Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations 66821

may visit http://www.regulations.gov/ DEPARTMENT OF THE INTERIOR Yellowstone Road, Suite 308A, search/footer/privacyanduse.jsp Cheyenne, WY 82009; telephone 307– Fish and Wildlife Service 772–2374. Persons who use a List of Subjects in 49 CFR Part 175 telecommunications device for the deaf 50 CFR Part 17 Air carriers, Hazardous materials (TDD) may call the Federal Information transportation, Radioactive materials, [Docket No. FWS–R6–ES–2015–0013; Relay Services (FIRS) at 800–877–8339. Reporting and recordkeeping FXES11130900000C6–145–FF09E42000] FOR FURTHER INFORMATION CONTACT: requirements. RIN 1018–BA42 Mark Sattelberg, Field Supervisor, Telephone: 307–772–2374. Direct all In consideration of the foregoing, we Endangered and Threatened Wildlife questions or requests for additional amend 49 CFR Chapter I as follows: and Plants; Establishment of a information to: BLACK–FOOTED FERRET QUESTIONS, U.S. Fish and PART 175—CARRIAGE BY AIRCRAFT Nonessential Experimental Population of Black-footed Ferrets in Wyoming Wildlife Service, Wyoming Ecological Services Field Office, 5353 Yellowstone ■ 1. The authority citation for part 175 AGENCY: Fish and Wildlife Service, Road, Suite 308A, Cheyenne, WY continues to read as follows: Interior. 82009. Individuals who are hearing- Authority: 49 U.S.C. 5101–5128, 44701; 49 ACTION: Final rule. impaired or speech-impaired may call the Federal Relay Service at 1–800–877– CFR 1.81 and 1.97. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 8337 for TTY assistance. ■ 2. In § 175.10, redesignate paragraphs coordination with the State of Wyoming SUPPLEMENTARY INFORMATION: (a)(19) through (a)(24) as paragraphs and other partners, will reestablish Executive Summary (a)(20) through (a)(25) and add new additional populations of the black- paragraph (a)(19) to read as follows: footed ferret (Mustela nigripes), a Purpose of the Regulatory Action § 175.10 Exceptions for passengers, federally listed endangered mammal, This is a final rule to designate the crewmembers, and air operators. into prairie dog (Cynomys spp.) black-footed ferret (Mustela nigripes) occupied habitat in Wyoming and (a) * * * nonessential experimental population classify any reestablished population as (NEP) area in the State of Wyoming in (19) Except as provided in § 173.21 of a nonessential experimental population accordance with section 10(j) of the this subchapter, battery-powered (NEP) under section 10(j) of the Endangered Species Act (Act). This portable electronic smoking devices Endangered Species Act of 1973, as designation increases the Service’s (e.g., e-cigarettes, e-cigs, e-cigars, e- amended (Act). This final rule flexibility and discretion in managing pipes, e-hookahs, personal vaporizers, establishes the NEP area and provides reintroduced endangered species and electronic nicotine delivery systems) for allowable legal incidental taking of allows promulgation of regulations when carried by passengers or the black-footed ferret within the deemed appropriate for conservation of crewmembers for personal use must be defined NEP area. The best available the reintroduced species. We have data indicate the reintroduction of carried on one’s person or in carry-on determined that the issuance of this rule black-footed ferrets to Wyoming is baggage only. Spare lithium batteries will advance the recovery of the biologically feasible and will promote endangered black-footed ferret. must be individually protected so as to conservation and recovery of the prevent short circuits (by placement in Specifically, this rulemaking will species. This NEP area and two facilitate the establishment of free- original retail packaging or by otherwise previously designated NEPs in insulating terminals, e.g., by taping over ranging populations of ferrets within the Wyoming collectively cover the entire species’ historical range in Wyoming, exposed terminals or placing each State of Wyoming and provide battery in a separate plastic bag or thereby contributing to the numerical consistent management flexibility and distributional population targets protective pouch). Each lithium battery Statewide. We are also amending the must be of a type which meets the laid out in the recovery plan’s delisting historical range column for the species and downlisting (reclassifying from requirements of each test in the UN within the List of Endangered and endangered to threatened) criteria (U.S. Manual of Tests and Criteria, Part III, Threatened Wildlife (List) to include Fish and Wildlife Service 2013a, p. 6) Sub-section 38.3. Recharging of the Mexico; the historical range information devices and/or the batteries on board in the List is informational, not Summary of the Major Provisions of the the aircraft is not permitted. Each regulatory. Regulatory Action In Question battery must not exceed the following: DATES: This rule becomes effective Under section 10(j) of the Act and our (i) For lithium metal batteries, a November 30, 2015. regulations at 50 CFR 17.81, the Service lithium content of 2 grams; or ADDRESSES: This final rule, along with may establish an NEP, outside of the (ii) For lithium ion batteries, a Watt- the public comments, environmental current range of the species, but within hour rating of 100 Wh. assessment (EA), and finding of no its historical range, for the purposes of significant impact (FONSI), is available reintroducing the species into formerly * * * * * on the Internet at http:// occupied habitat. Under this 10(j) rule, Issued in Washington, DC, on October 23, www.regulations.gov, Docket No. FWS– the Service is classifying any 2015 under authority delegated in 49 CFR R6–ES–2015–0013. Comments and reestablished black-footed ferret part 1.97 materials received, as well as supporting population in the State of Wyoming as Marie Therese Dominguez, documentation used in the preparation an NEP. The Service has determined Administrator. of this rule, will also be available for that this NEP designation meets the public inspection, by appointment, requirements of the Act; the population [FR Doc. 2015–27622 Filed 10–29–15; 8:45 am] during normal business hours at: U.S. is wholly geographically separate from BILLING CODE 4910–60–P Fish and Wildlife Service, Wyoming other populations, and the experimental Ecological Services Field Office, 5353 population is not essential to the

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continued existence of the black-footed amended (Act; 16 U.S.C. 1531 et seq.) the rule issued under section 10(j) of the ferret in the wild. without critical habitat. The Act Act (hereafter referred to as a 10(j) rule) This NEP designation will apply to all provides that species listed as contains the prohibitions and ferrets reintroduced to Wyoming, with endangered are afforded protection exemptions necessary and appropriate the exception of animals found on lands primarily through the prohibitions of to conserve that species. managed by the National Park Service or section 9 and the requirements of Before authorizing the release as an U.S. Fish and Wildlife Service. Under a section 7. Section 9 of the Act, among experimental population of any section 10(j) designation as an NEP, other things, prohibits the take of population (including eggs, propagules, both the take prohibitions and endangered wildlife. ‘‘Take’’ is defined or individuals) of an endangered or consultation requirements of the Act are by the Act as harass, harm, pursue, threatened species, and before relaxed, easing regulatory burden hunt, shoot, wound, kill, trap, capture, authorizing any necessary associated with endangered species and or collect, or attempt to engage in any transportation to conduct the release, facilitating acceptance by local such conduct. Section 7 of the Act the Service must find, by regulation, landowners and managers. outlines the procedures for Federal that such release will further the Once this rule takes effect, the interagency cooperation to conserve conservation of the species. In making Service, the Wyoming Game and Fish federally listed species and protect such a finding, the Service uses the best Department (WGFD), and other partners designated critical habitat. It mandates scientific and commercial data available propose to reintroduce the black-footed that all Federal agencies use their to consider: (1) Any possible adverse ferret at one or more additional sites existing authorities to further the effects on extant populations of a within the species’ historical