[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Rules and Regulations]
[Pages 46158-46183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18284]



[[Page 46157]]

Vol. 77

Thursday,

No. 149

August 2, 2012

Part II





Department of the Interior





-----------------------------------------------------------------------





Fish and Wildlife Service





-----------------------------------------------------------------------





50 CFR Part 17





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

  Federal Register / Vol. 77 , No. 149 / Thursday, August 2, 2012 / 
Rules and Regulations  

[[Page 46158]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2011-0030: FXES11130900000C6-123-FF09E30000: 
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: Under the Endangered Species Act of 1973, as amended (ESA), 
we, the U.S. Fish and Wildlife Service (Service/USFWS), revise our 
special regulations for the conservation of the Utah prairie dog. We 
are revising our special regulations to provide limits to the allowable 
take, including limits to where permitted take can occur--agricultural 
lands, properties within 0.8 kilometers (km) (0.5 miles (mi)) of 
conservation lands, and areas where Utah prairie dogs cause serious 
human safety hazards or disturb the sanctity of significant human 
cultural or human burial sites; the amount of take that can be 
permitted; methods of take that can be permitted; and seasonal 
limitations on direct lethal take. We are also allowing entities other 
than the Utah Division of Wildlife Resources to permit take. We are 
also issuing new incidental take exemptions for otherwise legal 
activities associated with standard agricultural practices. All other 
provisions of the special rule not relating to these amendments remain 
unchanged.

DATES: The effective date of this rule is September 4, 2012.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov, Docket No. FWS-R6-ES-2011-0030. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, are available for public inspection, by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Utah Ecological Services Field Office, 2369 West Orton Circle, 
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 Services (FIRS) at 800-877-8339.

FOR FURTHER INFORMATION 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). Individuals who are hearing-impaired or speech-impaired may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of the Regulatory Action

    Under the ESA, we revise our previous special rule for the 
conservation of the Utah prairie dog in the Code of Federal Regulations 
(CFR) at 50 CFR 17.40(g). The previous special rule, administered by 
the Utah Division of Wildlife Resources (UDWR), was established in 
1984, and amended in 1991. Since that time, we have evaluated the take 
authorized by this rule and the methods used to implement it.
    We considered the available information and public and peer review 
comments, and we revise the established exemptions to prohibited take. 
We are revising the regulations for where take is allowed to occur, who 
may permit take, the amount of take that may be permitted, and methods 
of take that may be permitted. We include a take exemption for areas 
where Utah prairie dogs create serious human safety hazards or disturb 
the sanctity of significant human cultural and human burial sites. We 
also provide an exemption for incidental take for otherwise legal 
activities associated with standard agricultural practices.
    This amendment is largely consistent with past and current 
practices and permitting as administered by the UDWR and Utah Code 
(R657-19-6, R657-19-7) under the 1984 special rule, as amended in 1991 
(hereafter referred to as ``the previous special rules''). Utah prairie 
dog populations have remained stable to increasing throughout 
implementation of these special rules, as implemented under the UDWR 
permit system.

Summary of the Major Provisions of the Regulatory Action

    Table 1 describes the previous 1984 special rules, as amended in 
1991, and this final rule.

Table 1--Comparison of the Previous Special Rule and Practice (1991) and
                             This Final Rule
------------------------------------------------------------------------
                                Previous rule and
                                 practice (1991)    Final rule (2012) *
------------------------------------------------------------------------
Who Can Allow Take............  UDWR.............  UDWR, or other
                                                    entities with the
                                                    Service's written
                                                    approval.
                                                   Add that no permit is
                                                    needed where prairie
                                                    dogs create serious
                                                    human safety hazards
                                                    or disturb the
                                                    sanctity of
                                                    significant human
                                                    cultural or human
                                                    burial sites.
                                                    Written approval
                                                    from the Service is
                                                    sufficient in these
                                                    circumstances.
Where Direct Take Is Allowed..  Existing Special   Retain agricultural
                                 Rule--private      lands.
                                 lands.
                                Utah Code--        Add properties where
                                 agricultural       prairie dogs create
                                 lands.             serious human safety
                                                    hazards or disturb
                                                    the sanctity of
                                                    significant human
                                                    cultural or human
                                                    burial sites.
                                                   Add properties within
                                                    0.8 km (0.5 mi) of
                                                    conservation lands.
Amount of Rangewide Direct      6,000 animals      The upper annual
 Take Allowed.                   annually.          permitted take limit
                                                    of 6,000 animals
                                                    annually is removed.
                                                   The upper permitted
                                                    take limit 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.
                                                   Take in areas where
                                                    prairie dogs create
                                                    serious human safety
                                                    hazards or disturb
                                                    the sanctity of
                                                    significant human
                                                    cultural or human
                                                    burial sites does
                                                    not contribute to
                                                    the take allowance.
Site-specific Limits on Amount  No restrictions    Add limits for
 of Direct Take.                 specified.         agricultural lands
                                                    and properties
                                                    within 0.8 km (0.5
                                                    mi) of conservation
                                                    lands.

[[Page 46159]]

 
                                                   Add that there are no
                                                    limits on the amount
                                                    of direct take where
                                                    prairie dogs create
                                                    serious human safety
                                                    hazards or disturb
                                                    the sanctity of
                                                    significant human
                                                    cultural or human
                                                    burial sites.
Timing of Allowed Direct Take.  June 1 to          June 15 to December
                                 December 31.       31 seasonal limits
                                                    on agricultural
                                                    lands and properties
                                                    neighboring
                                                    conservation lands.
                                                   Add that there is no
                                                    timing restriction
                                                    where prairie dogs
                                                    create serious human
                                                    safety hazards or
                                                    disturb the sanctity
                                                    of significant human
                                                    cultural or human
                                                    burial sites, except
                                                    that translocations
                                                    will be conducted
                                                    before lethal
                                                    measures of control
                                                    are allowed.
Methods Allowed to Implement    Existing Special   Add restrictions on
 Direct Take.                    Rule--no           methods of allowed
                                 restrictions       take on agricultural
                                 specified.         lands and properties
                                                    within 0.8 km (0.5
                                                    mi) of conservation
                                                    lands to conform to
                                                    Utah Code.
                                Utah Code--        Add that no
                                 limited to         restrictions on
                                 firearms and       methods to implement
                                 trapping, and      direct take are
                                 chemical           applied to areas
                                 toxicants          where prairie dogs
                                 specifically       create serious human
                                 prohibited.        safety hazards or
                                                    disturb the sanctity
                                                    of significant human
                                                    cultural or human
                                                    burial sites, except
                                                    that translocations
                                                    will be conducted
                                                    before lethal
                                                    measures of control
                                                    are allowed.
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 for             Not authorized...  Provide an exemption
 Agricultural Activities.                           for incidental take
                                                    for otherwise legal
                                                    activities
                                                    associated with
                                                    standard
                                                    agricultural
                                                    practices.
------------------------------------------------------------------------

Special Rules Under ESA Section 4(d)

    A 4(d) special rule functions by prescribing those regulations that 
are necessary and advisable to conserve a threatened species. We have 
elected to extend all prohibitions under section 9 of the ESA (16 
U.S.C. 1531 et seq.) to threatened species through a ``blanket 4(d) 
rule'' unless otherwise specified in a separate 4(d) rule (see 50 CFR 
17.31). Section 9 prohibitions make it illegal for any person subject 
to the jurisdiction of the United States to take (including harass, 
harm, pursue, shoot, wound, kill, trap, capture, or collect; or attempt 
any of these), import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any wildlife species listed as endangered, without 
written authorization. It also is illegal under section 9(a)(1) of the 
ESA to possess, sell, deliver, carry, transport, or ship any such 
wildlife that is taken illegally.
    We have the option of creating tailored 4(d) regulations rather 
than using the blanket 4(d) rule. In those cases, the species-specific 
4(d) regulation replaces the blanket regulation. 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 
under the blanket rule. 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 this Utah prairie dog 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.

Background

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 1175).
    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, applying the prohibitions for threatened 
animals (50 CFR 17.31) to the Utah prairie dog except: allowing 
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 previous 4(d) special rules (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 be published in the Federal Register for public 
comment (USFWS 2009, p. 1). This decision also was challenged by 
WildEarth Guardians.
    On September 28, 2010, United States District Court for the 
District of Columbia vacated and remanded our

[[Page 46160]]

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.
    On June 2, 2011 (76 FR 31906), we announced a proposed rule to 
revise our 4(d) special regulations for the conservation of the Utah 
prairie dog. Our proposed rule included limits to the allowable take, 
and new incidental take exemptions for otherwise legal activities 
associated with standard agricultural practices. We sought comments 
from the public and other agencies regarding the scope and 
implementation of the special rule. We also sought independent peer 
review of the science in the proposed rule to ensure that our final 
rule is based on scientifically sound data, assumptions, and analyses. 
We requested public and peer review comments be received or postmarked 
on or before August 1, 2011.
    On June 21, 2011 (76 FR 36053), we announced our revised 90-day 
finding on a petition to reclassify the Utah prairie dog from 
threatened to endangered under the ESA. As we concluded in our 90-day 
finding published on February 21, 2007, we found that the February 3, 
2003, petition did not present substantial information indicating that 
reclassifying the Utah prairie dog from threatened to endangered may be 
warranted. Therefore, we did not initiate a status review in response 
to the February 3, 2003, petition.
    On April 26, 2012 (77 FR 24195), we notified the public that we 
were making changes to our proposed rule of June 2, 2011, to revise the 
4(d) special rule for the Utah prairie dog. These changes included 
allowing take where Utah prairie dogs cause serious human safety 
hazards or disturb the sanctity of significant human cultural or human 
burial sites, allowing entities other than the UDWR to permit take, and 
changes to the seasonal and numeric limits for take. We reopened the 
comment period for 30 days, ending May 29, 2012, and we considered and 
incorporated as appropriate all comments for this final rule.

Species Information

    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).
    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 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 1 to 7 pups; 
mean observed litter size after emergence of juveniles from their 
burrows ranges from 3.64 pups to 5.5 pups (Pizzmenti and Collier 1975, 
p. 2; Elmore et al. 1976, p. 6; Wright-Smith 1978, p. 10; 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 approximately mid-June, and by that time 
they are no longer dependent on their mother and 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 toward 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. Prairie dog 
colonies may contain one or several clans. Colonies are groups of 
animals with associated mounds, burrows, and

[[Page 46161]]

food resources that are within calling distance. These units are 
genetically similar and vulnerable to local catastrophes including 
epizootic disease outbreaks.
    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).
    Utah prairie dog populations are susceptible to sylvatic plague 
(Yersinia pestis), a bacterium introduced to the North American 
continent in 1899 (Cully 1993, p. 38). Plague occurs in prairie dog 
colonies as enzootic and epizootic events. Enzootic plague is an 
infection that is persistent in the population over time and causes a 
low rate of mortality. Epizootic plague occurs when the disease spreads 
from enzootic hosts to more susceptible animals, resulting in a rapidly 
spreading die-off cycle (Barnes 1993, pp. 28-32; Cully and Williams 
2001, pp. 898-899; Gage and Kosoy 2005, p. 506). During epizootic 
plague events, large numbers of animals can die within a few days 
(Lechleitner et al. 1962, entire; Cully 1993, p. 39). Plague results in 
local extirpations, reduced colony sizes, increased variation in local 
population sizes, and increased distances between colonies (Cully and 
Williams 2001, p. 895).
    There is a limited understanding of the variables that determine 
when sylvatic plague will impact prairie dog populations. Enzootic 
plague may be influenced by factors including genetics, prairie dog 
immunity and physiologic state, and interactions with other bacteria 
(Gage and Kosoy 2005, p. 509). The factors that result in epizootic 
plague outbreaks are still being researched, but may include host 
density, flea density, and climatic conditions (Cully 1989, p. 49; 
Parmenter et al. 1999, pp. 818-820; Cully and Williams 2001, pp. 899-
901; Enscore et al. 2002, p. 192; Stapp et al. 2004, pp. 236-237; Gage 
and Kosoy 2005, pp. 509, 513; Ray and Collinge 2005, pp. 204, 206-208; 
Stenseth et al. 2006, entire; Sn[auml]ll et al. 2008, pp. 244-246; 
Biggins et al. 2010, pp. 21-24).
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 vegetation 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). Overall, Utah prairie 
dog densities are approximately twice as high at sites associated with 
agriculture compared to sites not associated with agriculture (Crocker-
Bedford and Spillett 1981, pp. 16, 23, 26). 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).
Distribution and Abundance
    The Utah prairie dog is the westernmost member of the genus 
Cynomys. Historically, the species' distribution extended much farther 
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, Washington, Garfield, Wayne, Piute, Sevier, and 
Kane Counties (USFWS 2012, p. 1.3-3). 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 2010, pers. comm.).

