and Johnson 2006, pp. 6-7). Extirpations due to 
recreational shooting, while documented, are rare (Knowles 1988, p. 
54).
    Impacts to other species of prairie dog from unregulated or 
minimally regulated recreational shooting, as cited above, are likely 
to be more pronounced than impacts to Utah prairie dog UDWR-permitted 
control, given timing and take restrictions. In terms of timing, the 
existing special rule restricts UDWR- permitted taking to June 1 to 
December 31. Shooting from March to May would likely kill pregnant or 
lactating females so that neither they nor their offspring would 
reproduce the following year (Knowles 1988, p. 55). If the timing of 
shooting is restricted to times outside of the breeding and young-
rearing (lactating) periods, then impacts can be minimized (Vosburgh 
and Irby 1998, p. 370; Colorado Division of Wildlife 2007, pp. 135-
137). In fact, as described in this and previous rules (49 FR 22333, 
May 29, 1984; 56 FR 27439-27441, June 14, 1991), controlling prairie 
dogs when populations are at high densities (i.e., particularly, during 
the summer months when the aboveground prairie dog population explodes 
as the juveniles emerge from their burrows) may enhance long-term 
population growth rates by reducing competition for limited resources 
and increasing overwinter survival (see ``Limiting Where Direct Take 
Can Be Permitted''). This information is supported by observations that 
Utah prairie dog colonies are maintained at high levels on properties 
that have received multiple annual control permits despite over 25 
years of permitted control under the current special rule (Day, pers. 
comm. 2010). According to the literature and on-the-ground experience 
with Utah prairie dogs, the current regulation regarding timing of 
permitted Utah prairie dog control, when combined with other take 
limitations outlined elsewhere in this rule (e.g., a harvest rate based 
on a percentage of the known population and restrictions on lands where 
take is allowed), is sufficient to allow long-term stable-to-improving 
population trends to continue.
    Another potential concern is lead poisoning as an indirect impact 
from shooting. Specifically, shooting may increase the potential for 
lead poisoning in predators and scavengers consuming shot prairie dogs 
(Reeve and Vosburgh 2006, p. 154). This risk may extend to prairie 
dogs, which have occasionally been observed scavenging carcasses 
(Hoogland 1995, p. 14). Expanding bullets leave an average of 228.4 
milligrams (mg) (3.426 grains) of lead in a prairie dog carcass, while 
nonexpanding bullets averaged 19.8 mg (0.297 grains) of lead (Pauli and 
Buskirk 2007, p. 103). The amount of lead in a single prairie dog 
carcass shot with an expanding bullet is potentially sufficient to 
acutely poison scavengers or predators, and may provide an important 
portal for lead entering wildlife food chains (Pauli and Buskirk 2007, 
p. 103). A wide range of sublethal toxic effects is also possible from 
smaller quantities of lead (Pauli and Buskirk 2007, p. 103).
    At the present time, we do not have information to indicate that 
these theoretical concerns are translating into impacts on Utah prairie 
dogs. UDWR-permitted take is limited to agricultural lands where 
prairie dogs are causing physical or economic damage, and private lands 
adjacent to conservation lands. Therefore, any potential site-specific 
impacts are limited in scope and likely of minor consequence to the 
Utah prairie dog. Limitations on the timing of allowed control further 
limit the scope of potential impacts. Our December 3, 2009, black-
tailed prairie

[[Page 31916]]

dog status review came to a similar conclusion when it found use of 
expandable lead shot did not pose a substantial risk of lead poisoning 
to surviving prairie dogs due to scavenging carcasses (74 FR 63343).
    Given these findings, this rule does not propose to prohibit 
certain types of shot (expandable vs. nonexpendable or lead vs. 
nonlead). However, we are accepting comments on this issue and may 
consider shot-type restrictions in a final rule if available data 
indicate such restrictions would be necessary and advisable to provide 
for the conservation of the species.