range in purposes of the Act by carrying out species as a result of removal of Wyoming. The WGFD will serve as the programs for the conservation of listed individuals, eggs, or propagules for lead agency in the reintroduction and species. It also states that Federal introduction elsewhere; (2) the subsequent management of black-footed agencies must, in consultation with the likelihood that any such experimental ferret in Wyoming; however, WGFD will Service, ensure that any action they population will become established and continue to coordinate closely with the authorize, fund, or carry out is not likely survive in the foreseeable future; (3) the Service on these restoration efforts. to jeopardize the continued existence of relative effects that establishment of an experimental population will have on Costs and Benefits a listed species or result in the destruction or adverse modification of the recovery of the species; and (4) the Costs and benefits of a Statewide NEP designated critical habitat. Section 7 of extent to which the introduced designation in Wyoming will depend the Act does not affect activities population may be affected by existing upon the number and type of undertaken on private land unless they or anticipated Federal or State actions or reintroduction efforts initiated. The are authorized, funded, or carried out by private activities within or adjacent to Black-footed Ferret Recovery Plan a Federal agency. the experimental population area. Furthermore, as set forth in 50 CFR estimates that 35,000 acres (ac) (14,000 The 1982 amendments to the Act (16 hectares (ha)) of purposefully managed 17.81(c), all regulations designating U.S.C. 1531 et seq.) included the experimental populations under section prairie dog occupied habitat will be addition of section 10(j), which allows needed to meet Wyoming’s portion of 10(j) must provide: (1) Appropriate for the designation of reintroduced means to identify the experimental the rangewide habitat goal for populations of listed species as downlisting, and 70,000 ac (28,000 ha) population, including, but not limited ‘‘experimental populations.’’ Under to, its actual or proposed location, to meet their portion of the rangewide section 10(j) of the Act and our habitat goal for delisting (USFWS 2013a, actual or anticipated migration, number regulations at 50 CFR 17.81, the Service of specimens released or to be released, Table 8). This equates to purposeful may designate as an experimental management of approximately 2 percent and other criteria appropriate to identify population a population of endangered the experimental population(s); (2) a of prairie dog occupied habitat in or threatened species that has been or Wyoming to meet their portion of the finding, based solely on the best will be released into suitable natural scientific and commercial data rangewide habitat goal for delisting. We habitat outside the species’ current completed an environmental assessment available, and the supporting factual natural range (but within its probable basis, on whether the experimental for this action, which analyzes potential historical range, absent a finding by the impacts of reestablishing black-footed population is, or is not, essential to the Director of the Service in the extreme continued existence of the species in the ferrets in Wyoming under section 10(j) case that the primary habitat of the wild; (3) management restrictions, of the Act. Participation in this recovery species has been unsuitable and protective measures, or other special effort is entirely voluntary and would irreversibly altered or destroyed). With management concerns of that not occasion any substantive change in the experimental population population, which may include but are land use by participants; consequently, designation, the relevant population is not limited to, measures to isolate and/ we anticipate that the benefits of treated as threatened for purposes of or contain the experimental population reintroduction will off-set the costs section 9 of the Act, regardless of the designated in the regulation from incurred for any recovery partners who species’ designation elsewhere in its natural populations; and (4) a process choose to participate. range. Threatened designation allows us for periodic review and evaluation of Background discretion in devising management the success or failure of the release and programs and special regulations for the effect of the release on the Statutory and Regulatory Framework such a population. Section 4(d) of the conservation and recovery of the The black-footed ferret was listed as Act allows us to adopt whatever species. endangered throughout its range on regulations are necessary and advisable Under 50 CFR 17.81(d), the Service March 11, 1967 (32 FR 4001), and again to provide for the conservation of a must consult with appropriate State fish on June 2, 1970 (35 FR 8491), under threatened species. In these situations, and wildlife agencies, local early endangered species legislation and the general regulations that extend most governmental entities, affected Federal was ‘‘grandfathered’’ under the section 9 prohibitions to threatened agencies, and affected private Endangered Species Act of 1973, as species do not apply to that species, and landowners in developing and

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implementing experimental population confer (rather than consult) with the (479 to 600 millimeters) in total length; rules. To the maximum extent Service on actions that are likely to upper body parts are yellowish buff, practicable, section 10(j) rules represent jeopardize the continued existence of a occasionally whitish, feet and tail tip an agreement between the Service, the species proposed to be listed. The are black, and a black ‘‘mask’’ occurs affected State and Federal agencies, and results of a conference are in the form across the eyes (Hillman and Clark persons holding any interest in land of conservation recommendations that 1980, p. 30). which may be affected by the are optional as the agencies carry out, The black-footed ferret depends establishment of an experimental fund, or authorize activities. Because almost exclusively on prairie dogs for population. the NEP is, by definition, not essential food and on prairie dog burrows for Based on the best scientific and to the continued existence of the shelter (Hillman 1968, p. 438; Biggins commercial data available, we must species, the effects of proposed actions 2006, p. 3). Historical habitat of the determine whether the experimental affecting the NEP will generally not rise ferret coincided with the ranges of the population is essential or nonessential to the level of jeopardizing the black-tailed prairie dog (Cynomys to the continued existence of the continued existence of the species. As a ludovicianus), white-tailed prairie dog species. The regulations (50 CFR result, a formal conference will likely (C. leucurus), and Gunnison’s prairie 17.80(b)) state that an experimental never be required for black-footed dog (C. gunnisoni), which collectively population is considered essential if its ferrets established within the NEP area. occupied approximately 100 million ac loss would be likely to appreciably Nonetheless, some agencies voluntarily (40 million ha) of intermountain and reduce the likelihood of survival of that confer with the Service on actions that prairie grasslands extending from species in the wild. All other may affect a proposed species. Activities Canada to Mexico (Anderson et al. 1986, populations are considered that are not carried out, funded, or pp. 25–50; Biggins et al. 1997, p. 420). nonessential. We have determined that authorized by Federal agencies are not This amount of prairie dog habitat could any future experimental populations of subject to provisions or requirements in have supported 500,000 to 1,000,000 black-footed ferrets in Wyoming would section 7. ferrets (Anderson et al. 1986, p. 58). not be essential to the continued On April 10, 2015, the Service Since the late 1800s, ferret specimens existence of the species in the wild. published a proposed rule in the have been collected from Arizona, This determination has been made Federal Register to establish a Colorado, Kansas, Montana, Nebraska, because loss of an experimental nonessential experimental population of New Mexico, North Dakota, Oklahoma, population in Wyoming will not affect black-footed ferrets in Wyoming, and South Dakota, Texas, Utah, and the captive population or the 24 existing