[[Page 46162]]

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. Biologists spend approximately 8 to 
10 weeks with 3 to 5 people per week surveying prairie dog colonies in 
the field each year in accordance with our survey protocol (USFWS 2012, 
Appendix H). Only 40 to 60 percent of Utah prairie dogs are above 
ground at any one time (USFWS 2012, p. 1.3-4). Therefore, spring counts 
represent approximately 50 percent of the adult population. Total 
rangewide 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 total 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 
(adults and juveniles) can 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 (adults and juveniles) is about 7.2 x the spring 
count. Hereafter whenever we refer to ``total rangewide population 
estimate'' or ``total population estimate'' we mean the calculated Utah 
prairie dog population based on the occurrence of both adult and 
juvenile animals.
    It should be noted that spring count surveys and total population 
estimates are not censuses. Rather, they are designed to monitor 
population trends over time. Based on the spring counts, the rangewide 
population trends for the Utah prairie dog are stable to increasing 
over the last 30 years (see Application of the Utah Prairie Dog Special 
Rule Through the Present, below).
    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 units in our Final Revised Recovery Plan (USFWS 
2012, pp. 1.3-3, 3.2-1), including: (1) Awapa Plateau; (2) Paunsaugunt, 
and (3) West Desert. The Awapa Plateau recovery unit encompasses 
portions of Piute, Garfield, Wayne, and Sevier Counties. The 
Paunsaugunt 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 2 provides information on each 
recovery unit, including average percentage of the total 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 Final Revised Recovery Plan (USFWS 2012, section 1.3.2).

      Table 2--Population and Occupancy Data for Each Recovery Unit
------------------------------------------------------------------------
                                                               Average
                                                              percentage
                                                  Average     of prairie
                                                 percentage      dogs
                 Recovery unit                       of       occurring
                                                 rangewide     on  non-
                                                 population    federal
                                                                 land
------------------------------------------------------------------------
Awapa Plateau.................................          8.9         47.6
Paunsaugunt...................................         16.9         71.0
West Desert...................................         74.2         85.1
------------------------------------------------------------------------
Note: Averages calculated from 2000 to 2009. Source: UDWR 2009, 2010b.

Summary of Comments and Recommendations

    In our proposed rule published on June 2, 2011 (76 FR 31906), we 
requested that all interested parties submit written comments on the 
proposal by August 1, 2011. Similarly, in our revision to the proposed 
rule on April 26, 2012 (77 FR 24915), we requested that all interested 
parties submit written comments on the proposal by May 29, 2012. We 
contacted appropriate Federal and State agencies, scientific experts 
and organizations, and other interested parties and invited them to 
comment on the proposal. We did not receive any requests for a public 
hearing. During the public comment period on the June 2, 2011, proposed 
rule, we received a total of 10 comment letters. Following the end of 
that public comment period, we also received a comment letter from the 
State of Utah. During the public comment period on our April 26, 2012, 
revision to the proposed rule, we received a total of 11 comment 
letters.
    All substantive information provided during the comment periods 
(and including the State of Utah's comment letter) was either 
incorporated directly into this final determination or is addressed 
below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from six knowledgeable 
individuals with scientific expertise that included familiarity with 
prairie dog ecology, population modeling, and lethal control of prairie 
dogs. We received comments from four of the peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the Utah prairie dog. 
In general, the peer reviewers agreed with the value of having a 
special rule for Utah prairie dogs. They raised some concern regarding 
our use of the available prairie dog population models and our 
interpretation of available data. However, the peer reviewers did not 
provide specific information on how they would improve the final rule 
based on the available information. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer stated that we should specify that 
the mean litter size is really the mean observed litter size after 
emergence of juveniles from their burrows.
    Our Response: We updated the Life History section of the rule 
accordingly.
    (2) Comment: One peer reviewer recommended that we add the 
definition for ``colony'' to the rule.
    Our Response: We added descriptions of Utah prairie dog clans and 
colonies in the Life History section of the rule.
    (3) Comment: The peer reviewers stated their support for various 
facets of the rule, including agreement that we used most of the 
pertinent literature, agreement with our conclusion that landowner and 
community support is important for species recovery, and appreciation 
that the rule recognizes the role of the State in managing the Utah 
prairie dog.

[[Page 46163]]

    Our Response: We retained the discussions relevant to these points 
in our final rule.
    (4) Comment: One peer reviewer stated that the data presented in 
Figure 1 demonstrates weak support for what is called a fluctuating 
harvest-rate model.
    Our Response: We agree with the peer reviewer and did not intend to 
imply that Figure 1 (i.e., the permitting process under the previous 
1984 and 1991 special rules) showed a fluctuating harvest-rate model. 
To the contrary, the previous special rules essentially used a 
potentially fixed rate harvest-model in which 6,000 animals could be 
taken annually regardless of the Utah prairie dog spring count data. We 
clarified the rule accordingly (see Limiting the Amount and 
Distribution of Direct Take That Can Be Permitted).
    (5) Comment: One peer reviewer questioned our observation (based on 
25 years of data) that colony extinction has not increased under our 
previous special rules. This peer reviewer said that an assessment of 
metapopulation dynamics of this species is necessary, including when 
colonies go extinct from control, disease, or natural predation, and 
how often and how quickly are they recolonized.
    Our Response: While metapopulation dynamics are important to long-
term conservation of a species, we do not believe this type of an 
assessment is needed for analyzing the effects of our special rule. We 
believe our 25 years of prairie dog population information and take 
levels under the previous special rules--this is what actually happened 
on the ground, including the resulting stable to increasing rangewide 
prairie dog populations--provides a robust dataset on which we can 
predict future effects associated with this special rule. In addition, 
we are not aware of any colonies that have been extirpated due to 
implementation of our special rules.
    (6) Comment: One peer reviewer concluded that a visual inspection 
of the line graph presented in Figure 1 suggests that high levels of 
actual take under the existing special rules are correlated with 
declines in population abundance in following years. Therefore, the 
peer reviewer inferred that the data suggest that existing levels of 
take may be having a larger impact on Utah prairie dog population 
abundance than acknowledged in the proposed rule revision. Thus, the 
peer reviewer concluded that our 10 percent take limit is likely not 
viable long term.
    Our Response: Based on this comment, we ran a regression analysis 
(a statistical technique for the investigation of relationships between 
variables) on the available data. There was not a significant 
relationship between rangewide reported take under the 1984 and 1991 
special rules and the total rangewide spring counts the following year 
(Brown 2012). This information combined with 25 years of stable to 
increasing population trends indicate that these levels of take are not 
negatively impacting the rangewide Utah prairie dog population.
    (7) Comment: One peer reviewer was concerned that our 10 percent 
take limit is higher than actual take that has been reported under the 
prior special rules.
    Our Response: Although our allowable take of up to 10 percent is 
higher than actual take, available modeling on other prairie dog 
species (Reeve and Vosburgh 2006, p. 123; Colorado Division of Wildlife 
(CDOW) 2007, p. 135) shows that fluctuating harvest rates of 20 to 25 
percent of the population are sustainable, and our 10 percent take 
limit is much less than these rates. In addition, it is likely that 
actual harvest will always be much less than permitted harvest, as our 
experience over the past 25 years shows, and we added this information 
to Table 3. The special rule allows us to modify or discontinue take in 
the future should we experience population effects that are 
inconsistent with Utah prairie dog conservation.
    (8) Comment: One peer reviewer recommended that we consider a 
spatial analysis of prairie dog demographics and the associated impacts 
of take in different parts of the species' range. This reviewer 
questioned the potential long-term impacts across the species' range of 
a spatially clustered take of comparatively higher intensity in one 
portion of the range, compared to a more uniform and widespread 
distribution of removal.
    Our Response: We added a requirement to the rule that take will be 
spatially distributed across the three Recovery Units, based on the 
distribution of the annual total rangewide count within each Recovery 
Unit (see Limiting the Amount and Distribution of Direct Take That Can 
Be Permitted, ``Agricultural Lands,'' below).
    (9) Comment: A couple of peer reviewers stated that smaller 
populations are more susceptible to localized extinction and that 
colony size should be considered when permitting take.
    Our Response: We agree that smaller populations are more 
susceptible to localized extinction. As described in our rule, 
available modeling on the impacts of shooting to prairie dogs was 
completed on other prairie dog species, not Utah prairie dogs. However, 
because this represents the best available information, we reviewed the 
literature to determine relative impacts based on colony size. 
Populations of Gunnison's prairie dogs, even in the presence of 
enzootic plague, showed strong population growth rates with no risk of 
extinction as long as their initial population sizes were greater than 
or equal to 50 animals (CDOW 2007, p. 128). Accordingly, our final rule 
states that a minimum spring count of 7 animals (total population 
estimate of 50 animals) in each colony is required for the issuance of 
any permits under this rule. In addition, we added a provision to the 
rule that directs permitting biologists to consider colony size when 
issuing permits (see Limiting the Amount and Distribution of Direct 
Take That Can Be Permitted). Because we have stable to increasing 
rangewide Utah prairie dog populations under the previous rules, it is 
reasonable to assume that restricting permits to even larger colony 
sizes under this final rule will result in continued positive 
population trends.
    (10) Comment: One peer reviewer and a couple of commenters stated 
that the available literature does not have an accurate assessment of 
plague risk related to colony density. They stated that there is not 
sufficient evidence to support our conclusion that taking Utah prairie 
dogs will lower plague risk by maintaining lower densities. Another 
peer reviewer recommended that we consider plague as a factor when 
evaluating the sustainability of a given level of take.
    Our Response: We agree that colony density and plague are not 
always directly related. We revised the rule to include additional 
literature regarding plague dynamics in prairie dog populations, 
particularly noting that there are a variety of factors that play a 
role in the occurrence and extent of enzootic and epizootic plague 
events. Thus, we are not able to conclude that reducing prairie dog 
population densities will always result in the reduction of plague 
occurrence or significance. Plague is considered a factor when 
evaluating a given level of take to the extent that annual take is 
based on a percentage of the estimated annual population of prairie 
dogs. Fluctuations in prairie dog populations due to plague outbreaks 
could affect the total amount of authorized take in a given year.
    (11) Comment: One peer reviewer recommended that we consider how 
competition for resources (e.g., how reduced competition can promote 
higher reproductive success and survivorship) and plague (e.g.,

[[Page 46164]]