Incidental Take From Normal Agricultural Practices

    Normal agricultural practices can result in the unlawful incidental 
take (harm, harass, or kill) of Utah prairie dogs. For example, 
agricultural equipment can accidentally crush burrows or individual 
animals. Similarly, burrows also can be flooded by normal irrigation 
practices and thus made uninhabitable for Utah prairie dogs, or result 
in incidental mortality. Although the incidental take permit for the 
Iron County HCP (Iron County 2006, entire) authorizes normal 
agricultural practices as a form of non-permanent take in Iron County, 
this incidental take permit does not extend to address these issues for 
agricultural users across the entire range of the Utah prairie dog.
    This rule proposes to exempt incidental take resulting from 
agricultural practices on legitimately operating agricultural lands. 
Exempted practices would include plowing to depths not exceeding 46 
centimeters (cm) (18 in.), discing, harrowing, irrigating crops, 
mowing, harvesting, and bailing, as long as the activities are not 
intended to eradicate Utah prairie dogs. These are traditional 
practices on this landscape.
    While it is possible that some incidental mortality or harassment 
results from these activities, no available information indicates 
sizable or noteworthy impacts. Similarly, the available information 
(namely, annual Utah prairie dog surveys conducted by UDWR rangewide; 
see Distribution and Abundance, above) does not indicate impacts at the 
colony or species level. The continued presence of large, persistent 
colonies on agricultural lands despite ongoing agricultural uses 
indicates any negative impacts are minor and temporary. Agricultural 
operations make the land more productive than it would be in its 
natural state. Provided that careful regulation of direct take 
continues, this increased productivity appears, based on individual 
colony persistence and abundance data, to more than offset any 
temporary negative impacts that are created by the incidental take of 
individual prairie dogs.
    Because such incidental take would not be limited in quantity, it 
is imperative we build in safeguards to prevent abuse. Therefore, this 
rule proposes that the above activities would be exempted from 
incidental take prohibitions on agricultural lands, only in accordance 
with the previously described Utah Farmland Assessment Act of 1969 
(Utah Code Annotated Sections 59-2-501 through 59-2-515). To be 
considered agricultural land under this proposed rule, lands must meet 
the following requirements: They must meet the general classification 
of irrigated, dryland, grazing land, orchard, or meadow; must be 
capable of producing crops or forage; must be at least 2 contiguous ha 
(5 contiguous ac) (smaller parcels may qualify where devoted to 
agriculture use in conjunction with other eligible acreage under 
identical legal ownership); must be managed in such a way that there is 
a reasonable expectation of profit; must have been devoted to 
agricultural use for at least 2 successive years immediately preceding 
the year in which application is made; and must meet State average 
annual (per acre) production requirements.
    Limiting the take to such lands ensures only legitimately operating 
agricultural producers will be able to apply the provisions in this 
proposed rule. As previously discussed, available information indicates 
that prairie dog populations on agricultural lands are not negatively 
affected by ongoing standard agricultural practices. In fact, 25 years 
of data under the current special rule show stable-to-increasing 
rangewide prairie dog population trends. Providing the safeguard of 
specifically defining agricultural lands ensures that we limit the 
allowable incidental take to specific types of agricultural uses, of 
which any possible resulting negative impact would be only a minor and 
temporary accompaniment to the continued long-term benefits to the 
species.

Effects of These Proposed Rules

    The existing special rule (56 FR 27438, June 14, 1991; 50 CFR 
17.40(g)) authorizes UDWR to permit take of up to 6,000 animals on 
private land within the species' range annually. This amendment 
proposes new restrictions on direct take previously authorized and 
proposes a new incidental take authorization. Table 3 illustrates the 
current regulatory restrictions alongside those proposed in this rule.