announced the availability of a draft Wyoming in the United States and reintroduction sites in Arizona, environmental assessment (EA) in Saskatchewan and Alberta in Canada Colorado, Kansas, Montana, New accordance with the National (Anderson et al. 1986, pp. 25–50). In the Mexico, South Dakota, Utah, and Environmental Policy Act of 1969, as 1990s, we concluded that the ferret’s Wyoming; in Chihuahua, Mexico; and amended (NEPA) (80 FR 19263). This historical range also included Mexico, in Saskatchewan, Canada. Therefore, EA analyzed the potential which is within the contiguous range of loss of an experimental population in environmental impacts associated with the black-tailed prairie dog as Wyoming will not appreciably reduce the proposed reintroduction of ferrets in previously noted (Biggins et al. 1997, p. the likelihood of future survival of the Wyoming. We contacted interested 420). This inclusion of Mexico in the ferret rangewide. parties including Federal and State ferret’s historical range is described in For the purposes of section 7 of the agencies, local governments, scientific more detail in the recovery plan and Act, we treat an NEP as a threatened organizations, interest groups, and resulted in a ferret reintroduction species only when the NEP is located private landowners through a press initiated in 2001 (USFWS 2013a, pp. within a National Wildlife Refuge or release and related fact sheets, and 16–17). This final rule also corrects the unit of the National Park Service. In emails. In addition, we notified the historical range of the species at 50 CFR these areas, the Federal agency public and invited comments through 17.11(h); this action has no regulatory conservation requirements under news releases to local media outlets. impact as this column is strictly section 7(a)(1) and the Federal agency The public comment period for the informational. consultation requirements of section proposed rule and the draft EA closed Black-footed ferrets historically 7(a)(2) of the Act apply. Section 7(a)(1) on June 9, 2015. Prior to the April 10, occurred throughout most of Wyoming. requires all Federal agencies to use their 2015, publication of the proposed rule, Specifically, black-footed ferrets authorities to carry out programs for the we also held a series of informational occurred within black-tailed prairie dog conservation of listed species. Section public meetings across the State in habitat in the eastern portion of the 7(a)(2) requires that Federal agencies, in concert with Wyoming Game and Fish State and white-tailed prairie dog consultation with the Service, ensure Department. habitat in the west; black-footed ferrets that any action authorized, funded, or Section 10(j)(2)(C)(ii) of the Act states did not occur in the extreme northwest carried out is not likely to jeopardize the that critical habitat shall not be corner of the State (Anderson et al. continued existence of a listed species designated for any experimental 1986, p. 48). The last wild population of or adversely modify its critical habitat. population that is determined to be ferrets (from which all surviving black- When NEPs are located outside a nonessential. Accordingly, we cannot footed ferrets descend) was discovered National Wildlife Refuge or National designate critical habitat in areas where near Meeteetse, Wyoming, in 1981, after Park Service unit, then, for the purposes we establish an NEP. the species was presumed extinct (Clark of section 7, we treat the population as et al. 1986, p. 8; Lockhart et al. 2006, proposed for listing and only section Biological Information p. 8). Following disease outbreaks at 7(a)(1) and section 7(a)(4) apply. In The endangered black-footed ferret is Meeteetse, all surviving wild ferrets these instances, NEPs provide the only ferret species native to the were removed from the wild between additional flexibility because Federal Americas (Anderson et al. 1986, p. 24). 1985 and 1987, to initiate a captive- agencies are not required to consult It is a medium-sized mustelid, typically breeding program (Lockhart et al. 2006, with us under section 7(a)(2). Section weighing 1.4 to 2.5 pounds (645 to 1,125 p. 8). No wild populations have been 7(a)(4) requires Federal agencies to grams) and measuring 19 to 24 inches found since the capture of the last

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Meeteetse ferret despite extensive and (USFWS 2013a, Table 8). Shirley Basin boundary of this newly designated NEP intensive rangewide searches; it is is one of four currently successful ferret area and would continue to operate unlikely that any undiscovered wild reintroduction sites—other successful under their respective management populations remain. Therefore, the sites include two in South Dakota and plans. Any new reintroduction sites Service considers the State of Wyoming one in Arizona (USFWS 2013a, p. 73). within this newly designated NEP area unoccupied by wild ferrets, with the We are confident that Wyoming can would require development of a new exception of reintroduced populations, support additional successful management plan approved by the which alleviates the requirement for reintroduction sites, based on the Service. project proponents to conduct presence/ amount of available habitat (see the Several sites in Wyoming are suitable absence surveys for ferrets under section following section on Likelihood of for reintroduction of black-footed ferrets 7 of the Act prior to developing projects Population Establishment and Survival) in addition to the Shirley Basin site. The (USFWS 2013c). and a history of successful ferret main requirements for ferret In 1991, a reintroduced population of management at Shirley Basin since reintroduction are: (1) An area of ferrets was established in Shirley Basin, 1991. Additional viable ferret occupied prairie dog habitat that is Wyoming as an NEP in accordance with populations within Wyoming will aid purposefully managed and of sufficient section 10(j) of the Act. In 2001, the recovery of the species. size to support a viable population of Wolf Creek, Colorado, reintroduction ferrets (a minimum of 1,500 ac (608 ha) site was also established as an NEP Location of the Nonessential of black-tailed prairie dog occupied under section 10(j), and includes a small Experimental Population Area habitat or 3,000 ac (1,215 ha) of white- portion of Sweetwater County, The NEP area for Wyoming is tailed or Gunnison’s prairie dog Wyoming, in the experimental Statewide, with the exception of the two occupied habitat); (2) a willing population area. However, no evidence areas where a NEP designation for landowner; and (3) a management plan of ferrets from the Wolf Creek black-footed ferret already exists (see that addresses sylvatic plague. Recent reintroduction effort has been found in below). In combination, these three estimates of prairie dog occupied habitat Sweetwater County or elsewhere in NEPs collectively cover the entire State in Wyoming include 2,893,487 ac Wyoming. The Shirley Basin NEP of Wyoming. Suitable habitat for ferret (1,171,862 ha) in the white-tailed prairie persists today. The map at the reintroduction will likely be limited to dog range and 229,607 ac (92,991 ha) in conclusion of this rule identifies the Albany, Big Horn, Campbell, Carbon, the black-tailed prairie dog range (Van existing NEPs in Wyoming. Converse, Crook, Fremont, Goshen, Hot Pelt 2013, pp. 8, 14). Luce (2008, pp. Springs, Johnson, Laramie, Lincoln, 28–31) identified several sites in Relationship of the Experimental Natrona, Niobrara, Park, Platte, Wyoming with potential for ferret Population to Recovery Efforts Sheridan, Sublette, Sweetwater, Uinta, reintroduction including one site with All known black-footed ferrets in the Washakie, and Weston Counties because potential for reintroduction within less wild are the result of reintroduction these counties have sufficient prairie than 3 years, 24 sites with potential for efforts. There have been 24 ferret dog habitat to support viable ferret reintroduction within 3 to 10 years, and reintroduction projects, beginning in populations. We are not aware of any two sites with long-term potential for 1991, at Shirley Basin in the prairie dog complexes suitable for ferret reintroduction. southeastern portion of Wyoming. reintroduction on or adjacent to Tribal Shirley Basin contains the only ferret lands in Wyoming. The nearest Likelihood of Population Establishment population currently in Wyoming. potential reintroduction sites to Tribal and Survival The downlisting