controlling density can reduce the impact of plague) can be balanced to 
achieve optimal demographic robustness for long-term conservation of 
Utah prairie dogs.
    Our Response: This special 4(d) rule is not intended to evaluate 
all conservation aspects for the Utah prairie dog. Under the revised 
Utah prairie dog Recovery Plan, we consider all demographic and 
metapopulation dynamics in our efforts to recover the species. The 
special 4(d) rule does consider how implementation of some level of 
prairie dog control can positively affect populations by reducing 
competition for resources and reducing the potential for plague 
outbreaks in some scenarios (see Limiting Where Take is Allowed, 
``Conservation Benefits of Allowing Take on Specific Lands,'' below).
    (12) Comment: One peer reviewer requested that we provide some 
information regarding the time and effort expended to conduct annual 
spring count surveys.
    Our Response: The UDWR estimates that surveys require 8 to 10 
weeks, with 3 to 5 biologists annually. We added this information to 
the rule.
    (13) Comment: A couple of peer reviewers recommended we use mean 
litter size of 3.88 juveniles instead of the 4 juveniles used in our 
population estimate calculation in the ``Distribution and Abundance'' 
section of the rule. Mean litter size of 3.88 juveniles is supported by 
the literature.
    Our Response: Based on the available literature, we conclude that 
the use of 4 juveniles is appropriate in our population estimate 
calculation. We included additional citations in the rule that show 
litter sizes varying from 1 to 8 pups, with means varying from 3.64 to 
5.5.
    (14) Comment: One peer reviewer questioned whether maintaining 
prairie dogs at baseline populations on private lands adjacent to 
conservation lands would be sufficient to maintain a functioning 
metapopulation across the boundary between private land and 
conservation property land.
    Our Response: The selection and establishment of conservation lands 
takes into consideration spatial distribution, colony size, colony 
persistence, and connectivity between habitats. We make our decisions 
on the contribution of these lands to recovery for the Utah prairie dog 
including the assumption that the nearby properties (within 0.8 km (0.5 
mile) of the conservation land) would be maintained at baseline prairie 
dog populations. Therefore, the conservation lands themselves are 
initially assessed for their ability to contribute to Utah prairie dog 
metapopulation dynamics and recovery. We added information to the rule 
that explains how conservation lands are selected.
    (15) Comment: A couple of peer reviewers recommended that we more 
closely analyze the applicability of available population models to the 
Utah prairie dog, in particular a model used by the CDOW (now Colorado 
Parks and Wildlife) (2007). One peer reviewer gave an example--there is 
clearly some level of interaction between prairie dogs and agricultural 
activity in Colorado as there is in Utah, which means that the results 
of the analysis in CDOW (2007) may have a greater degree of relevance 
than what is stated in the proposed rule revision.
    Our Response: We evaluated the available prairie dog population 
models in both our proposed and final rules (see Limiting the Amount 
and Distribution of Direct Take That Can Be Permitted; Reeve and 
Vosburgh 2006, entire; CDOW 2007, entire). We considered these models 
in light of expected differences between habitats and behaviors of the 
various prairie dog species; we do not believe that the models are 
strictly applicable to Utah prairie dogs. In addition, we considered 
these models in conjunction with our own data showing 25 years of 
stable to increasing rangewide Utah prairie dog populations with 
implementation of similar special rules that have allowed take on 
agricultural lands. We reevaluated these models for this final rule and 
made a couple of changes to the rule, including an increased minimum 
colony size (spring count = 7 animals) for permitting, and a change in 
the dates when shooting is allowed (June 15 to December 31). We agree 
with the peer reviewer that there are likely some similarities between 
prairie dogs and agricultural activity in Colorado and Utah. However, 
implementation of this rule is largely for colonies occurring on 
agricultural lands, whereas the available models include a broad range 
of habitat types for prairie dog species in other States.
    (16) Comment: Two peer reviewers expressed concern that the 
proposed rule had a percent take per colony higher than previously 
experienced, and questioned if this amount of within-colony take would 
be viable for the long term. Two peer reviewers supported our 
requirement that within-colony take would be limited to one-half of a 
colony's estimated annual production (approximately 36 percent of 
estimated total population). One peer reviewer recommended we consider 
that the impact of percent within-colony take will vary based on colony 
size, and another peer reviewer recommended the most important factor 
in population stability is seasonal restrictions on shooting.
    Our Response: The UDWR has used this same within-colony take limit 
under the previous special rules, and, as described in the rule, the 
affected colonies remain viable. Based on the peer review comments, we 
further evaluated the possible correlation of actual take and declines 
in population abundance at a sample of colonies that have had numerous 
take permits under our previous special rules. Although we only had 
small sample sizes, our regression analysis of the available data 
showed that there is no correlation between actual take in 1 year and 
spring counts the following year at specific colonies (Brown 2012); the 
permitted take in these situations was determined by UDWR using one-
half of a colony's estimated annual production. However, we agree that 
the overall impact of within-colony take may vary based on colony size. 
We added a condition to the rule that colony size will be taken into 
consideration by the permitting biologist when evaluating the 
permittee's property and determining appropriate take levels. No take 
can be authorized if the spring count at a colony is less than 7 
(population estimate = 50). In addition, the rule provides seasonal 
restrictions on take.
    (17) Comment: One peer reviewer was concerned that development of 
the take limits was based on evaluation of information and modeling of 
other prairie dog species, not Utah prairie dogs.
    Our Response: We acknowledge in the rule that literature from 
species other than Utah prairie dogs was used in support of the rule 
revision. However, this is the best available information and is 
appropriate to review because of the similarity in activities; the 
models addressed recreational shooting of prairie dogs, and we 
evaluated controlled lethal take. In addition, we are able to compare 
the results of these models with over 25 years of data specific to the 
Utah prairie dog under the previous special rules.
    (18) Comment: One peer reviewer recommended including gas 
cartridges, anticoagulants, and explosive devices as prohibited take 
methods.
    Our Response: We revised the document to prohibit the use of gas 
cartridges, anticoagulants, and explosive devices to control prairie 
dogs on agricultural lands and properties within 0.8 km (0.5 mi) of 
conservation lands. These techniques were not employed by UDWR under 
the previous rule and are

[[Page 46165]]

explicitly prohibited by this rule because they do not allow control 
agents to target a specific number of prairie dogs or track actual 
take.
    (19) Comment: One peer reviewer recommended that we require any 
shot prairie dogs be disposed of by burying them outside of the colony 
boundary.
    Our Response: We evaluated the potential effects to the environment 
of lead in the draft and final environmental assessments. We determined 
that the use of lead shot for prairie dog control would not have 
significant effects to the environment based largely on the limited 
area in which 4(d) permits and lethal take are authorized. Therefore, 
we did not require measures such as disposing of shot prairie dogs in a 
specific manner.

Comments From States

    (20) Comment: The State of Utah and several commenters expressed 
support for the revised rule and recommended its final adoption and 
implementation. They concluded that the rule is vital to our continued 
success of working with private landowners and the recovery of the Utah 
prairie dogs, and that cooperative efforts between landowners and 
wildlife agencies offer the best hope for recovery of the species.
    Our Response: We agree that the rule is necessary and advisable to 
address continued conflicts between landowners and Utah prairie dogs by 
providing for ecologically based population control that also 
alleviates some of the impacts that prairie dogs can cause to 
agricultural operations, the safety of operation such as airports, and 
the sanctity of significant human cultural and human burial sites.
    (21) Comment: The State of Utah found that one section of the 
proposed rule said 7 percent of 10 percent is the take limit for 
agricultural lands. This equals 0.7 percent of overall rangewide 
population and conflicts with the 7 percent estimate elsewhere.
    Our Response: We fixed this sentence to reflect that 7 percent of 
the rangewide population can be authorized for take on agricultural 
lands.
    (22) Comment: The State of Utah said that the terms ``annual 
rangewide population'' and ``estimated population'' were not always 
clearly defined in the proposed rule. The commenter recommended that we 
clarify throughout the rule that the estimated population is number of 
animals occurring in late spring and summer when both adults and 
juveniles are present above ground.
    Our Response: We revised the text to ensure clarity in the use of 
terms associated with spring counts (adult prairie dogs) versus 
estimated population sizes (adults and juveniles).
    (23) Comment: The State of Utah recommended that the rule should 
allow for entities other than the UDWR to issue permits for control of 
Utah prairie dogs.
    Our Response: We revised the special rule to allow for other 
entities to evaluate and permit properties for take, if those entities 
are approved in writing by our agency.
    (24) Comment: The State of Utah was concerned that the inclusion of 
two maximum annual take limits--6,000 animals and 10 percent of the 
estimated rangewide population--may be confusing to some readers.
    Our Response: We removed the upper limit of 6,000 animals from the 
final rule. The maximum allowable total annual permitted take will be 
no more than 10 percent of the estimated rangewide population.
    (25) Comment: The State of Utah suggested that the cumulative 
annual take be 10 percent of the rangewide population regardless of the 
source (i.e., agricultural lands or conservation lands).
    Our Response: We retained a 7 percent take on agricultural lands 
and the remaining take (totaling 10 percent) to lands within 0.8 km 
(0.5 mi) of Utah prairie dog conservation lands. We determined the 7 
percent take limit on agricultural lands based on evaluating the 
permitted and actual levels under the previous rules (56 FR 27438, June 
14, 1991; 49 FR 22330, May 29, 1984).
    (26) Comment: The State of Utah asked for clarification whether all 
agricultural lands within 0.5 mile of a conservation property 
automatically fall into the Properties Near Conservation Lands take 
category.
    Our Response: We added a statement to the rule (see Limiting Where 
Take is Allowed) clarifying that all private properties within 0.8 km 
(0.5 mi) automatically fall into the Properties Near Conservation Lands 
take category.
    (27) Comment: The State of Utah and a couple of commenters 
recommended expanding the rule to include take authorization for areas 
such as cemeteries, schools, athletic facilities, golf course, 
airports, and ballparks.
    Our Response: We modified the rule to allow control on areas where 
prairie dogs are creating serious human safety hazards or disturbing 
the sanctity of significant human cultural or human burial sites. 
Lethal take in all cases is only a last resort and is only allowable 
after all practicable measures to resolve the conflict are implemented. 
We agree with the commenters that the species benefits when the public 
supports recovery efforts and prairie dog conflicts are reduced in some 
public gathering areas. However, excluding all areas where there are 
impacts to recreation only rather than serious health and safety 
concerns is not consistent with recovery of the Utah prairie dog.

Comments From Elected Officials

    (28) Comment: One commenter thought that fence specifications 
should be provided on a case-by-case basis instead of relying on a one-
size-fits-all fence.
    Our Response: We agree that fencing specifications will not be the 
same for each situation. Our final rule does not preclude site-specific 
prairie-dog-proof fence designs. For example, the most recent fence 
designs at the Parowan Airport and Paragonah Cemetery are different 
because of site-specific needs.
    (29) Comment: One commenter requested that the seasonal sex and 
weight limits of translocated prairie dogs be removed for sites under 
this special rule given the severity of impacts to human safety or 
disruption to cultural or burial sites.
    Our Response: We have revised the final rule to remove the seasonal 
sex and weight limits for translocations from fenced sites. Any prairie 
dogs not removed from these areas would be allowed to be lethally 
removed following the translocation effort; therefore, the sex and 
weight of the animals is not meaningful.
    (30) Comment: One commenter wanted to know what criteria we would 
use to determine the areas where prairie dogs create safety hazards or 
disturb the sanctity of significant human cultural or human burial 
sites under this rule.
    Our Response: Because there are likely to be differing 
circumstances resulting in the need for take at certain sites, the 
criteria will be determined largely on a site-specific basis. However, 
the rule is clear in stating that take will only be allowed in areas 
where a credible, serious public safety hazard or harm to significant 
human cultural or human burial sites can be clearly demonstrated. We 
certainly agree that prairie dogs are a concern at the Parowan Airport 
and Paragonah Cemetery, and we have already helped to meet the needs of 
fencing at these locations.
    (31) Comment: One commenter asked what we would do if the number of 
prairie dogs within a fenced area is ``more than small''--will lethal 
take still be allowed? The rule states that ``these sites are 
relatively small areas, would be fenced, and prairie dogs would be 
removed by translocation prior to the permitting of lethal take. Thus 
we

[[Page 46166]]

expect that the numbers of Utah prairie dogs lethally removed would be 
small.''
    Our Response: The intent of this discussion in the rule is to 
identify in part why we believe these areas are not important for the 
conservation of the Utah prairie dog. We can expect that properly 
maintained fencing will keep out the majority of prairie dogs. Thus, 
lethal take will be allowed as long as the conditions of the rule are 
followed. If numerous prairie dogs are breaching the fence, we would 
inspect the fence to determine why the breaches are occurring, at which 
time some fence maintenance may be required in order for lethal take to 
be allowed to continue.
    (32) Comment: One commenter supported giving local government 
entities, such as counties, management authority under this rule.
    Our Response: The ability for entities other than UDWR to permit 
take was added in this final rule.
    (33) Comment: One commenter said that we should not limit within-
colony take on agricultural lands. If an entire colony is not 
translocated, then the remaining animals will continue causing damage, 
and it is inevitable the numbers will continue to increase.
    Our Response: It is not the intent of this rule to extirpate 
colonies that occur on agricultural lands. The intent of this special 
rule is to support the conservation of the Utah prairie dog by managing 
unnaturally high populations that occur in areas such as agricultural 
lands. We conclude in this rule that our ability to manage these 
populations will assist with recovery efforts for the Utah prairie dog.
    (34) Comment: A couple of commenters, including one elected 
official, were concerned that two fences have already been constructed 
at the Paragonah Cemetery in accordance with Service specifications, 
and now they are being asked to build a third fence, 6 feet deep. The 
uncertainty in adequate fence specifications erodes trust between the 
government and local communities.
    Our Response: The Service was not asked to review and approve the 
prior fences at the cemetery, one of which is above ground, and the 
other which is 18 inches below ground. Regardless, the existing fence 
is ineffective at keeping prairie dogs out of the cemetery. The Service 
and State of Utah have offered to fund and construct a new fence at the 
cemetery that will be a more effective prairie dog barrier. Under this 
rule, after the fence is constructed, the City of Paragonah will be 
given a permit to lethally take any prairie dogs that breach the fence 
at any time during the year, following an initial translocation effort. 
We agree that prairie dogs should not be in the cemetery. We also agree 
that there should be a standard for fence specifications, recognizing 
site-specific differences. As such, we have worked with the Utah 
Prairie Dog Recovery Implementation Team to develop prairie dog-proof 
fencing specifications.