   Table 3--Comparison of Current Special Rule, Current Practice, and
                           Proposed Amendments
------------------------------------------------------------------------
                                 Current rule and
                                     practice       Proposed amendments
------------------------------------------------------------------------
Where Direct Take Can Be        Private lands....  Direct take permitted
 Permitted.                                         by the State would
                                                    be limited to:
                                                    Agricultural land
                                                    being physically or
                                                    economically
                                                    impacted by Utah
                                                    prairie dogs when
                                                    the spring count on
                                                    the agricultural
                                                    lands is five or
                                                    more individuals;
                                                    and private
                                                    properties within
                                                    0.8 km (0.5 mi) of
                                                    Utah prairie dog
                                                    conservation land.
Amount of Rangewide Direct      6,000 animals      The upper permitted
 Take Allowed.                   annually.          take limit of 6,000
                                                    animals annually
                                                    remains unchanged,
                                                    but would be limited
                                                    as follows: May not
                                                    exceed 10 percent of
                                                    the estimated
                                                    rangewide population
                                                    annually; and, on
                                                    agricultural lands,
                                                    may not exceed 7
                                                    percent of the
                                                    estimated annual
                                                    rangewide population
                                                    annually.
Site-Specific Limits on Amount  No restrictions    On agricultural
 of Direct Take.                 specified.         lands, within-colony
                                                    take would be
                                                    limited to one-half
                                                    of a colony's
                                                    estimated annual
                                                    production
                                                    (approximately 36
                                                    percent of estimated
                                                    total population).
                                                    On properties
                                                    neighboring
                                                    conservation lands,
                                                    take would be
                                                    restricted to
                                                    animals in excess of
                                                    the baseline
                                                    population. The
                                                    baseline population
                                                    is the highest
                                                    estimated total
                                                    (summer) population
                                                    size on that
                                                    property during the
                                                    5 years prior to
                                                    establishment of the
                                                    conservation
                                                    property.
Timing of Permitted Direct      June 1 to          Unchanged.
 Take.                           December 31.

[[Page 31917]]

 
Methods Allowed to Implement    No restrictions    Direct take would be
 Direct Take.                    specified.         limited to
                                                    activities
                                                    associated with
                                                    translocation
                                                    efforts by trained
                                                    and permitted
                                                    individuals
                                                    complying with
                                                    current Service-
                                                    approved guidance,
                                                    trapping intended to
                                                    lethally remove
                                                    prairie dogs, and
                                                    shooting. Actions
                                                    intended to drown or
                                                    poison prairie dogs
                                                    would be prohibited.
Service Ability to Further      The Service may    Unchanged.
 Restrict Direct Take.           immediately
                                 prohibit or
                                 restrict such
                                 taking as
                                 appropriate for
                                 the conservation
                                 of the species.
Incidental Take...............  Not authorized...  Utah prairie dogs may
                                                    be taken when take
                                                    is incidental to
                                                    otherwise legal
                                                    activities
                                                    associated with
                                                    standard
                                                    agricultural
                                                    practices (see rule
                                                    for specifics).
------------------------------------------------------------------------

    First, this proposal would restrict where direct take can be 
permitted by the UDWR to: (1) Agricultural land being physically or 
economically impacted by Utah prairie dogs when the spring count on the 
agricultural lands is five or more individuals; and (2) on private 
property within 0.8 km (0.5 mi) of Utah prairie dog conservation land.
    Second, this proposal would limit the amount and distribution of 
direct take that can be permitted by UDWR. Total take would not exceed 
10 percent of the estimated annual rangewide population, with an upper 
permitted take limit of 6,000 animals. On agricultural lands, permitted 
take would be limited to 7 percent of the estimated annual rangewide 
population and within colony take would be limited to one-half of a 
colony's estimated annual productivity. On properties neighboring 
conservation lands, the remaining take (3 percent of the estimated 
annual rangewide population or more, depending on the amount permitted 
on agricultural lands) would be restricted to animals in excess of the 
baseline population.
    Third, this proposal would limit methods of take that can be 
permitted by the UDWR to include: (1) Activities associated with 
translocation efforts by trained and permitted individuals complying 
with current Service-approved guidance; (2) trapping intended to 
lethally remove prairie dogs; and (3) shooting. Regarding shooting, we 
are accepting comments on whether to limit the type of shot allowed.
    These limitations on direct take are largely consistent with past 
UDWR practice. Slight modifications are proposed where implementation 
data indicate modifications are warranted.
    Additionally, this proposal would exempt standard agricultural 
practices from incidental take prohibitions on private property meeting 
the Utah Farmland Assessment Act of 1969 (Utah Code Annotated Sections 
59-2-501 through 59-2-515) definition of agricultural lands. These 
mortalities are in addition to the direct or intentional take described 
above. Allowable practices would include plowing to depths that do not 
exceed 46 cm (18 in.), discing, harrowing, irrigating crops, mowing, 
harvesting, and bailing, as long as the activities are not intended to 
eradicate Utah prairie dogs.
    Finally, the Service maintains the right, as laid out under the 
existing special rule, to immediately prohibit or restrict UDWR-
permitted taking. Restrictions on permitted taking could be implemented 
without additional rulemaking, as appropriate for the conservation of 
the species, if we receive evidence that taking pursuant to the special 
rule is having an effect that is inconsistent with the conservation of 
the Utah prairie dog.
    These proposed new restrictions on direct take and the proposed new 
incidental take provision will support the conservation of the species 
while still providing relief and conservation incentives to private 
landowners. On the whole, we believe the proposed rule, if finalized, 
would help maintain the stable-to-increasing (more likely increasing) 
long-term population trends we have seen over the last 25 years, and 
facilitate the recovery of the Utah prairie dog.