criteria for the black- lands are two white-tailed prairie dog The Service and its partners have footed ferret include establishing at least complexes––Fifteen-mile Complex near initiated 24 black-footed ferret 1,500 free-ranging breeding adults in 10 Worland in Hot Springs County and reintroduction projects since 1991. or more populations, in at least 6 of 12 Sweetwater Complex near Sweetwater These projects have experienced varying States within the historical range of the Station in Fremont County (Luce 2008, degrees of success. However, all species, with no fewer than 30 breeding pp. 29–30). Both sites are of reintroduction efforts have contributed adult ferrets in any population; delisting intermediate potential for ferret to our understanding of the species’ criteria include establishing at least reintroduction and are located needs. Recovery of the species is a 3,000 free-ranging breeding adults in 30 approximately 19 miles (30 kilometers) dynamic process that requires adaptive or more populations, in at least 9 of 12 from any reservation boundaries. management. States within the historical range of the Any ferrets found in Wyoming would Some transfers of individual black- species, with no fewer than 30 breeding be considered part of an NEP. There are footed ferrets between populations will adults in any population (USFWS many historical records of ferrets in likely be necessary in perpetuity to 2013a, pp. 61–62). In our recovery plan Wyoming (Anderson et al. 1986, pp. 36– maintain genetic diversity in the face of for the ferret, we suggest recovery 37). However, the species has been habitat fragmentation and as a guidelines for the States that are extirpated from the State since 1987, management tool for sylvatic plague proportional to the amount of prairie with the exception of a reintroduced (until additional plague vaccines can be dog habitat historically present. A ferret population in the Shirley Basin. adapted for field use). Nevertheless, we proportional share for Wyoming would As previously noted, a 10(j) designation believe that recovery can be achieved include approximately 171 free-ranging already exists for the Shirley Basin through a combination of expansion of breeding adult ferrets to meet their ferret population in Albany County and ferret populations at existing portion of the rangewide numerical goal portions of Carbon and Natrona reintroduction sites and reintroduction for downlisting and 341 breeding adults Counties that are east of the North Platte of ferrets at new sites, both of which are to meet their portion of the rangewide River. A 10(j) designation also exists for possible if conservation of prairie dog numerical goal for delisting (USFWS the Wolf Creek, Colorado, ferret occupied habitat and disease 2013a, Table 8). reintroduction site, which includes a management are aggressively pursued. Approximately 100 breeding adult small portion of Sweetwater County in Participation by all States within the black-footed ferrets have been Wyoming. Both of these reintroduction historical range of the black-footed ferret established at Shirley Basin, Wyoming sites would remain outside the is important to maximize resilience of

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ferret populations in the wild and to species’ range, beginning in the late term site management before, during, allow for an equitable distribution of the 1800s; (2) poisoning of prairie dogs to and after releases. Partners will collect responsibility for achieving recovery reduce competition with domestic habitat data for site evaluation and goals. Federal, State, and local agencies livestock for forage, beginning in the documentation of baseline conditions in Wyoming have been active early 1900s; and (3) the inadvertent and develop management plans for participants in ferret recovery since the introduction of sylvatic plague, which prairie dogs and plague prior to any last wild population was found at causes mortality to both ferrets and release of black-footed ferrets. All Meeteetse in 1981. We estimate 100 prairie dogs, beginning in the 1930s. applicable laws regulating the breeding adult ferrets are already The combined effects of these three protection of ferrets will be followed established at Shirley Basin. The factors resulted in a rangewide decrease (see section on Management suggested numerical recovery guidelines in the amount of habitat occupied by Considerations and Protective for Wyoming are 171 breeding adults to prairie dogs from approximately 100 Measures, below). Partners will develop support the State’s share of the million ac (40.5 million ha) historically annual site-specific reintroduction plans rangewide downlisting target and 341 to 1.4 million ac (570,000 ha) in the and submit them to the Service by mid- breeding adults to support the State’s 1960s (USFWS 2013a, pp. 23–24). This share of the rangewide delisting target. habitat loss and fragmentation resulted March as part of an annual ferret Meeting their portion of the rangewide in a corresponding decrease in ferrets, allocation process (which allocates numerical goal for downlisting would which require relatively large areas of available captive ferrets for release in require establishing one additional large prairie dog occupied habitat to maintain specific numbers for specific sites). reintroduction site similar to Shirley viable populations. By the 1960s, only Reintroduction plans will include Basin or two to three smaller sites. two remnant ferret populations current estimates of prairie dog numbers Meeting their portion of the rangewide remained—in Mellette County, South and density, disease prevalence and numerical goal for delisting would Dakota, and in Meeteetse, Wyoming management, and proposed require establishing two large sites, six (Lockhart et al. 2006, pp. 7–8). reintroduction and monitoring methods. small sites, or a combination of large, Wyoming has had less rangeland If the reintroduction plan covers years medium, and small sites, in addition to converted to cropland than most other subsequent to the initial releases, it will the sites previously established for States within the historical range of the also include a recent description of the meeting their portion of the rangewide black-footed ferret (U.S. Department of status of ferrets on the site. numerical goal for downlisting. The Agriculture 2005, Table 1). All reintroduction efforts will follow Consequently, prairie dog poisoning and Recovery Plan estimates that 35,000 ac techniques described in Roelle et al. sylvatic plague are likely the two (14,000 ha) of purposefully managed (2006) as appropriate, which presents prairie dog occupied habitat will be primary reasons for extirpation of ferrets recommendations for managing captive needed to meet Wyoming’s portion of from the State. Extensive poisoning of populations, evaluating potential the rangewide habitat goal for prairie dogs had begun in Wyoming by downlisting and 70,000 ac (28,000 ha) to 1916 (Clark 1973, p. 89), and plague was habitat, reestablishing populations, and meet their portion of the rangewide present in Wyoming by 1936 (Eskey and managing disease. Captive-reared black- habitat goal for delisting (USFWS 2013a, Haas 1940, p. 4). Occupied prairie dog footed ferrets exposed to prairie dog Table 8). This equates to purposeful habitat reached a low in Wyoming in burrows and natural prey in outdoor management of approximately 2 percent the early 1960s when approximately preconditioning pens prior to their of prairie dog occupied habitat in 64,336 ac (26,056 ha) were reported release survive in the wild at Wyoming to meet their portion of the (U.S. Bureau of Sport Fisheries and significantly higher rates than cage- rangewide habitat goal for delisting. Wildlife 1961, Table 1). However, large- reared, non-preconditioned ferrets Sustaining black-footed ferret scale poisoning of prairie dogs no longer (Biggins et al. 1998, pp. 651–652; Vargas numbers during periodic outbreaks of occurs, and the use of poisons is more et al. 1998, p. 77). Therefore, all captive- sylvatic plague will require ongoing closely regulated than it was reared ferrets released within the management, potentially including historically. Improved plague Wyoming NEP area will receive dusting prairie dog burrows with flea management, including dusting prairie adequate preconditioning in outdoor control powder and vaccinating ferrets dog burrows with insecticide to control pens at the National Black-footed Ferret prior to release. Additionally, research