Public Comments

    (35) Comment: One commenter questioned the science and intentions 
behind the ``4(d) program.'' This commenter believes that this action 
is simply political and is being done because of the ``big money in 
agribusiness.'' The commenter does not believe that killing prairie 
dogs is advantageous to the species. The commenter also stated that 
this action requires an environmental impact statement.
    Our Response: Under section 4(d) of the ESA, we are required to 
issue protective regulations deemed necessary and advisable to provide 
for the conservation of listed threatened species. This 4(d) rule is 
based on the best available science and is a regulatory tool to assist 
in species conservation. This rule is intended to relieve prairie dog 
population pressures in overcrowded portions of the range as well as 
alleviate some impacts to agricultural operations, properties within 
0.8 km (0.5 mi) of prairie dog conservation lands, and areas where 
human safety or the sanctity of significant human cultural or human 
burial sites is a concern. We evaluated the effects of our action in 
accordance with the National Environmental Policy Act by completing an 
environmental assessment. We solicited public comments on our 
environmental assessment (77 FR 24915, April 26, 2012). Based on the 
comments we received, we completed a finding of no significant impact. 
Therefore, we will not develop an environmental impact statement on our 
action, and do not believe an environmental impact statement is 
required.
    (36) Comment: One commenter stated that we are wasting time and 
money working on Utah prairie dog issues because the animals occur 
everywhere, including central and eastern Utah. Specifically, this 
commenter stated that our range data are inaccurate because Utah 
prairie dogs occur in Emery and Carbon Counties.
    Our Response: As described in the rule, the distribution of the 
Utah prairie dog is limited to the southwestern quarter of Utah in 
Iron, Beaver, Washington, Garfield, Wayne, Piute, Sevier, and Kane 
Counties. The species that occurs in Carbon and Emery Counties, and 
other portions of central and eastern Utah, is the white-tailed prairie 
dog (Cynomys leucurus). The Gunnison's prairie dog (Cynomys gunnisoni) 
occurs in the southeastern portion of the State. The best available 
scientific and commercial information indicates that the Utah prairie 
dog meets the definition of a threatened species under the ESA.
    (37) Comment: One commenter stated that climate change may become a 
real threat to Utah prairie dogs based on work that is being done on 
black-tailed and Gunnison's prairie dogs in similarly arid grasslands.
    Our Response: We agree that climate change may impact Utah prairie 
dogs. Our Utah Prairie Dog Final Revised Recovery Plan (USFWS 2012, pp. 
1.7-15) discusses climate change. In addition, our use of an annual 
limit based on a percentage of the total estimated annual Utah prairie 
dog population takes into account changes in prairie dog numbers across 
the species' range due to climate change or other factors.
    (38) Comment: One commenter stated that it is very important that 
prairie dogs on agricultural lands and lands adjacent to conservation 
areas are allowed to be taken.
    Our Response: We agree with this comment. The ability to take 
prairie dogs in these areas is included in the rule (see Limiting Where 
Take is Allowed).
    (39) Comment: One commenter stated that maintaining healthy 
predator populations on grazing land is important to controlling Utah 
prairie dogs in areas where they are not wanted. Predators can 
naturally and effectively control prairie dog populations so that there 
is no need for human control.
    Our Response: We agree that predators can naturally control Utah 
prairie dog populations, and this is described in the rule (see ``Life 
History'' and ``Habitat Requirements and Food Habits''). However, we do 
not have the ability to manage predators on the properties to which 
this rule applies; private agricultural lands are managed systems that 
usually include predator removal.
    (40) Comment: One commenter recommended that we revise our timing 
of permitted take to be June 1 in the West Desert recovery unit and 
July 1 on the Awapa Plateau and Paunsaugunt recovery units.
    Our Response: We reviewed the available literature and discussed 
these dates with the Utah Prairie Dog Recovery Team members. We 
concluded that the date of permitted take should be changed to June 15, 
particularly to

[[Page 46167]]

accommodate higher elevations where prairie dog pups often emerge from 
their dens later as compared to lower elevations, and we changed the 
date in this final rule.
    (41) Comment: A few commenters expressed concern that allowing take 
of up to 6,000 prairie dogs annually is too large of a number because 
the annual count of prairie dogs does not reach these levels. They were 
concerned that the take was too high given other aspects of the 
species' status, including declines in Utah prairie dog populations 
over the last century, small colony sizes, poor habitat conditions, 
overgrazing, habitat fragmentation, and plague. One commenter stated 
that Utah prairie dog populations have declined dramatically in the 
last 100 years, and thus the level of take provided in the rule is too 
great.
    Our Response: This rule limits the amount of annual take to a 
maximum of 10 percent of the rangewide population. The upper limit of 
6,000 animals is not included in the final rule. Based on the best 
available science and models, we believe this take limit is consistent 
with recovery goals for the species. The Utah prairie dog rangewide 
population trend is stable to increasing over the last 30 years.
    (42) Comment: One commenter stated that Utah prairie dog recovery 
efforts have not been successful over the last 25 years. This commenter 
also stated that our primary goal should be to expand Utah prairie dog 
populations. This commenter urged us to implement more strategic 
solutions that work with landowners to implement more strategic 
solutions to compensate for lost income and encourage support for Utah 
prairie dog recovery, instead of implementing outdated lethal control 
methods.
    Our Response: This rule emphasizes control of Utah prairie dog in 
certain locations that we have determined are not essential to the 
recovery of the Utah prairie dog. However, our recovery effort is a 
multi-phased approach to species' conservation on a landscape scale. 
Our new Utah Prairie Dog Final Revised Recovery Plan describes many of 
the ongoing and newer strategic conservation solutions on public and 
private lands, including conservation banks, Utah prairie dog Habitat 
Credit Exchange (a market-based form of mitigation banking), safe 
harbor program, Utah prairie dog Recovery Implementation Program, 
habitat conservation planning, translocations, plague management, and 
habitat conservation plans (HCPs) (USFWS 2012, section 1.9). We believe 
that the sum of all of these efforts, including allowing control on 
lands as identified under this rule, will cumulatively work to expand 
and protect populations and recover the Utah prairie dog.
    (43) Comment: One commenter agreed that agricultural lands tend to 
support high numbers of prairie dogs. However, this commenter stated 
that prairie dog populations do not increase to the same high levels on 
grazing land. Therefore, the justification that we use for control 
cannot be applied to both situations.
    Our Response: We agree that in many cases prairie dog populations 
do not increase on grazing lands to the same degree as they do on 
agricultural lands, particularly if those are public rangelands without 
improvements. However, under this rule, we more specifically define 
agricultural lands on which control can be considered; see Limiting 
Where Take is Allowed. Many of the pasturelands that fall under this 
category are improved landscapes, which likely result in increased 
prairie dog populations. In addition, to ensure that we only consider 
control under proper conditions, the rule requires that we verify the 
land is being physically or economically impacted by prairie dogs.
    (44) Comment: One commenter requested information on how we 
estimate rangewide prairie dog populations. This commenter suggested 
that pups should not be included in the estimate because many do not 
survive their first year.
    Our Response: The equation for estimating Utah prairie dog 
population size is included in the ``Distribution and Abundance'' 
section of the rule. The total population estimate includes juveniles. 
The commenter is correct in stating that many pups do not survive their 
first year, so for recovery purposes we rely heavily on spring counts 
(adults only) to determine population trends. We included the 
calculation for total population estimate (adults and juveniles) in the 
rule because it helps the reader to understand that the rule allows 
control on agricultural lands during the summer months when impacts 
from prairie dogs can increase dramatically due to the high numbers of 
animals on the landscape.
    (45) Comment: A few commenters stated that the rule should be 
expanded to allow all private property owners to remove prairie dogs 
from their lands because of the high degree of economic and physical 
impacts (i.e., prairie dog mounds), as well as human safety issues, 
associated with the presence of prairie dogs. For example, many people 
cannot find a buyer for their property if it has prairie dogs on it or 
adjoins a lot with prairie dogs. Many people are forced to purchase and 
install prairie dog fencing to keep prairie dogs off their lot. There 
also is a shifting tax burden placed on every resident in the county 
because people who have prairie dogs on their property have 
successfully petitioned the State to have the value of their property 
reduced.
    Our Response: We acknowledge prairie dogs can have economic and 
physical impacts. These impacts contributed to the listing of the 
species, because prairie dogs were controlled heavily by humans prior 
to listing. Many private properties are likely to be developed, 
particularly in the urban areas. Development of private lands results 
in the permanent loss of prairie dog habitats and populations. 
Therefore, we believe that retaining the prohibition for take on 
private lands except where allowed by this rule is necessary and 
advisable for the conservation of the species. The mechanism to 
authorize take on private lands that are not included in this rule is 
the ESA section 10(a)(1)(B) process and implementation of HCPs.
    (46) Comment: One commenter stated that it is absurd to consider 
prairie dogs as endangered or threatened because their total estimated 
population is about 34,000 animals on Federal land. A couple of 
commenters also were concerned that we only count numbers of prairie 
dogs on Federal lands toward recovery.
    Our Reponse: Rangewide (public and private lands) prairie dog 
spring counts were as high as 7,527 animals in 1989 (summer population 
estimate = 54,194) and a low spring count of 1,866 animals in 1976 
(summer population estimate = 13,435). The average spring count on all 
lands for the past 34 years is 4,187 animals (summer population 
estimate = 30,150). The species is listed as threatened primarily based 
on threats from development and plague. Plague affects the species 
rangewide. Development affects the species largely on non-Federal lands 
through residential and commercial development. Over 70 percent of the 
Utah prairie dog population occurs on non-Federal lands that will 
likely be developed in the foreseeable future. To recover the Utah 
prairie dog, we need both robust population numbers and protection from 
the threats, in the form of permanent habitat protection. In this 
regard, private lands are counted toward recovery when they are 
permanently protected through acquisitions or conservation easements.
    (47) Comment: One commenter asked why the Federal government cannot 
move the prairie dogs to Federal land and manage them there, allowing 
homeowners to rid their properties of these animals.

[[Page 46168]]

    Our Response: The Utah prairie dog recovery effort includes a 2-
tiered approach of establishing and managing prairie dogs on Federal 
lands and protecting existing colonies on private lands where willing 
landowners agree to conservation easements or fee title purchases. 
Because most of the Utah prairie dog population exists on private 
lands, recovery will be achieved in substantially less time if we are 
able to protect some of the most important colonies in these areas.
    (48) Comment: One commenter recommended that prairie dogs be 
thinned via relocation where they are in conflict with landowners.
    Our Response: The special rule allows and encourages live-trapping 
and translocation of prairie dogs from the lands where take is 
authorized (see Limiting Methods Allowed to Implement Direct Take).
    (49) Comment: One commenter stated that our proposed revisions to 
the special rule are flawed because they require ``all practicable 
measures'' to be taken to remove and keep prairie dogs out of airports 
and cemeteries. A couple of commenters did not believe that fencing is 
practical because the fence would need to be several feet subterranean, 
a few feet high aboveground, and of a material that cannot be chewed 
through; open gates would need to be monitored; and the fencing is 
expensive. One commenter said that acceptable fence specification 
should be made clear to everyone. A couple of commenters expressed 
concern about who would pay for fencing and the maintenance of that 
fence.
    Our Response: We agree that no fence is likely to be completely 
impermeable to prairie dogs, and our rule acknowledges this issue. We 
have worked with the Utah Prairie Dog Recovery Implementation Team to 
develop fencing specifications that meet some of the commenters' 
concerns--fencing 6 feet below ground and 3 feet above ground with 
prairie-dog proof materials. Long-term monitoring and maintenance of 
any fence is necessary for that fence to maintain its functionality, 
regardless of the intended purpose of that fence, e.g., prairie dogs or 
livestock. We, and the State of Utah, have provided funding and 
equipment to complete prairie-dog proof barriers at the Parowan Airport 
and Paragonah Cemetery. We will continue to assist with funding as it 
is available to meet both community and recovery needs for this 
species; however, we also anticipate that local communities and private 
entities also may fund fencing projects.
    (50) Comment: One commenter agreed with the idea of controlling 
animals that intrude into areas such as cemeteries and airports, and 
that these prairie dogs should either be killed or translocated to 
Federal lands.
    Our Response: The final rule allows for both lethal take and 
translocation of prairie dogs from areas where prairie dogs create 
human safety hazards (e.g., airports) or disturb the sanctity of 
significant human cultural or human burial sites.
    (51) Comment: One commenter stated that they would like to be able 
to trap and translocate prairie dogs in public areas where the safety 
of visitors is being compromised, such as in public parking areas, 
public event seating areas, livestock corrals, and non-irrigated 
pastureland. One related comment from elected officials said that the 
requirement of a fence should not be a precedent for all private 
property owners. The commenters stated that fencing areas is not always 
feasible.
    Our Response: We added language to the final rule to allow filling 
of burrows and translocations of animals from areas where Utah prairie 
dogs create human safety hazards or disturb the sanctity of significant 
human cultural or human burial sites, but where fencing of these areas 
is not practicable. However, a prairie-dog proof fence must first be 
constructed before we would authorize lethal take in these areas under 
this final rule.
    (52) Comment: One commenter was concerned that the shortened 
timeframe for direct take (changing the start date for take from June 1 
to June 15) would be problematic.
    Our Response: The purpose of this special rule is to provide for 
the long-term conservation of the Utah prairie dog. Therefore, the 
specifications of the special rule are based on the biological needs of 
the species. Additionally, we consider the 15-day change to be a 
relatively minor alteration to the rule.
    (53) Comment: One commenter expressed concern that the take 
allowance for human safety, cultural, and burial sites would be 
unnecessarily constrained to ``only areas where a credible, serious 
public safety hazard or harm to significant human cultural or human 
burial sites could be clearly demonstrated.''
    Our Response: We do not believe that this constraint is impractical 
or burdensome. The ability to control prairie dogs in these situations 
is certainly important to local communities, and as such we believe it 
also is beneficial for Utah prairie dog recovery efforts. However, we 
intend that the rule is only applied in site-specific situations where 
there is a credible concern.
    (54) Comment: One commenter questioned the constitutionality of 
this 4(d) rule and Federal regulation of the Utah prairie dog, based on 
the Commerce Clause.
    Our Response: We believe this 4(d) rule is constitutional. The 
courts have issued several rulings on the constitutionality of the ESA 
under the Commerce Clause. The final environmental assessment evaluates 
the effects of this final rule to the human environment, including 
socioeconomics.