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (E.O. 12866). OMB bases its determination upon 
the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government;
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions;
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients; or
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. Thus, for a regulatory 
flexibility analysis to be required, impacts must exceed a threshold 
for ``significant impact'' and a threshold for a ``substantial number 
of small entities.'' See 5 U.S.C. 605(b). Based on the information that 
is available to us at this time, we certify that this regulation will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    Utah prairie dogs have been Federally listed under the ESA since 
the early 1970s (38 FR 14678, June 4, 1973; 39 FR 1158, January 4, 
1974). A 4(d) special rule has been in place since 1984 that provides 
protections deemed necessary

[[Page 31918]]

and advisable to provide for the conservation of the species (49 FR 
22330, May 29, 1984; 56 FR 27438, June 14, 1991). These special 
regulations allow limited take of Utah prairie dogs on private land 
from June 1 through December 31, as permitted by UDWR (50 CFR 
17.40(g)). While this proposed rule places limits on the current 
special rule, the proposed changes are largely consistent with current 
UDWR permitting practices. Because this proposal largely 
institutionalizes current practices, there should be little or no 
increased costs associated with this proposed regulation compared to 
the past similar special rules that were in effect for the last several 
decades.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that if promulgated, the proposed 
amendment would not have a significant economic impact on a substantial 
number of small entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) If adopted, this proposal will not produce a Federal mandate. 
In general, a Federal mandate is a provision in legislation, statute, 
or regulation that would impose an enforceable duty upon State, local, 
or Tribal governments, or the private sector, and includes both 
``Federal intergovernmental mandates'' and ``Federal private sector 
mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and Tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding,'' and the State, local, 
or Tribal governments ``lack authority'' to adjust accordingly. Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    This proposed rule would not impose a legally binding duty on non-
Federal Government entities or private parties. Instead, this proposed 
amendment to the existing special rule proposes to establish take 
authorizations and limitations deemed necessary and advisable to 
provide for the conservation of the Utah prairie dog. Application of 
the provisions within this proposed rule, as limited by existing 
regulations and this proposed amendment, is optional.
    (b) We do not believe that this rule would significantly or 
uniquely affect small governments. The State of Utah originally 
requested measures such as this proposed regulation to assist with 
reducing conflicts between Utah prairie dogs and local landowners on 
agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR 
actively assists with implementation of the current special rule, and 
would do the same under this proposed regulation, through a permitting 
system. Thus, no intrusion on State policy or administration is 
expected; roles or responsibilities of Federal or State governments 
will not change; and fiscal capacity will not be substantially directly 
affected. The special rule operates to maintain the existing 
relationship between the States and the Federal government. 
Furthermore, the proposed limitations on where permitted take can 
occur, the amount of take that can be permitted, and methods of take 
that can be permitted, are largely consistent with current UDWR 
practices. Therefore, the rule would not have a significant or unique 
effect on State, local, or Tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act is not required.