fleas (the primary vector for plague Conservation Center or at another is currently underway investigating the transmission), is also being used, and facility approved by the Service. We potential for supporting ferrets at the development of vaccines that will vaccinate all ferrets for canine reintroduction sites by providing a prevent plague in prairie dogs and distemper and sylvatic plague, and mark vaccine to wild prairie dogs via oral black-footed ferrets is underway. The them with passive integrated bait. most recent surveys estimate 3,123,094 transponder tags prior to release. We Based upon the past history of ac (1,264,853 ha) of occupied prairie will transport ferrets to the successful management at Shirley Basin, dog habitat in Wyoming (Van Pelt 2013, reintroduction site and release them Wyoming, and the substantial amount of pp. 8, 14). This considerable increase directly from transport cages into prairie prairie dog occupied habitat available over the past 50 years indicates that dog burrows. In conformance with for additional reintroduction of black- there has been a reduction in threats standard ferret reintroduction protocol, footed ferrets, we believe there is a high and improved management of prairie likelihood of population establishment dogs. This increases the likelihood of no fewer than 20 captive-raised or wild- and survival in Wyoming. successful reintroduction of ferrets in translocated ferrets will be released at Wyoming. any reintroduction site in Wyoming Addressing Causes of Extirpation during the first year of the project. The black-footed ferret rangewide Release Procedures Twenty or more additional animals will population declined for three principal The Service will cooperate with other be released annually for the next 2 to 4 reasons: (1) A major conversion of Federal agencies, WGFD, Tribes, years. Released ferrets will be excess to native rangeland to cropland, landowners, and other stakeholders to the needs of the captive-breeding particularly in the eastern portion of the develop, implement, and maintain long- program.

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Donor Stock Assessment and Effects on Therefore, there will be no effects on a self-sustaining population, which will Captive or Wild-Born Donor Populations donor populations beyond those which contribute to the recovery of the species. are intended and accounted for in the Eighteen black-footed ferrets were Management Considerations and management of wild or captive captured from the last wild population Protective Measures populations. at Meeteetse, Wyoming in 1985–1987, We conclude that the effects of and used to initiate a captive-breeding Status of Proposed Population Federal, State, or private actions and program (Lockhart et al. 2006, pp. 11– The effects of using black-footed activities will not pose a substantial 12). Of the 18 captured ferrets, 15 threat to black-footed ferret individuals, representing the genetic ferrets from any captive or wild-born donor populations for releases into the establishment and persistence in equivalent of 7 distinct founders, Wyoming because most activities produced a captive population that is Wyoming NEP area will be examined through our section 10 permitting currently occurring in the NEP area are the foundation of present recovery compatible with ferret recovery and efforts (Garelle et al. 2006, p. 4). Extant authority and section 7 consultation process to ensure that their use is not there is no information to suggest that populations, both captive and future activities would be incompatible reintroduced, descend from these likely to jeopardize the continued existence of the species in the wild. We with ferret recovery. We base this ‘‘founder’’ animals. The purpose of the conclusion on experience at previous captive-breeding program is to provide based this determination on the following: (1) As an NEP, black-footed reintroduction sites, where incidental animals for reintroduction to achieve take associated with otherwise lawful recovery of the species, while ferrets utilized for reintroductions are not essential to the survival of the activities such as ranching and energy maintaining maximum genetic diversity development has been low. Poisoning of in the captive population (USFWS species; (2) The 10(j) rule is expected to result in the creation of additional prairie dogs can occur in prairie dog 2013a, p. 81). habitat and could result in habitat loss Black-footed ferrets used to establish reintroduction areas in Wyoming; (3) Measures to avoid and minimize the or incidental take of ferrets. However, any experimental population in the poisoning within a reintroduction site is Wyoming NEP area will either be incidental take of black-footed ferrets will be implemented within very restricted, occurring only in translocated wild-born kits from another specific instances where protection of self-sustaining reintroduced population reintroduced populations; (4) The 10(j) rule will likely constitute a beneficial residences, resources, or infrastructure (such as Shirley Basin) or come from on participating farm and ranch lands one of six captive-breeding populations effect for the black-tailed and white- tailed prairie dog, as it includes becomes necessary. These currently housed at the U.S. Fish and considerations are planned for in measures to reduce the incidence of Wildlife Service National Black-footed cooperation with participating sylvatic plague, the primary factor Ferret Conservation Center near landowners and stakeholders and responsible for the decline of these two Wellington, Colorado; the Cheyenne documented in site-specific species. This will result in an increase Mountain Zoological Park, Colorado management plans that must be in the reproduction, numbers and Springs, Colorado; the Louisville approved by the Service before ferrets distribution of the black-footed ferret, Zoological Garden, Louisville, are allocated to any reintroduction sites. and therefore not resulting in reducing Kentucky; the Smithsonian Biology Poisoning with the anticoagulant Rozol® appreciably the likelihood of survival Conservation Institute, Front Royal, at current and future reintroduction and recovery. Virginia; the Phoenix Zoo, Phoenix, sites, however, is prohibited by Arizona; or the Toronto Zoo, Toronto, Additional successful reintroductions Environmental Protection Agency label Ontario. of ferrets are necessary for recovery of that governs use of Rozol (USFWS The Service and its partners maintain the species. Once this rule takes effect 2013a, p. 50). Prairie dog control a captive-breeding population of (see DATES, above), any releases of programs may also be necessary at the approximately 280 breeding adult black- ferrets in Wyoming will be part of an boundary between ferret reintroduction footed ferrets in order to provide a NEP because of the need for increased sites and adjacent properties in order to sustainable source of ferrets for management flexibility, which will maintain local support for the reintroduction. The captive-breeding encourage landowner participation and reintroduction. If boundary control is facilities produce approximately 120 to alleviate concerns regarding possible necessary because prairie dogs have 240 juvenile ferrets annually. land use restrictions. encroached onto adjacent properties Approximately 80 juveniles are retained This 10(j) rule is designed to broadly where prairie dogs are not wanted, it is annually at these facilities for future exempt from the section 9 take carefully managed. Lethal control of captive-breeding purposes. The prohibitions any take of black-footed prairie dogs should not be employed at remaining juveniles are allocated ferrets that is incidental to otherwise a level that would reduce prairie dog annually for reintroduction, or lawful activities. We provide this occupied habitat to the extent that the occasionally for research (USFWS exemption because we believe that such viability of any potential ferret 2013a, p. 81). Ferrets selected for incidental take of members of the NEP population is compromised—a reintroduction under this final rule will associated with otherwise lawful minimum of 1,500 ac (608 ha) of black- be genetically redundant to animals activities is necessary and advisable for tailed prairie dog occupied habitat or maintained for captive-breeding. the conservation of the species. 3,000 ac (1,215 ha) of white-tailed or Consequently, any loss of reintroduced This designation is justified because Gunnison’s prairie dog occupied habitat ferrets will not impact the genetic no adverse effects to extant wild or is needed to sustain a viable ferret diversity of the species. Only ferrets that captive black-footed ferret populations population. are surplus to the needs of the captive- will result from release of progeny from The Service will coordinate closely breeding program are used for either a wild or captive donor with WGFD and other partners in the reintroduction into the wild. Therefore, population onto a new reintroduction management of any black-footed ferrets any loss of an experimental population site. We also expect that any in Wyoming that are reintroduced under in the wild will not threaten the reintroduction efforts in Wyoming will section 10(j) authorities. Management of survival of the species as a whole. result in the successful establishment of ferret populations in the Wyoming NEP