Application of the Utah Prairie Dog Special Rule Through the Present

    As explained above in the Special Rules Under ESA Section 4(d) 
section, under 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 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, 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 was inconsistent with the 
conservation of the species (50 CFR 17.40(g)).

[[Page 46169]]

    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. We concluded that the 
resulting overpopulation pressures increased 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). We 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, 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 
27438, 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, 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 increased 88 percent during the 
first 4 years (1985-1989) of implementation of the special rule (56 FR 
27438, June 14, 1991).
    In practice, and under Utah State Code (R657-19-6, R657-19-7), the 
UDWR permitted 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 fewer than 6,000 animals every year for the last 25 years. 
Annual permitted take amounts averaged 5.7 percent of the total 
rangewide population estimate (range equals 1.8 to 13.0 percent); 
actual take averaged 2.6 percent of the total rangewide estimated 
population (range equals 0.9 to 5.3 percent). Table 3 provides detailed 
information on permitted and reported take as a percent of the total 
rangewide population from 1985 to 2010 (UDWR 2010b, 2011, entire; Day 
2012, pers. comm.). Reported take was always well below permitted take, 
averaging 48 percent of permitted take across 25 years. As previously 
described, UDWR could have permitted take of up to 6,000 prairie dogs 
annually under the 1991 special rule, regardless of the spring count 
data.
    Figure 1 illustrates annual rangewide population estimates from 
1985 to 2010 with a population trend line. Throughout implementation of 
the previous 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 2010, pers. comm.).

                       Table 3--Amount of Utah Prairie Dog Take Permitted and Reported Under the ESA 4(d) Rule by UDWR, 1985-2010
                                                        [UDWR 2010b, 2011; Day 2012, pers. comm.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Permitted                Reported
                                                                                                         take                     take        Reported
                                                                           Rangewide                  percentage               percentage       take
                           Year *                               Spring    population     Permitted        of        Reported       of        percentage
                                                                count      estimate        take        rangewide      take      rangewide   of permitted
                                                                                                      population               population        take
                                                                                                       estimate                 estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
1985........................................................      3,299        23,753           845           3.6        426           1.8            50
1986........................................................      4,400        31,680         2,040           6.4      1,247           3.9            61
1987........................................................      4,771        34,351           975           2.8        370           1.1            38
1988........................................................      4,640        33,408         2,415           7.2        528           1.6            22
1989........................................................      7,527        54,194         3,050           5.6        838           1.5            27
1991........................................................      4,492        32,342         4,200          13.0      1,632           5.0            39
1992........................................................      4,067        29,282         3,520          12.0      1,543           5.3            44
1993........................................................      3,954        28,469         1,050           3.7        599           2.1            57
1994........................................................      3,702        26,654         1,190           4.5        779           2.9            65
1995........................................................      3,576        25,747           630           2.4        461           1.8            73
1996........................................................      3,917        28,202           520           1.8        436           1.5            84
1997........................................................      4,359        31,385         1,065           3.4        589           1.9            55
1998........................................................      5,106        36,763         1,220           3.3        717           1.9            59
1999........................................................      5,068        36,490         2,496           6.8      1,233           3.4            49
2000........................................................      5,892        42,422         3,700           8.7      1,386           3.3            37
2001........................................................      4,223        30,406         3,719          12.2      1,626           5.3            43
2002........................................................      4,933        35,518         3,781          10.6      1,760           4.9            46
2003........................................................      3,729        26,849         2,620           9.8      1,195           4.4            45
2004........................................................      4,102        29,534         1,360           4.6        363           1.2            27
2005........................................................      5,375        38,700         1,470           3.8        673           1.7            46
2006........................................................      5,524        39,773         1,060           2.7        343           0.9            32
2007........................................................      5,991        43,135           944           2.2        482           1.1            51
2008........................................................      5,791        41,695         1,204           2.9        561           1.3            47
2009........................................................      5,827        41,954         1,532           3.6        558           1.3            36
2010........................................................      5,648        40,666         1,870           4.7      1,425           3.6            76
                                                             -------------------------------------------------------------------------------------------
AVG.........................................................      4,796        34,535         1,939           5.7        814           2.6            48
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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.


[[Page 46170]]

BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR02AU12.000


[[Page 46171]]


BILLING CODE 4310-55-C

Amendments to the 4(d) Special Rule for Utah Prairie Dogs

    Based on new scientific information and 25 years of available data, 
we amend the previous 4(d) special rule. This amendment clarifies the 
previous special rules, by more specifically identifying locations and 
situations where lethal take is allowed because we have determined it 
to be compatible with recovery of the species; these are agricultural 
lands, properties within 0.8 km (0.5 mi) of conservation lands, and 
areas where Utah prairie dogs create serious human safety hazards or 
disturb the sanctity of significant human cultural or human burial 
sites. We also are providing a take exemption for otherwise legal 
activities associated with standard agricultural practices. In these 
circumstances, imposing the take prohibitions is not considered 
necessary and advisable for the conservation of the Utah prairie dog. 
In fact, allowing take in these specific situations likely will result 
in greater conservation gains for the Utah prairie dog than would the 
application of all section 9 prohibitions (see Limiting Where Take Is 
Allowed and Incidental Take From Normal Agricultural Practices, below). 
We also are providing limits to the amount and methods of take that may 
be allowed. Finally, we are providing the opportunity for entities 
other than UDWR to evaluate and permit control on lands specified under 
this rule.
    Our amendments are largely consistent with the past practices and 
permitting as administered by UDWR under the previous special rules. 
Utah prairie dog populations have remained stable to increasing 
throughout implementation of the previous special rules as implemented 
under the UDWR permit system (see Figure 1). Our amendments are 
necessary and advisable to ensure sufficient conservation for Utah 
prairie dogs and the species' continuing stable-to-increasing, long-
term population trends. Below we describe the restrictions on direct 
take and the new take provisions.
    This regulation extends the prohibitions in section 9(a)(1) of the 
ESA to Utah prairie dogs on all other lands across the species' range, 
where not specifically exempted by this 4(d) rule. We have determined 
that the regulation of take in the areas specified in this 4(d) rule is 
necessary and advisable for the conservation of the Utah prairie dog.

Permitting Take

Agricultural Lands
    The previous special rules (49 FR 22330, May 29, 1984; 56 FR 27438, 
June 14, 1991) allowed take of Utah prairie dogs when permitted by 
UDWR. Under these rules, UDWR biologists were required to count Utah 
prairie dogs, determine extent of damage, determine level of take, and 
issue permits to applicants who requested the ability to control 
prairie dogs on their lands. At the time the previous rules were 
published, UDWR biologists were likely the only persons with the 
expertise to perform these permitting tasks. However, we now have a 
larger partnership effort, in the form of the Utah Prairie Dog Recovery 
Implementation Program, in which members of other State, Federal, 
Tribal, and local entities and the public are working together on 
various programs to facilitate the species' recovery (USFWS 2012, p. 
1.9-11). Because of this partnership, we can reasonably assume that 
other entities may hire biologists or individuals with expertise in 
Utah prairie dogs, and that these individuals may be available to 
conduct many of the permitting responsibilities previously undertaken 
by the UDWR. Approved permitting entities would at a minimum be 
required to employ a sufficient number of professional wildlife 
biologists to conduct all permitting responsibilities; request and 
complete permitting training from the UDWR for staff assigned to 
permitting; complete the USFWS's annual Utah prairie dog survey 
training; and maintain a complete reporting and tracking system for 
take, including annual reports on the number and location of permits 
issued, spring population counts and boundaries of permitted colonies, 
number of animals allowed to be taken, number of animals actually 
taken, method of take, and method of disposal of all Utah prairie dogs 
taken. Thus, this special rule allows, with the Service's written 
approval, other entities to perform the UDWR permitting and reporting 
tasks for control activities. For simplicity, this rule refers 
throughout to ``permitting entities,'' and thus applies to UDWR or 
other permitting entities should those entities take over specific 
responsibilities under this special rule.
Safety Hazards, Human Cultural and Burial Sites
    Take would be allowed where Utah prairie dogs create serious human 
safety hazards or disturb the sanctity of significant human cultural or 
human burial sites (see Limiting Where Take is Allowed, Safety Hazards, 
Human Cultural and Burial Sites, below) when Utah prairie dogs are 
determined, with the written approval of the Service, to be presenting 
serious human safety hazards (e.g., airport safety areas, recreational 
sports fields, nursing homes, schools), or disturbing the sanctity of a 
significant human cultural or human burial site sites (e.g., public 
cemetery, sacred Tribal sites) if these lands are determined not 
necessary for the conservation of the species. No permit would be 
required in these instances.

Limiting Where Take Is Allowed

    The 1991 special rule allowed take on private lands anywhere within 
the range of the Utah prairie dog. However, in practice and in 
accordance with Utah Code (R657-19-6, R657-19-7), UDWR permitted take 
only on agricultural lands where prairie dogs were causing damage. In 
this revision to the special rule, we limit the locations where take is 
allowed to agricultural lands, private property within 0.8 km (0.5 mi) 
of conservation lands, and areas where Utah prairie dogs create serious 
human safety hazards or disturb the sanctity of significant human 
cultural or human burial sites.
Agricultural Lands
    Permitting entities will issue permits for direct take on 
agricultural lands. This is consistent with UDWR's permitting 
procedures under the previous special rules. However, this revision 
provides a specific definition for agricultural lands for clarification 
purposes. Specifically, the above activities are exempted from the take 
prohibition only on lands meeting the Utah Farmland Assessment Act of 
1969 definition of agricultural lands (Utah Code Annotated Sections 59-
2-501 through 59-2-515). Thus, to be considered agricultural land under 
this 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 permitted take to 
agricultural lands is consistent with the justification

[[Page 46172]]