Takings

    This action is exempt from the requirements of E.O. 12630 
(Government Actions and Interference with Constitutionally Protected 
Private Property Rights). According to section VI (D) (3) of the 
Attorney General's Guidelines for the Evaluation of Risk and Avoidance 
of Unanticipated Takings, regulations allowing the take of wildlife 
issued under the ESA fall under a categorical exemption. This proposed 
amendment pertains to regulation of take (defined by the ESA as ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct'') deemed 
necessary and advisable to provide for the conservation of the Utah 
prairie dog. Thus, this exemption applies to this action.
    Regardless, we do not believe this action would pose significant 
takings implications. This rule will substantially advance a legitimate 
government interest (conservation and recovery of listed species). 
However, it will not deny property owners economically viable use of 
their land, and will not present a bar to all reasonable and expected 
beneficial use of private property. We believe the existing special 
regulation and the proposed amendments provide substantial flexibility 
to our partners while still providing for the conservation of the Utah 
prairie dog. Should additional take provisions be required, an 
applicant has the option to develop a Habitat Conservation Plan and 
request an incidental take permit (see Section 10(a)(1)(B) of the ESA). 
This approach would allow permit holders to proceed with an activity 
that is legal in all other respects, but that results in the 
``incidental'' take of a listed species.
    We have concluded that this proposed action would not result in any 
takings of private property. Should any takings implications associated 
with the proposed amendment be realized, they will likely be 
insignificant.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule 
would not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this proposed amendment with, appropriate 
State resource agencies in Utah. The State of Utah originally requested 
measures such as this proposed regulation to assist with reducing 
conflicts between Utah prairie dogs and local landowners on 
agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR 
actively assists with implementation of the current special rule, and 
would do the same under this proposed regulation, through a permitting 
system. Thus, no intrusion on State policy or administration is 
expected; roles or responsibilities of Federal or State governments 
will not change, and fiscal capacity will not be substantially directly 
affected. The special rule operates and, if amended, would continue to 
operate to maintain the existing relationship between the State and the 
Federal government. Therefore, this rule does not have significant

[[Page 31919]]

Federalism effects or implications to warrant the preparation of a 
Federalism Assessment pursuant to the provisions of Executive Order 
13132.

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed this amendment to the existing 
special rule for the Utah prairie dog in accordance with the provisions 
of the ESA. Under section 4(d) of the ESA, the Secretary may extend to 
a threatened species those protections provided to an endangered 
species as deemed necessary and advisable to provide for the 
conservation of the species. The amendments proposed here satisfy this 
standard.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    In 1983, upon recommendation of the Council on Environmental 
Quality, the Service determined that National Environmental Policy Act 
(NEPA) documents need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the ESA. The Service subsequently 
expanded this determination to section 4(d) rules. A section 4(d) rule 
provides the appropriate and necessary prohibitions and authorizations 
for a species that has been determined to be threatened under section 
4(a) of the ESA. It is our view that NEPA procedures unnecessarily 
overlay NEPA's own matrix upon the ESA section 4 decisionmaking 
process. For example, the opportunity for public comment--one of the 
goals of NEPA--is already provided through section 4 rulemaking 
procedures. This determination was upheld in Center for Biological 
Diversity v. U.S. Fish and Wildlife Service, No. 04-04324 (N.D. Cal. 
2005).
    However, out of an abundance of caution, we intend to comply with 
the provisions of NEPA for this rulemaking. Thus, we are analyzing the 
impact of this proposed modification to the existing special rule and 
will determine if there are any new significant impacts or effects 
caused by this proposed rule. A draft environmental assessment will be 
prepared on this proposed action, and will be available for public 
inspection and comments when completed. All appropriate NEPA documents 
will be finalized before this rule is finalized.