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area will be guided by provisions in development, livestock grazing, Management issues related to the site-specific management plans recreation, and timber harvesting, while black-footed ferret Wyoming NEP area developed by partners (WGFD) with protecting the natural, cultural, and that have been considered include: input from any affected landowners and historical resources on those lands. The (a) Incidental Take: The regulations stakeholders such as U.S Animal and BLM manages listed and sensitive implementing the Act define Plant Health Inspection Service, U.S. species under guidance provided in the ‘‘incidental take’’ as take that is Bureau of Land Management (BLM), BLM MS–6840 Manual—Special Status incidental to, and not the purpose of, U.S. Forest Service (USFS), Natural Species Management. The Manual carrying out an otherwise lawful activity Resources Conservation Service, directs BLM to proactively conserve (50 CFR 17.3), such as agricultural Wyoming Department of Agriculture, or species listed under the Act and the activities and other rural development, potentially affected Tribes. The ecosystems upon which they depend, and other activities that are in responsibilities and commitments of the ensure that all actions authorized or accordance with Federal, State, Tribal, participating agencies will be carried out by BLM are in compliance and local laws and regulations. documented in the management plan. with the Act, and cooperate with the Experimental population rules contain As mentioned above, management plans planning and recovery of listed species. specific prohibitions and exceptions must be approved by the Service before The BLM has experience in managing regarding the taking of individual ferrets are allocated to any the black-footed ferret at four animals. Once this 10(j) rule becomes reintroduction sites. reintroduction sites in four States that effective, incidental take of black-footed Management plans will be site- occur at least in part on lands it ferrets within the Wyoming NEP area specific with management strategies manages, including Shirley Basin, will not be prohibited, provided that the based on site-specific characteristics Wyoming, and Wolf Creek, Colorado, take is unintentional and is in (e.g., prairie dog distribution and which includes a small portion of accordance with this 10(j) rule. expansion potential, sylvatic plague Sweetwater County, Wyoming. However, if there is evidence of history, ferret movement barriers) and Therefore, we anticipate appropriate intentional take of this species within land use patterns (e.g., livestock grazing, management by BLM on any future the NEP area that is not authorized by recreational use, mineral development ferret reintroduction sites that include the 10(j) rule, we would refer the matter potential). Management plans are BLM lands. to the appropriate law enforcement tailored to achieve conservation (2) National Forest Management Act entities for investigation. objectives using management strategies of 1976, as amended (16 U.S.C. 1600 et (b) Special handling: In accordance compatible with existing ranch, seq.)—The National Forest Management with 50 CFR 17.21(c)(3), any employee livestock, and mineral extraction Act instructs the USFS to strive to or agent of the Service or of a State operations so that neither lifestyles nor provide for a diversity of plant and wildlife agency may in the course of income potential are negatively affected. animal communities when managing their official duties, handle black-footed We expect that future management national forest lands. The USFS ferrets to aid sick or injured ferrets, or plans under this 10(j) rule will have identifies species listed as endangered to salvage dead ferrets. Employees or many similarities to past plans for other or threatened under the Act, including agents of other Federal, Tribal, or State reintroduction sites. Some examples of the black-footed ferret, as Category 1 agencies would need to acquire the management strategies for Shirley Basin species at risk based on rangewide and necessary permits from the Service for in Wyoming include: (1) Attempting to national imperilment. The USFS has these activities. schedule ferret releases so overlap with experience in managing the black-footed (c) Coordination with landowners and hunting opening weekends does not ferret at one reintroduction site in South land managers: This NEP designation occur; (2) allowing landowners and land Dakota that occurs at least in part on under section 10(j) of the Act was managers the opportunity to USFS lands. Therefore, we anticipate discussed with potentially affected State cooperatively decide the number and appropriate management by the USFS and Federal agencies, Tribes, local distribution of prairie dogs (and on any future ferret reintroduction sites governments, and other stakeholders correspondingly ferrets) that may occur that include USFS lands. within the expected reestablishment on privately owned and leased lands; (3) (3) Wyoming State Law—The area. These agencies, landowners, and annually obtaining landowner approval responsibilities of WGFD are defined in land managers have either indicated of human activity necessary for actions Wyoming Statute section 23–1–103, support for, or no opposition to, the specified in this plan; (4) biannual which instructs the WGFD to provide an establishment of future populations, review of the progress of ongoing adequate and flexible system for the provided an NEP is designated and a activities by all concerned parties. Other control, management, protection, and rule is promulgated to exempt management plans may contain regulation of all Wyoming wildlife. The incidental take from the section 9 take provisions similar to these, although the Statute defines the black-footed ferret as prohibitions. The Service and the specific content and details will vary by a protected animal. The WGFD also WGFD will continue to coordinate to site. defines the ferret as a ‘‘species of ensure local communities are fully Most of the area containing suitable greatest conservation need’’ (Wyoming engaged in any future black-footed ferret release sites with high potential for Game and Fish Department 2010, pp. reintroduction efforts. ferret establishment is managed by the IV–2–10–IV–2–13). This final rule has (d) Public awareness and cooperation: BLM, the USFS, or private landowners, been developed in cooperation with the We informed the general public of the and is currently protected through the State to address any concerns and importance of this reintroduction following mechanisms. initiate additional ferret reintroductions project for the overall recovery of the (1) Federal Land Policy and in Wyoming. The WGFD has black-footed ferret through the proposed Management Act of 1976 (43 U.S.C. successfully managed the ferret at the rule and associated public meetings. We 1701 et seq.)—The BLM’s mission is set Shirley Basin Reintroduction site since notified a comprehensive list of forth under the Federal Land Policy and 1991. Therefore, we anticipate stakeholders of the meetings including Management Act, which mandates that appropriate management by WGFD on affected Federal and State agencies, BLM manage public land resources for any future ferret reintroduction sites in Tribal entities, local governments, a variety of uses, such as energy Wyoming. landowners, nonprofit organizations,