provided in the previous special rules for the species (as summarized 
above).
    Additionally, agricultural operators must demonstrate to the 
permitting entity that their land is being physically or economically 
impacted by Utah prairie dogs. Before an application can be approved, 
the permitting entity 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 total population 
estimate (adults and juveniles) for the colony. A minimum spring count 
of seven animals is required to ensure that permits are authorized only 
where resident prairie dogs have become established on agricultural 
lands (Day 2011, pers. comm.). Thus, lands being minimally impacted by 
dispersing prairie dogs are not covered. These restrictions are 
consistent with past UDWR practice. Utah prairie dog populations have 
remained stable to increasing throughout implementation of the previous 
special rules and past practices, as implemented under the UDWR permit 
system. As described below, we also have concluded that allowing take 
on agricultural lands benefits Utah prairie dog conservation efforts 
(see ``Conservation Benefits of Allowing Take on Specific Lands''). 
Therefore, consistent with past practice and data that indicate these 
restrictions will support the ongoing conservation of the species, we 
adopt these restrictions.
Properties Near Conservation Lands
    Permitting entities will be allowed to issue permits for direct 
take on private properties within 0.8 km (0.5 mi) of Utah prairie dog 
conservation lands. All private properties within 0.8 km (0.5 mi) of 
conservation lands automatically fall into this category even if they 
also are agricultural lands. Although the 1991 special rule already 
allowed for take in this situation (i.e., take was allowed on private 
lands across the species' range), such take was not previously 
authorized by UDWR practice or Utah Code (R657-19-6, R657-19-7). 
However, we believe the continuation of this provision in our 
rulemaking is important for Utah prairie dog recovery efforts. 
Permitting take in this manner on private property within 0.8 km (0.5 
mi) of 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 are generally selected or approved by the 
Recovery Team, taking into consideration spatial distribution, colony 
size, colony persistence, connectivity between habitats, and their 
ability to contribute to the species' recovery (USFWS 2012, p. 3.5-4). 
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, a description of the parcel must be 
submitted to the permitting entity, 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 private properties within 0.8 km (0.5 mi) of the conservation land 
parcel; the baseline populations of prairie dogs on the private 
properties (the highest estimated population size (adults and 
juveniles) 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 private properties. If no UDWR surveys were 
conducted during the previous 5-year period prior to establishment of 
the conservation property, then the baseline population is the 
estimated total (summer) population size on that property as determined 
in the first survey conducted after the establishment of the 
conservation property. The amount of permitted take on properties 
within 0.8 km (0.5 mi) of conservation lands, discussed further below, 
will be limited each year to the number of animals that exceed the 
baseline estimated population size (adults and juveniles) (see Limiting 
the Amount and Distribution of Direct Take That Can Be Permitted, 
``Properties Near Conservation Lands,'' below).
    As described below (see ``Conservation Benefits of Allowing Take on 
Specific Lands''), we find that this addition to the special rule is 
prudent for the conservation of Utah prairie dogs. We can lose recovery 
opportunities for the species if nearby landowners believe that 
activities on their lands will be encumbered in the future if prairie 
dogs migrate from conservation lands to nearby properties. This change 
to the 4(d) rule should greatly facilitate conservation opportunities 
by removing opposition to those efforts by other stakeholders that 
could be affected.
Safety Hazards, Human Cultural and Burial Sites
    Take is allowed in areas where Utah prairie dogs are determined, 
with the written approval of the Service, to be presenting serious 
human safety hazards (e.g., airport safety areas, recreational sports 
fields, nursing homes, schools), or disturbing the sanctity of 
significant human burial or human cultural sites if these lands are 
determined not necessary for the conservation of the species. 
Significant human burial sites may include public cemeteries and tribal 
burial grounds (for example, as described by the Native American Graves 
Protection and Repatriation Act; Pub. L. 101-601; 25 U.S.C. 3001-3013). 
Significant human cultural sites may include sacred tribal sites such 
as Pow Wow grounds and sacred structures. No permit is required in 
these instances once written approval is received from the Service.
    Take will only be allowed by the Service in areas where a credible, 
serious public safety hazard or harm to significant human cultural or 
human burial sites could be clearly documented. Areas of serious human 
safety concern do not include public rangelands or properties being 
developed for residential, commercial, or transportation uses. In 
addition, we do not intend for this rule to be used to eliminate 
prairie dogs because of concerns regarding plague transmission to 
humans, unless this disease becomes a proven human safety issue in the 
future, and directly linked to the presence of Utah prairie dogs.
    To reduce hazards, prairie dog burrows may be filled with dirt if 
they are directly creating human hazards or disturbing the sanctity of 
significant human cultural or human burial sites. Utah prairie dogs 
also may be translocated from these sites to approved translocation 
sites by properly trained personnel using a Service-approved 
translocation protocol. Lethal take in approved situations is 
considered a last resort, and is only allowable after all practicable 
measures to resolve the conflict are implemented. All practicable 
measures means, with respect to these situations, the: (1) Construction 
of prairie-dog proof fence, above and below grade to specifications 
approved by the Service, around the area in which there is concern, and 
(2) translocation of Utah prairie dogs out of the area in which there 
is a concern. Translocations will include all animals that can be 
captured within the fenced area, regardless of the weight or sex of 
that animal. Lethal take is allowed only to remove prairie dogs that 
remain in

[[Page 46173]]

these areas after the measures to fence and translocate are 
successfully carried out. Despite our best engineering efforts, 
prairie-dog proof fences may still be breached by prairie dogs. The 
local communities or private entities are required to maintain the 
fence, fix any breaches, and modify the fences as necessary to limit 
access of prairie dogs in order for the lethal take authorization to be 
sustained long term. These circumstances will be certified in writing 
by the Service following any necessary site visits and coordination 
with the requesting entity. As stated above, no permit will be required 
to allow take under these conditions.
Conservation Benefits of Allowing Take on Specific Lands
    Overall, continuing to allow permitted take on agricultural lands, 
lands within 0.8 km (0.5 mi) of conservation lands, and lands where 
Utah prairie dogs create serious human safety concerns or disturb the 
sanctity of significant human cultural or human burial sites 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 (Cully 1997, pp. 153-
156; Reeve and Vosburgh 2006, pp. 122-123).
    Controlled removal also may help mediate the potential for plague 
outbreaks on prairie dog colonies in some situations. High animal 
densities can play a role in facilitating the 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). Therefore, 
allowing control on agricultural lands may 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). However, as previously described (see 
``Life History''), there are a variety of factors that play a role in 
the occurrence and extent of enzootic and epizootic plague events, and 
thus we are not able to conclude that reducing prairie dog population 
densities will always result in the reduction of plague occurrence or 
its resulting impacts to prairie dog colonies.
    We 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). Our new 
Utah Prairie Dog Revised Recovery Plan emphasizes conservation efforts 
on private and other non-Federal lands (USFWS 2012, p. 2.3-2).
    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 feel 
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). Local communities and congressional 
representatives are concerned regarding safety and sacredness issues 
associated with prairie dogs that occur respectively along airport 
runways and in local cemeteries. In addition, 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 create incentives for private 
landowners and local communities to participate in prairie dog habitat 
improvement and protection measures. We can achieve this only if we 
demonstrate that the benefits of prairie dog conservation outweigh the 
costs to the landowner and communities, and if control programs that 
address landowner concerns and opposition are 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). Similarly, local communities 
want the ability to control Utah prairie dogs in specific situations 
where they cause serious human safety concerns or disturb the sanctity 
of human cultural or human burial sites.
    Our recent experiences show that if we are mindful of landowner, 
community, and safety needs, and if we provide mechanisms to control 
Utah prairie dogs where they conflict with certain human land uses or 
create serious safety hazards, we can improve landowner and local 
community support for the 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). Between 2005 and 2007, we 
completed five individual 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. These five 
safe harbor agreements provide habitat improvements for Utah prairie 
dogs on 1,230 ac (497 ha) of habitat.
    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

[[Page 46174]]

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 ``habitat credit exchange'') or similar conservation 
banking opportunities. The credit exchange allows 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 pays 
landowners to protect properties in perpetuity with conservation 
easements that conserve Utah prairie dogs. Conservation on private 
lands can then be used to mitigate development in Utah prairie dog 
habitat. The habitat credit exchange, 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 to obtain incidental take permits under section 10(a)(1)(B) 
and their associated 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 will be employed 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 
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 nearby 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 is prudent to 
limit where take may be permitted to: (1) Agricultural lands being 
physically or economically impacted by Utah prairie dogs when the 
spring count on the agricultural lands is seven or more individuals 
(see Limiting the Amount and Distribution of Direct Take That Can Be 
Permitted, ``Agricultural Lands,'' below), (2) private properties 
within 0.8 km (0.5 mi) of Utah prairie dog conservation lands, and (3) 
locations where Utah prairie dogs present serious human safety hazards 
or disturb the sanctity of significant human cultural or human burial 
sites--e.g., airport safety areas, recreational sports fields, 
cemeteries, sacred Tribal sites. Limiting the existing take authority 
to these locations is consistent with UDWR's permitting practices under 
the previous special rules. Prairie dogs in these areas achieve 
population densities and abundances higher than their counterparts in 
native semiarid grassland communities. In addition, allowing take on 
private property within 0.8 km (0.5 mi) of conservation lands and areas 
with safety or human cultural concerns will promote landowner and 
community support for Utah prairie dogs 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 previous special rule and past practices, as 
implemented under the UDWR's permit system.

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

Agricultural Lands
    The 1991 special rule allowed UDWR to permit take for a maximum of 
6,000 animals annually, without additional restrictions as long as such 
take was not having an effect that was inconsistent with Utah prairie 
dog conservation. A set maximum take limit such as this could be 
considered a fixed harvest rate.
    According to recent literature, we now conclude that 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 2010, the total estimated rangewide population of 
Utah prairie dogs (including juveniles) ranged from 23,753 to 54,194 
animals (see Table 3, above). Thus, since 1991, if UDWR had authorized 
the maximum amount of allowed take (6,000 animals), it would have 
represented 11 to 26 percent of the total estimated annual rangewide 
population (adults and juveniles). The UDWR has never authorized the 
1991 rule's maximum allowed take (6,000 animals). Actual reported take 
has always been considerably below the maximum allowance. We do not 
know if a fixed amount of 6,000 animals would negatively affect Utah 
prairie dog populations over time. Therefore, 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 are prudent.
    According to the literature, a fluctuating 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). Available models indicate that harvest rates of 20 to 25 
percent of a prairie dog population are sustainable (Reeve and Vosburgh 
2006, p. 123; CDOW 2007, p. 135); however, these models were not 
specific to Utah prairie dogs. 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

[[Page 46175]]

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; the existing models are not specific to 
agricultural lands as in the case of this special rule. Thus, the 
suggested sustainable harvest rates recommended by these models are not 
directly applicable to agricultural lands occupied by Utah prairie 
dogs. Regardless, we use this available modeling in conjunction with 
data from 25 years of implementation of the previous special rules to 
allow take in a manner that promotes the conservation of the Utah 
prairie dog.
    Although the previous special rules did not follow a fluctuating 
harvest-rate model (i.e., a fixed rate of 6,000 animals could be taken 
annually), we used the available UDWR implementation data to determine 
the yearly permitted and actual take numbers as percentages of total 
annual population estimates. Under the UDWR system, permitted take has 
averaged 5.7 percent of the total rangewide population estimate (range 
equals 1.8 to 13.0 percent), with actual take averaging 2.6 percent of 
the total 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, 
above).
    This rule limits the allowable permitted take to no more than 10 
percent of the estimated annual rangewide population (adults and 
juveniles). Take associated with agricultural lands can never exceed 7 
percent of the estimated annual rangewide population. The remaining 
allowable take is reserved for properties within 0.8 km (0.5 mi) of 
conservation lands (see below).
    While our new limit on allowable take is above the average actual 
take under the previous special rules, UDWR-permitted take associated 
with agricultural lands previously met or exceeded the standard for 
agricultural lands (7 percent) eight times since 1985. Thus, this rule 
is more restrictive than past practice in some years and less 
restrictive than past practice in other years. We also note that actual 
take has always been less than permitted take (see Table 3, above), and 
we expect this trend to continue under this revised special rule. In 
addition, our new limit on allowable take is well below the standards 
set by the previously described modeling where harvest rates of 20 to 
25 percent are sustainable.
    We include additional safeguards. Permitting entities will 
spatially distribute the 7 percent allowed take on agricultural lands 
across the three Recovery Units, based on the distribution of the total 
annual population estimate within each Recovery Unit. This spatial 
distribution will help ensure that the take is not clustered in one 
area, and is instead more uniform based on comparative annual 
population numbers.
    Furthermore, we are limiting within-colony take on agricultural 
lands to one-half of a colony's estimated annual productivity. Annual 
productivity = [(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)], or approximately 36 percent of the total 
estimated population of the colony. This limit is consistent with 
UDWR's past practices. Under these practices, since 1985, we have never 
verified the loss of a prairie dog colony because of take permitted by 
UDWR (Day 2010, pers. comm.). 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 2010, pers. comm.). Our available data 
show that reported take in 1 year has not resulted in significant 
population declines of the colony the following year (Brown 2012). 
Thus, limiting within-colony take on agricultural lands to no more than 
one-half of a colony's estimated annual productivity (approximately 36 
percent of the total estimated colony population) is consistent with 
conservation of the Utah prairie dog.
    Colony size will be taken into consideration by the permitting 
biologist when evaluating the permittee's property and determining 
appropriate take levels, because the impacts of take may be greater on 
smaller colonies (CDOW 2007, p. 135). Personnel from the permitting 
entity will count prairie dogs on the applicant's property and 
determine a total population estimate (adults and juveniles) for each 
colony. The permitting entity will identify each permitted colony by 
name or number. A minimum spring count of seven animals (total 
population estimate = 50 animals) is required to ensure that permits 
are authorized only where resident prairie dogs have become established 
on agricultural lands (Day 2011, pers. comm.), and to ensure that 
lethal take does not result in the elimination of the colony (CDOW 
2007, p. 128). If the maximum amount of take (one-half of the colony's 
productivity = 18 prairie dogs) occurs on this size colony, it would 
reduce the total colony size to 32 animals prior to the following 
breeding season. Colonies of at least 25 prairie dogs are likely to 
show population growth with very little risk of extinction. Populations 
with 50 or greater animals show no risk of extinction and strong 
population growth (CDOW 2007, p. 128). Therefore, we expect prairie dog 
colonies of at least 32 animals to continue to exist long term with 
annual, regulated lethal take. This conclusion is supported by our 
observations that we have never verified the loss of a Utah prairie dog 
colony because of take permitted by UDWR under the previous special 
rules, and prairie dog counts have remained stable to increasing on 
sites where permits were repeatedly requested and given since 1985 (Day 
2010, pers. comm.).
    These limits are largely consistent with UDWR's past practice, 
which has successfully controlled prairie dogs in site-specific 
locations without negatively impacting recovery of the species (Day 
2010, pers. comm.; Brown 2012). In fact, this rule is more restrictive 
in that it increases the minimum colony size for permitting from a 
spring count of five animals (1991 special rule) to a spring count of 
seven animals (total estimated population size = 50 animals) because 
that is the best available information we have to ensure continued 
population growth rates and low extinction risk (CDOW 2007, p. 128).
Properties Near Conservation Lands
    As noted above, a maximum of 7 percent of estimated annual 
rangewide population is allocated to agricultural lands. The remaining 
take (3 percent or more, depending on the percent of take associated 
with agricultural lands) is reserved for permitted take on private 
property within 0.8 km (0.5 mi) of Utah prairie dog conservation lands. 
This level of take allows us to address impacts to private lands 
associated with increased prairie dog distribution and numbers that are 
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.