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) 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 the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Government-to-Government Relationship With Tribes

    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 the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. Therefore, we intend to coordinate 
with affected Tribes within the range of the Utah prairie dog. We will 
fully consider all of the comments on the proposed special regulations 
that are submitted by Tribes and Tribal members during the public 
comment period, and we will attempt to address those concerns, new 
data, and new information where appropriate.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this action to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from our Utah Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons stated in the preamble, the Service proposes to 
amend part 17, chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.40 by revising paragraphs (g)(1) and (g)(3) and 
adding paragraphs (g)(4) and (g)(5) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (g) * * *
    (1) Except as noted in paragraphs (g)(2) through (g)(4) of this 
section, all prohibitions of Sec.  17.31(a) and (b) and exemptions of 
Sec.  17.32 apply to the Utah prairie dog.
* * * * *
    (3) Direct or intentional take permitted by the Utah Division of 
Wildlife Resources. Methods for

[[Page 31920]]

controlling Utah prairie dogs are limited to activities associated with 
translocation efforts by trained and permitted individuals complying 
with current Service-approved guidance, trapping intended for lethal 
removal, and shooting. Actions intended to drown or poison Utah prairie 
dogs are prohibited. Under the provisions of paragraph (g)(2) of this 
section and permitted by the Utah Division of Wildlife Resources, 
direct or intentional take is limited to agricultural land and private 
property near conservation land as follows:
    (i) Agricultural land. (A) Take may be permitted only on 
agricultural land being physically or economically affected by Utah 
prairie dogs, and only when the spring count on the agricultural lands 
is five or more individuals; and
    (B) The land must:
    (1) Meet the general classification of irrigated, dryland, grazing 
land, orchard, or meadow;
    (2) Be capable of producing crops or forage;
    (3) Be at least 2 contiguous ha (5 contiguous ac) in area (smaller 
parcels may qualify where devoted to agricultural use in conjunction 
with other eligible acreage under identical legal ownership);
    (4) Be managed in such a way that there is a reasonable expectation 
of profit;
    (5) Have been devoted to agricultural use for at least 2 successive 
years immediately preceding the year in which application is made; and
    (6) Meet State average annual (per-acre) production requirements.
    (ii) Private property near conservation land. (A) Take may be 
permitted on private properties within 0.8 km (0.5 mi) of Utah prairie 
dog conservation land.
    (B) Conservation lands are defined as non-Federal areas set aside 
for the preservation of Utah prairie dogs and are managed specifically 
or primarily toward that purpose. Conservation lands may include, but 
are not limited to, properties set aside as conservation banks, fee- 
title purchased properties, properties under conservation easements, 
and properties subject to a safe harbor agreement (see Sec.  17.22.). 
Conservation lands do not include Federal lands.
    (iii) Permitted take on agricultural lands and private property 
near conservation land. (A) The Utah Division of Wildlife Resources 
will ensure that permitted take does not exceed 10 percent of the 
estimated rangewide population annually.
    (B) On agricultural lands, the Utah Division of Wildlife Resources 
will limit permitted take to 7 percent of the estimated annual 
rangewide population and will limit within-colony take to one-half of a 
colony's estimated annual production.
    (C) In setting take limits on properties neighboring conservation 
lands, the Utah Division of Wildlife Resources will consider the amount 
of take that occurs on agricultural lands. The State will restrict the 
remaining permitted take (the amount that would bring the total take up 
to 10 percent of the estimated annual rangewide population) on 
properties neighboring conservation lands to animals in excess of the 
baseline population. The baseline population of neighboring lands is 
the highest estimated population on that property during the 5 years 
prior to establishment of the conservation property.
    (D) Translocated Utah prairie dogs will count toward the take 
limits in paragraphs (g)(3)(iii)(B) and (g)(3)(iii)(C) of this section.
    (4) Incidental take. Utah prairie dogs may be taken when take is 
incidental to otherwise-legal activities associated with standard 
agricultural practices on agricultural lands. These mortalities are in 
addition to the direct or intentional take provisions in paragraphs 
(g)(2) and (g)(3) of this section. Acceptable practices include plowing 
to depths that do not exceed 46 cm (18 in.), discing, harrowing, 
irrigating crops, mowing, harvesting, and bailing, as long as the 
activities are not intended to eradicate Utah prairie dogs.
    (5) If the Service receives evidence that take pursuant to 
paragraphs (g)(2) through (g)(4) of this section is having an effect 
that is inconsistent with the conservation of the Utah prairie dog, the 
Service may immediately prohibit or restrict such take as appropriate 
for the conservation of the species.
* * * * *

    Dated: May 18, 2011.
Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-13684 Filed 6-1-11; 8:45 am]
BILLING CODE 4310-55-P