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and other interested parties. The reintroduction opportunities and federally listed, proposed (any species comments we received are listed in the provide greater flexibility in of fish, wildlife, or plant that is final EA, were included in the management of the reintroduced ferret. proposed in the Federal Register to be formulation of alternatives considered The NEP designation is necessary to listed), and candidate (the Service has in the NEPA process, and are secure needed cooperation of the State, concluded that they should be proposed considered in this final rule designating landowners, and other interests in the for listing) species in Wyoming. These an NEP area for reintroduced black- affected area. species are identified in the following footed ferrets in Wyoming. Designation (e) Potential impacts to other federally table. of the NEP area will increase listed species: There are several

TABLE 1—FEDERALLY LISTED, PROPOSED, AND CANDIDATE SPECIES IN WYOMING

Species Current status in Wyoming under the act

Black-footed ferret (Mustela nigripes) ...... Shirley Basin NEP. Gray wolf (Canis lupus) ...... NEP in Wyoming. Whooping crane (Grus americana) ...... Endangered. Interior least tern (Sterna antillarum) ...... Endangered. Piping plover (Charadrius melodus) ...... Threatened. Wyoming toad (Bufo baxteri) ...... Endangered. Bonytail (Gila elegans) ...... Endangered. Colorado pikeminnow (Ptychocheilus lucius) ...... Endangered. Humpback chub (Gila cypha) ...... Endangered. Razorback sucker (Xyrauchen texamus) ...... Endangered. Kendall Warm Springs dace (Rhinichthys osculus thermalis) ...... Endangered. Pallid sturgeon (Scaphirhynchus albus) ...... Endangered. Blowout penstemon (Penstemon haydenii) ...... Endangered. Canada lynx (Lynx canadensis) ...... Threatened, with critical habitat. Grizzly bear (Ursus arctos horribilis) ...... Threatened. Preble’s meadow jumping mouse (Zapus hudsonius preblei) ...... Threatened. Yellow-billed cuckoo (Coccyzus americanus) ...... Threatened, with critical habitat proposed. Colorado butterfly plant (Gaura neomexicana coloradensis) ...... Threatened, with critical habitat. Desert yellowhead (Yermo xanthocephalus) ...... Threatened, with critical habitat. Western prairie fringed orchid (Platanthera praeclara) ...... Threatened. Ute ladies’-tresses (Spiranthes diluvialis) ...... Threatened. Northern long-eared bat (Myotis septentrionalis) ...... Threatened. Greater sage-grouse (Centrocercus urophasianus) ...... Candidate at the time of the proposed 10(j) rule, recently found to be not warranted for listing. Fremont County rockcress (Boechera pusilla) ...... Candidate. Whitebark pine (Pinus albicaulis) ...... Candidate.

Nearly all of the aforementioned requires large expanses of intact habitat, non-targeted species; and (3) there are species have habitat requirements such although it is dependent on prairie dogs, approximately 43,000,000 acres of as forests, dunes, wetlands, or river not sagebrush. However, some prairie estimated greater sage-grouse habitat in systems that differ from the grassland dog habitat, particularly white-tailed Wyoming. To meet delisting guidelines prairie habitat requirements for the prairie dog habitat, contains sagebrush. in the Black-footed Ferret Recovery black-footed ferret. The only species Direct adverse effects to greater sage- Plan, there must be 70,000 acres of that may be affected by reintroduction grouse can occur from the application of prairie dog habitat. Thus, most greater projects for the ferret in the Wyoming zinc phosphide-based pesticides to sage-grouse habitat in Wyoming would NEP area, other than the ferret, is the manage expanding prairie dog colonies not be impacted by the proposed action. greater sage-grouse. At the time of the at reintroduction sites. Because the (f) Monitoring and Evaluation: proposed 10(j) rule, the greater sage- application of zinc phosphide will Monitoring is a required element of all grouse was a candidate species. occur in July through February, greater black-footed ferret reintroduction Recently, the Service determined that sage-grouse (males, hens, and broods) projects. The following types of the greater sage-grouse is no longer may ingest zinc phosphide and become monitoring will be conducted. warranted for listing under the Act (80 sickened or die. We determined that the Reintroduction Effectiveness FR 59858; October 2, 2015). The greater issuance of this Federal rule to Monitoring: Partners will monitor sage-grouse requires large, designate the black-footed ferret as a population demographics and potential interconnected expanses of sagebrush nonessential experimental population in sources of mortality, including plague, (Connelly et al. 2004, p. 3–2; Stiver et the State of Wyoming in accordance annually for 5 years following the last al. 2006, p. I–2; Knick and Connelly with section 10(j) of the Act is not likely release using spotlight surveys, snow 2011, p. 1). Habitat loss, degradation, to jeopardize the continued existence of tracking, other visual survey techniques, and fragmentation are the primary the greater sage-grouse based on the and possibly radio-telemetry of some stressors to the greater sage-grouse. A following: (1) The use of zinc phosphide individuals. Thereafter, demographic detailed description of the species’ is anticipated to be relatively rare at and genetic surveys will be completed natural history, seasonal habitats, reintroduction sites, which minimizes periodically to track population status. threats, and population trends can be exposure risk; (2) zinc phosphide can Surveys will incorporate methods to found in the Service’s recent 12-month only be applied by a certified pesticide monitor breeding success and long-term not warranted finding (80 FR 59858; applicator, which minimizes survival rates. In general, the Service October 2, 2015). The ferret also misapplication and exposure risk to anticipates that monitoring will be

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conducted by the lead for each 29 comment letters addressing the a lead role in recovery for the black- reintroduction site, which in Wyoming proposed rule and several comments footed ferret in Wyoming under this will be the WGFD and participating that were not relevant to the proposed 10(j) rule, likely conducting the actual partners. The WGFD will present rule. All substantive information on-the-ground ferret reintroduction and monitoring results in their annual provided during comment periods has management work. This situation is in reports. either been incorporated directly into no way unprecedented, as on-the- Donor Population Monitoring: Ferrets this final determination or addressed ground reintroduction efforts under used for reintroduction will either be below. 10(j) are often managed by non-Service from the captive-breeding population or groups, including state agencies, non- Peer Review translocated from another viable governmental organizations, and Tribes. reintroduction site. Ferrets in the In accordance with our peer review The Service considers participation by captive-breeding population are policy published on July 1, 1994 (59 FR the WGFD invaluable to this recovery managed and monitored in accordance 34270), we solicited expert opinion effort given their long history with with the Association of Zoos and from three knowledgeable individuals black-footed ferret conservation and Aquariums (AZA) Black-footed Ferret with scientific expertise that included recovery, leadership in successful Species Survival Plan (SSP®). A familiarity with the black-footed ferret reintroductions in Shirley Basin (also breeding population of 280 animals will and its habitat, biological needs, under a 10(j) rule), intimate knowledge be maintained to provide a sustainable recovery efforts, and threats. We of local biological conditions, and source of ferrets for reintroduction. The received responses from all three of the familiarity with local landowners and AZA SSP® Husbandry Manual provides peer reviewers. other stakeholders. up-to-date protocols for the care, We reviewed all comments we This cooperative approach is propagation, preconditioning, and received from the peer reviewers for consistent with our 2013 Memorandum transportation of captive ferrets, and is substantive issues and new information Of Uderstanding (MOU), which used at all participating captive- regarding the establishment of a committed the Service, the State of breeding facilities. Ferrets may also be nonessential experimental population Wyoming, and other Federal partners translocated from other reintroduction designation for black-footed ferret in the (‘‘Parties’’) to work collaboratively