[[Page 46176]]

    The extent of take on properties within 0.8 km (0.5 mi) of 
conservation lands is further limited to not reduce populations below 
the baseline estimated total population size (adults and juveniles) 
that existed on these 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 (adults and juveniles) on the property during the 5 
years prior to establishment of the conservation property, except that 
if no UDWR surveys to determine population size on a property were 
conducted during such 5-year period, the baseline population is the 
estimated total (summer) population size on that property as determined 
in the first survey conducted after the establishment of the 
conservation property. Thus, this provision provides a conservation 
benefit for Utah prairie dogs by promoting landowner support for such 
efforts while not reducing populations below the established baseline. 
Similar provisions were incorporated into all previously approved Utah 
prairie dog safe harbor agreements.
Safety Hazards, Human Cultural and Burial Sites
    We are not limiting the amount of translocation or lethal take on 
lands where Utah prairie dogs create serious human safety hazards or 
disturb the sanctity of significant human cultural or human burial 
sites. These sites are relatively small areas, and for lethal take the 
areas must be fenced, and prairie dogs removed by translocation prior 
to the Service's written approval for lethal take. For example, fencing 
was recently constructed around the Parowan airport runway to preclude 
prairie dogs from using 53 ac (21 ha) of occupied habitat, and the 5 ac 
(2 ha) Paragonah cemetery will be fenced in 2012; prairie dogs will be 
translocated from these sites prior to lethal take. Thus, we expect 
that the numbers of Utah prairie dogs lethally removed will be small. 
In addition, as previously described, these areas do not contribute to 
conservation of the species because they are generally within otherwise 
developed areas with substantial human activity and habitat 
fragmentation. Translocation of prairie dogs from these sites also will 
assist with recovery efforts on Federal lands (USFWS 2012, p. 3.5-7).
    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 shooting, 
while documented, are rare (Knowles 1988, p. 54). Impacts to other 
species of prairie dogs from unregulated or minimally regulated 
recreational shooting, as cited above, are likely to be more pronounced 
than impacts to Utah prairie dog permitted control, given our 
restrictions on the amount and distribution of take.
    On the whole, we believe our limits on the amount and distribution 
of take ensures 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 permitted take limits will help ensure 
that private landowners and local communities are willing to work with 
us on prairie dog conservation efforts (see Limiting Where Take is 
Allowed, above). Consequently, we believe this final rule is sufficient 
to address prairie dog control issues and Utah prairie dog recovery 
simultaneously.

Limiting Take by Season

Agricultural Lands and Properties Near Conservation Lands
    We are limiting take on agricultural lands and properties within 
0.8 km (0.5 mi) of conservation lands by season. Take is allowed 
between June 15 and December 31. This is a moderate change from the 
dates authorized by the previous special rules, but is based on our 
most current knowledge of the species biology; pups emerge from their 
burrows by approximately mid-June, at which time they are foraging 
independently (Hoogland 2003, p. 236; see ``Life History,'' above). 
Therefore, the loss of female adult prairie dogs to shooting will not 
negatively affect the survivability of the remaining young. In 
addition, prairie dog populations with seasonal shooting closures of 
March 14 to June 15 show positive population growths and low to 
negligible risk of extirpation (CDOW 2007, p. 135). These seasonal 
shooting closure dates directly correspond to our timing of June 15 
through December 31 for allowing direct lethal take on agricultural 
lands. Thus, we can conclude that restricting use of this 4(d) rule 
between the dates of January 1 through June 14 will result in positive 
population growths with low to negligible risk of extinction. This 
conclusion is supported by our observations that we have never verified 
the loss of a Utah prairie dog colony because of take permitted by 
UDWR, and prairie dog counts have remained stable to increasing on 
sites where permits were repeatedly requested over the last 25 years 
(Day 2010, pers. comm.). In this timeframe, UDWR provided permits to 
landowners beginning June 1. Thus, this revision to June 15 is more 
conservative than past practice, and is based on the best current 
available science.
    According to the literature and on-the-ground experience with Utah 
prairie dogs, our 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. Thus, 
permitted Utah prairie dog control on agricultural lands and properties 
near conservation lands is allowed from June 15 to December 31.
    Lethal take 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 
lethal take is restricted to times outside of the breeding and young-
rearing (lactating) periods, then impacts can be minimized (Vosburgh 
and Irby 1998, p. 370; CDOW 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

[[Page 46177]]

the previous special rules (Day 2010, pers. comm.).
Safety Hazards, Human Cultural and Burial Sites
    We will not restrict lethal take to a specified timeframe in areas 
where prairie dogs present a serious human safety concern or disturb 
the sanctity of a significant human cultural or human burial site 
because the specific intent of lethal take in these areas is to remove 
all remaining prairie dogs from these areas following implementation of 
all practicable measures, including fencing and translocations.

Limiting Methods Allowed To Implement Direct Take

    The previous special rules did not restrict the method or type of 
take UDWR could permit. In practice, UDWR previously permitted the 
control of Utah prairie dogs through translocation efforts, trapping 
intended to lethally remove prairie dogs, and shooting. This amendment 
limits methods of take that can be permitted on agricultural lands and 
properties within 0.8 km (0.5 mi) of conservation lands to be 
consistent with this past practice.
Agricultural Lands and Properties Near Conservation Lands
    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 2012, p. 1.9-1; 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. Previously, only UDWR performed Utah prairie dog 
translocations. This rule allows 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 translocation guidance. Translocated prairie dogs 
count toward the take limits established by the previous special rules 
and will continue to count toward the more restricted take limits in 
this rule. Translocation activities must be in accordance with Service-
approved translocation protocol in order for the provisions of this 
rule to apply.
    While translocation is and will 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, we are limiting the 
methods of intentional lethal take on agricultural lands and properties 
within 0.8 km (0.5 mi) of conservation lands to forms with a proven 
success record as demonstrated by past UDWR permitting, including 
lethal removal through trapping and shooting. Under this rule, 
permitted lethal 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, 
while the total population rangewide and within individual colonies 
subject to take have remained stable to increasing (Day 2010, pers. 
comm.).
    We are specifically prohibiting drowning, poisoning, and the use of 
gas cartridges, anticoagulants, and explosive devices as methods of 
permissible lethal control on agricultural lands and properties within 
0.8 km (0.5 mi) of conservation lands. Drowning or poisoning are 
typically applied across large areas and usually kill large numbers of 
prairie dogs (Collier 1975, p. 55). These techniques were not employed 
by UDWR under the previous rule and are explicitly prohibited by this 
rule because they do not allow control agents to target a specific 
number of prairie dogs or track actual take.
    One 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 one 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 also is possible from 
smaller quantities of lead (Pauli and Buskirk 2007, p. 103).
    At the present time, we do not have information to indicate that 
the concern of potential lead poisoning is translating into impacts on 
Utah prairie dogs. Allowed take is limited to agricultural lands, 
properties within 0.8 km (0.5 mi) of conservation lands, and areas 
where prairie dogs create serious human hazards or disturb the sanctity 
of significant human cultural or human burial sites. Therefore, any 
potential site-specific impacts as a result of potential lead poisoning 
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 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 prohibit certain types of 
shot (expandable vs. nonexpendable or lead vs. nonlead). However, we 
may consider ammunition-type restrictions in the future if available 
data indicate such restrictions would be necessary and advisable to 
provide for the conservation of the species.
Safety Hazards, Human Cultural and Burial Sites
    The use of any lethal take methodology will be allowed in areas 
where Utah prairie dogs create serious human safety hazards or disturb 
the sanctity of significant human cultural or human burial sites. At 
the time that lethal take is authorized at these sites, the areas will 
have been fenced and prairie dogs translocated off-site. Therefore, we 
anticipate that relatively small numbers of prairie dogs will remain in 
these areas. We do not consider these areas important to the 
conservation of the species because as previously stated they are 
generally within otherwise developed areas with substantial human 
activity and habitat fragmentation. It is our intent that these 
designated areas remain free of prairie dogs, and thus all otherwise 
lawful methodologies for lethal take are allowable.

Exemption for Incidental Take From Normal Agricultural Practices

    Normal agricultural practices can result in the unlawful 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

[[Page 46178]]

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.
    We are exempting incidental take resulting from agricultural 
practices on legitimately operating agricultural lands. Exempted 
practices 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 the landscape where 
Utah prairie dogs occur.
    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 adverse 
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.
    Providing a take exemption for otherwise legal activities 
associated with standard agricultural practices is necessary and 
advisable to provide for the conservation of the species. This is the 
case because agricultural users are a key partner in our efforts to 
recover the Utah prairie dog. As previously described, up to 85 percent 
of prairie dogs occur on private lands (see Table 2), many of which are 
in agricultural production (USFWS 2012, p. 1.7-3). Agricultural users 
are often interested in participating in conservation programs for the 
species such as safe harbors and conservation easements if they know 
they have some regulatory flexibility regarding their daily operational 
activities (see Limiting Where Take is Allowed, Conservation Benefits 
of Allowing Take on Specific Lands, above; Elmore and Messmer 2006, p. 
9-13; USFWS 2012, p. 2.3-2). If we can provide regulatory flexibility 
to these land users, they are more likely to support rangewide 
conservation programs for the Utah prairie dog.
    Because such incidental take is not limited in quantity, it is 
imperative we build in safeguards to prevent abuse. Therefore, the 
above activities are 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 
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 of agricultural land status 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 eligible for the incidental take 
provisions as described in this 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 previous 
special rules 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. As described earlier, 
we conclude that allowing direct lethal take in agricultural areas will 
increase the participation of landowners and local communities in the 
species' conservation and recovery (see Limiting Where Take is Allowed, 
``Conservation Benefits of Allowing Take on Specific Lands''). This 
same benefit is anticipated with standard agricultural practices 
because agricultural users are a key partner for Utah prairie dog 
recovery efforts (see Exemption for Incidental Take from Normal 
Agricultural Practices, above).

Effects of This Rule

    The 1991 special rule (56 FR 27438, June 14, 1991; 50 CFR 17.40(g)) 
authorized UDWR to permit take of up to 6,000 animals on private land 
within the species' range annually. We amend that rule with new 
restrictions on direct take previously authorized and add a new 
incidental take authorization. Table 4 summarizes the amendments 
finalized by this rule.

                Table 4--Summary of Our Final Amendments
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                            Final Amendments
------------------------------------------------------------------------
Who Can Allow Take...................  UDWR or, with the Service's
                                        written approval, other entities
                                        can perform the permitting and
                                        reporting tasks for control
                                        activities on agricultural lands
                                        or properties within 0.8 km (0.5
                                        mi) of conservation lands. No
                                        permits are required for take in
                                        areas where prairie dogs create
                                        serious human safety hazards or
                                        disturb the sanctity of
                                        significant human cultural or
                                        human burial sites.
Where Direct Take Is Allowed.........  Direct take is limited to:
                                        Agricultural land being
                                        physically or economically
                                        impacted by Utah prairie dogs
                                        when the spring count on the
                                        agricultural lands is seven or
                                        more individuals; private
                                        properties within 0.8 km (0.5
                                        mi) of Utah prairie dog
                                        conservation land; and areas
                                        where human safety hazards or
                                        the sanctity of significant
                                        human cultural or human burial
                                        sites are a serious concern, but
                                        only after all practicable
                                        measures to resolve the conflict
                                        are implemented.

[[Page 46179]]

 
Amount of Rangewide Direct Take        The upper permitted take limit
 Allowed.                               may not exceed 10 percent of the
                                        estimated rangewide population
                                        annually for agricultural lands
                                        and properties within 0.8 km
                                        (0.5 mi) of conservation lands;
                                        and, on agricultural lands, may
                                        not exceed 7 percent of the
                                        estimated annual rangewide
                                        population annually. There is no
                                        limit for the amount of take in
                                        areas where prairie dogs create
                                        serious human safety hazards or
                                        disturb the sanctity of
                                        significant human cultural or
                                        human burial sites, and take in
                                        these circumstances does not
                                        contribute to the upper
                                        permitted take limits described
                                        above.
Site-Specific Limits on Amount of      On agricultural lands, within-
 Direct Take.                           colony take is limited to one-
                                        half of a colony's estimated
                                        annual production (approximately
                                        36 percent of estimated total
                                        population). On properties
                                        neighboring conservation lands,
                                        take is 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, except
                                        that if no UDWR surveys to
                                        determine population size on a
                                        property were conducted during
                                        such 5-year period, the baseline
                                        population is the estimated
                                        total (summer) population size
                                        on that property as determined
                                        in the first survey conducted
                                        after the establishment of the
                                        conservation property. There are
                                        no site[dash]specific direct
                                        take limits in areas where
                                        prairie dogs create serious
                                        human safety hazards or disturb
                                        the sanctity of significant
                                        human cultural or human burial
                                        sites.
Timing of Allowed Direct Take........  The timing of permitted direct
                                        take on agricultural lands and
                                        properties ne within 0.8 km (0.5
                                        mi) of conservation lands is
                                        limited to June 15 through
                                        December 31. There is no timing
                                        restriction where prairie dogs
                                        create serious human safety
                                        hazards or disturb the sanctity
                                        of significant human cultural or
                                        human burial sites, except that
                                        translocations must be completed
                                        prior to conducting any lethal
                                        take.
Methods Allowed to Implement Direct    On agricultural lands and
 Take.                                  properties within 0.8 km (0.5
                                        mi) of conservation lands,
                                        direct take is 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, and the use
                                        of gas cartridges,
                                        anticoagulants, or explosive
                                        devices is prohibited in these
                                        areas. There are no restrictions
                                        on methods to implement take in
                                        areas where prairie dogs create
                                        serious human safety hazards or
                                        disturb the sanctity of
                                        significant human cultural or
                                        burial sites, except that
                                        translocations will be conducted
                                        before lethal measures of
                                        control are allowed.
Service Ability to Further Restrict    Unchanged. The Service may
 Direct Take.                           immediately prohibit or restrict
                                        take as appropriate for the
                                        conservation of the species.
Incidental Take for Agricultural       Utah prairie dogs may be taken
 Activities.                            when take is incidental to
                                        otherwise legal activities
                                        associated with standard
                                        agricultural practices (see
                                        Regulation Promulgation section
                                        for specifics).
------------------------------------------------------------------------

    First, this rule restricts where direct take can be permitted to: 
(1) Agricultural land being physically or economically impacted by Utah 
prairie dogs when the spring count on the agricultural lands is 7 or 
more individuals; (2) private property within 0.8 km (0.5 mi) of Utah 
prairie dog conservation land; and (3) areas where Utah prairie dogs 
are determined, with the approval of the Service, to be presenting a 
serious human safety hazard (e.g., airport safety areas, recreational 
sports fields, nursing homes, schools), or disturbing the sanctity of 
significant human cultural or human burial sites if these lands are 
determined not necessary for the conservation of the species.
    Second, this rule limits the amount and distribution of direct take 
that can be permitted. Total take cannot exceed 10 percent of the 
estimated annual rangewide population. On agricultural lands, permitted 
take is limited to 7 percent of the estimated annual rangewide 
population and within-colony take is limited to one-half of a colony's 
estimated annual productivity. On properties within 0.8 km (0.5 mi) of 
conservation lands, the remaining take (3 percent of the estimated 
annual rangewide population or more, depending on the amount permitted 
on agricultural lands) is restricted to animals in excess of the 
baseline population.
    Third, this rule limits the methods of take that can be permitted 
on agricultural lands and properties within 0.8 km (0.5 mi) of 
conservation lands 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.
    These limitations on direct take are largely consistent with past 
UDWR practice. Slight modifications are included where implementation 
data indicate modifications are warranted.
    Additionally, this rule exempts 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. Any Utah prairie 
dog mortalities resulting from these standard agricultural practices 
are in addition to the direct or intentional take described above. 
Allowable 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.
    Finally, the Service maintains the right to immediately prohibit or 
restrict 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. If restrictions on 
permitted taking are required, the Service will immediately notify the 
permitting entities in writing.
    These new restrictions on direct take and the 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 this rule will 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.

[[Page 46180]]

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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 section 4(d) special rule has been in place since 1984 that 
provides protections deemed necessary 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 allowed 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 final rule places 
limits on the previous special rules, the changes are largely 
consistent with past UDWR permitting practices. Because this rule 
largely institutionalizes past practices, there should be little or no 
increased costs associated with this regulation compared to the past 
similar special rules that were in effect for the last several decades.
    In summary, we have considered whether the rule results 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 these amendments do not have a significant economic impact 
on a substantial number of small entities. Therefore, a 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) This rule 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 rule does not impose a legally binding duty on non-Federal 
Government entities or private parties. Instead, this amendment to the 
previous special rules establishes take authorizations and limitations 
deemed necessary and advisable to provide for the conservation of the 
Utah prairie dog. Application of the provisions within this rule, as 
limited by existing regulations and this amendment, is optional.
    (b) We do not believe that this rule significantly or uniquely 
affects small governments. The State of Utah originally requested 
measures such as this regulation to assist with reducing conflicts 
between Utah prairie dogs and local landowners on agricultural lands 
(49 FR 22330, May 29, 1984). In addition, the UDWR actively assists 
with implementation of the 1984 special rule, as amended in 1991, and 
will do the same under this regulation, through a permitting system. 
Under this rule, we have included the ability for other permitting 
entities to perform many of the UDWR's permitting and reporting tasks 
for control activities. However, this change was in response to a 
recommendation from UDWR provided in that agency's comments to our 
proposed rule. 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 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 past UDWR practices. Therefore, 
the rule will 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

[[Page 46181]]

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 rule 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 poses 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 this rule provides 
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 allows 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 action does not result in any takings 
of private property. Should any takings implications associated with 
this amendment be realized, they will likely be insignificant.

Federalism

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this amendment with, appropriate State 
resource agencies in Utah. The State of Utah originally requested 
measures such as this regulation to assist with reducing conflicts 
between Utah prairie dogs and local landowners on agricultural lands 
(49 FR 22330, May 29, 1984). In addition, the UDWR actively assists 
with implementation of the previous special rules, and will do the same 
under this regulation, through a permitting system. Under this rule, we 
have included the ability for other permitting entities to perform many 
of the UDWR's permitting and reporting tasks for control activities. 
However, this change was in response to a recommendation from UDWR 
provided in that agency's comments to our proposed rule. 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, as amended, will continue to operate to 
maintain the existing relationship between the State and the Federal 
Government. Therefore, this rule does not have significant Federalism 
effects or implications to warrant the preparation of a federalism 
summary impact statement pursuant to the provisions of E.O. 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 amended the previous special rules 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. 
These amendments 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 (http://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm). The Service subsequently expanded this 
determination to section 4(d) rules. A section 4(d) rule provides the 
appropriate and necessary take 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.
    However, out of an abundance of caution, we complied with the 
provisions of NEPA for this rulemaking. We analyzed the impact of this 
modification to the existing special rule and determined that there 
were no significant impacts or effects caused by this rule. A final 
environmental assessment was completed for this action, and is 
available for public inspection (see ADDRESSES section).

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 ESA), 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 coordinated with affected Tribes within the 
range of the Utah prairie dog. We did not receive any comments on the 
proposed special regulations from Tribes or Tribal members during the 
public comment period.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued 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

[[Page 46182]]

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.

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.40 by revising paragraph (g) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (g) Utah prairie dog (Cynomys parvidens).
    (1) Except as noted in paragraphs (g)(2) through (g)(6) of this 
section, all prohibitions of Sec.  17.31(a) and (b) and exemptions of 
Sec.  17.32 apply to the Utah prairie dog.
    (2) A Utah prairie dog may be directly or intentionally taken as 
described in paragraphs (g)(3) and (4) of this section on agricultural 
lands, properties within 0.8 kilometers (km) (0.5 miles (mi)) of 
conservation lands, and areas where prairie dogs create serious human 
safety hazards or disturb the sanctity of significant human cultural or 
human burial sites.
    (3) Agricultural lands and properties near conservation lands. When 
permitted by the Utah Division of Wildlife Resources (UDWR), or other 
parties as authorized in writing by the Service, direct or intentional 
take is allowed on private properties that are located within 0.8 km 
(0.5 mi) of conservation land, and on agricultural land. Records on 
permitted take will be maintained by the State (or other parties as 
authorized in writing by the Service), and made available to the 
Service upon request.
    (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 seven or more individuals, and only during the period of June 15 to 
December 31; 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 hectares (5 contiguous acres) 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 during the period of June 15 to December 31.
    (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) Amount of permitted take on agricultural lands and private 
property near conservation land. (A) The UDWR, or other parties as 
authorized in writing by the Service, will ensure that permitted take 
on agricultural lands and properties within 0.8 km (0.5 mi) of 
conservation lands does not exceed 10 percent of the estimated 
rangewide population annually.
    (B) On agricultural lands, the UDWR, or other parties as authorized 
in writing by the Service, 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. The UDWR, 
or other parties as authorized in writing by the Service, will 
spatially distribute the 7 percent allowed take on agricultural lands 
across the three Recovery Units, based on the distribution of the total 
annual population estimate within each Recovery Unit.
    (C) In setting take limits on properties within 0.8 km (0.5 mi) of 
conservation lands, the UDWR, or other parties as authorized in writing 
by the Service, will consider the amount of take that occurs on 
agricultural lands. The State, or other parties as authorized in 
writing by the Service, 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 within 0.8 km (0.5 
mi) of conservation lands to animals in excess of the baseline 
population. The baseline population of these lands is determined in 
accordance with paragraph (g)(3)(iii)(D) of this section.
    (D) Take on properties within 0.8 km (0.5 mi) of conservation lands 
is restricted to prairie dogs 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 the establishment of 
the conservation property, except that if no UDWR surveys to determine 
population size on a property were conducted during such 5-year period, 
the baseline population is the estimated total (summer) population size 
on that property as determined in the first survey conducted after the 
establishment of the conservation property. The baseline population 
will be established by the UDWR, or other parties as authorized in 
writing by the Service.
    (E) Translocated Utah prairie dogs will count toward the take 
limits in paragraphs (g)(3)(iii)(A) through (D) of this section.
    (iv) Methods of allowed direct take on agricultural lands and 
private properties near conservation land. Methods for controlling Utah 
prairie dogs on agricultural lands and properties within 0.8 km (0.5 
mi) of conservation lands 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 and the use of gas cartridges, anticoagulants, and explosive 
devices are prohibited.
    (4) Human safety hazards and significant human cultural or human 
burial sites.
    (i) Nonlethal take is allowed where Utah prairie dogs create 
serious human safety hazards or disturb the sanctity of significant 
human cultural or human burial sites, if approved in writing by the 
Service. To reduce hazards, prairie dog burrows may be filled with dirt 
if they are directly creating human hazards or disturbing the sanctity 
of

[[Page 46183]]

significant human cultural or human burial sites. Utah prairie dogs 
also may be translocated from these sites to approved translocation 
sites by properly trained personnel using Service-approved 
translocation protocols.
    (ii) Direct or intentional lethal take is allowed where Utah 
prairie dogs create serious human safety hazards or disturb the 
sanctity of significant human cultural or human burial sites, but only 
after all practicable measures to resolve the conflict are implemented, 
and only as approved in writing by the Service. A permit is not 
required to allow take under these conditions.
    (A) All practicable measures means, with respect to these 
situations:
    (1) Construction of prairie-dog-proof fence, above and below grade 
to specifications approved by the Service, around the area in which 
there is concern.
    (2) Translocation of Utah prairie dogs out of the fenced area in 
which there is a concern must be conducted prior to allowing lethal 
take. Lethal take is allowed only to remove prairie dogs that remain in 
these areas after the measures to fence and translocate are 
successfully carried out.
    (3) Continued maintenance or modification of the fence as needed to 
preclude Utah prairie dogs from entering the fenced sites.
    (B) There are no restrictions on the amount, timing, or methods of 
lethal take allowed on lands where Utah prairie dogs create serious 
human safety hazards or disturb the sanctity of significant human 
cultural or human burial sites, as long as all qualifications in 
paragraphs (g)(4)(ii)(A)(1)through (3) of this section are met.
    (C) The amount of take in areas where Utah prairie dogs create 
serious human safety hazards or disturb the sanctity of significant 
human cultural or human burial sites does not contribute to the upper 
permitted take limits described above for agricultural lands and 
private properties within 0.8 km (0.5 mi) of conservation lands.
    (5) Incidental take associated with agriculture. Utah prairie dogs 
may be taken when take is incidental to otherwise-legal activities 
associated with legal and standard agricultural practices on 
legitimately operating agricultural lands. 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. 
There is no numeric limit established for incidental take associated 
with standard agricultural practices. Incidental take is in addition 
to, and does not contribute to, the take limits described in paragraphs 
(g)(2) through (4) of this section. A permit is not required for 
incidental take associated with agricultural practices.
    (6) If the Service receives evidence that take pursuant to 
paragraphs (g)(2) through (5) 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. The Service will notify the 
permitting entities in writing if take restrictions are necessary.
* * * * *

    Dated: July 17, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-18284 Filed 8-1-12; 8:45 am]
BILLING CODE 4310-55-P