to sites (which also originated from captive State of Wyoming. In general, the peer develop and implement the NEP area sources), provided their removal will reviewers stated that the proposed rule designation (WGFD and USFWS 2013). not create adverse impacts upon the provided an accurate summation of the This MOU includes the following donor population and provided best available scientific information on guiding principles, among others: (1) appropriate permits are issued in the biology, current status, and recovery The Parties agree that they will accordance with our regulations (50 efforts for black-footed ferret, and that collaboratively identify, and prioritize, CFR 17.22) prior to their removal. the proposed establishment of an NEP prospective ferret reintroduction sites in Population monitoring will be area in Wyoming to facilitate black- Wyoming outside of the current 10(j) conducted at all donor sites. footed ferret reintroduction is well areas (i.e., Shirley Basin and Wolf Monitoring Impacts to Other Listed supported by the best available Creek); and (2) the Parties agree that Species: We do not expect impacts to scientific information. The peer future reintroductions of the ferret will other federally listed species (see reviewers generally concurred with our be based on mutually affirmed discussion under (e), above). The greater methods and conclusions, and provided prioritization of prospective sage-grouse is the only species with additional information, clarifications, reintroduction sites (WGFD and USFWS habitat that might overlap with the and suggestions to improve the final 2013, pp. 5–6). black-footed ferret. However, we do not rule. Peer reviewer comments are The Service will continue to play an expect ferret reintroduction efforts to addressed in the following summary active role in black-footed ferret adversely impact greater sage-grouse for and incorporated into the final rule as recovery in Wyoming as outlined in the the reasons previously discussed. The appropriate. MOU and through the Service’s WGFD conducts annual monitoring of oversight of the black-footed ferret Peer Reviewer Comments the greater sage-grouse statewide. allocation process. The Service Additional monitoring will occur on (1) Comment: One reviewer and determines, based on reintroduction non-federal lands enrolled in the several commenters were concerned proposals, which reintroduction sites Wyoming Candidate Conservation with the statement in the proposed rule receive captive born ferrets (i.e., kits) for Agreement with Assurances for the that the WGFD would have primary release into the wild. Ferret allocation greater sage-grouse and on Federal lands management responsibilities for ferret decisions made by the Service are based enrolled in the Wyoming Candidate reintroduction in Wyoming. The on the biological and scientific merit of Conservation Agreement for the greater reviewer stated that ‘‘[t]urning primary the proposals, the suitability of sage-grouse. authority for management of a federally proposed reintroduction sites, endangered species over to a state, even management capabilities of Summary of Comments and Responses under 10(j), would be unprecedented as reintroduction programs, In the proposed rule published on far as I can determine’’. comprehensiveness of site work plans, April 10, 2015 (80 FR 19263), we Our Response: The Service will the overall contribution to species requested that all interested parties maintain authority for black-footed recovery each project represents, and submit written comments on the ferrets under the Act until the species is other considerations that may be proposal by June 9, 2015. We also recovered and subsequently delisted. unforeseen. Furthermore, the Service contacted appropriate federal and state That said, as is true for nearly every must be kept apprised of any post agencies, Tribes, scientific experts and endangered species recovery effort, allocation changes in project design, organizations, and other interested recovery is a collaborative effort with direction, management, or field parties and invited them to comment on success depending on the coordination implementation of ferret reintroduction the proposal. and collaboration of a multitude of projects. No ferrets may be translocated, During the public comment period on partners working towards a common relocated, or removed from the wild the proposed rule, we received a total of goal. The WGFD is anticipated to play (except for emergency health concerns)

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without prior Service notification and toward recovery. If importance to and contribute to recovery, which authorization. recovery was equated with essentiality, means the establishment of secure, self- (2) Comment: One peer reviewer no reintroductions would qualify for sustaining populations in the wild. We stated that our determination of nonessential status. This interpretation recognize, however, that reintroductions ‘‘nonessential’’ is misleading and would conflict with Congress’ are, by their nature, experiments whose erroneous, as it is was based on the expectation that ‘‘in most cases, outcome is uncertain. The point we are conclusion that a loss of the proposed experimental populations will not be making with the above statement that NEP in Wyoming will not appreciably essential’’ (H.R. Conference Report No. ‘‘animals lost during reintroduction can reduce the likelihood of future survival 835, supra at 34; USFWS 1984) and our be readily replaced through captive of the ferret rangewide (i.e., at the 23 1984 implementing regulations, which breeding’’ reflects the very real reintroduction sites outside of indicated an essential population will conservation status of the black-footed Wyoming). This reviewer further stated be a special case and not the general ferret; at this time, loss of the captive that ‘‘it is not whether the loss of a rule (USFWS 1984). population could be catastrophic to the future population in Wyoming will (3) Comment: Two reviewers and one species, whereas the reverse is not true. affect the survival of another population commenter expressed concern over the The captive population of ferrets has somewhere else, but whether that reliance of the black-footed ferret been responsible for establishment of population is intended to contribute to recovery program on the captive every wild ferret population in the recovery of the species.’’ Another population. Selection acts on captive existence today, either wholly or peer reviewer and several commenters populations, potentially resulting in primarily. Animals lost at also questioned how all populations in animals adapted for survival in captivity reintroduction sites can be replaced by Wyoming could be designated as and maladapted for life in the wild. reintroduction of captive-bred nonessential despite the anticipated Our Response: We agree that reliance individuals. We expect this trend will future ‘‘essential’’ role of such on captive populations for species continue for the foreseeable future. populations for the recovery of the conservation is never ideal for Specifically, the captive population will species. In other words, some collection numerous reasons, including those remain important until establishment of of reintroduction sites will necessarily noted by the reviewers. Unfortunately, the at least 30 wild populations needed comprise an ‘‘essential’’ part of the there are few alternatives for the black- for recovery is accomplished; both as a future recovered population. footed ferret at this time. Thus, we source of animals for reintroduction and Our Response: We agree with the recognize that it is vitally important for as insurance against stochastic contention that successfully species persistence to expedite the environmental events in wild reintroduced populations under this establishment of reintroduction sites populations (e.g., plague epizootics). 10(j) rule will be a central part of black- and wild populations whenever Conversely, the populations in the footed ferret recovery. This is consistent possible. For this reason, our recovery Wyoming NEP can be established or re- with the Act’s requirements for 10(j) strategy emphasizes the rapid expansion established from the captive population. experimental populations. Specifically, of ferret recovery in the wild (USFWS Thus, until the species is recovered, the the Act requires that experimental 2013a, p. 68). Working in close Service considers the captive populations further the conservation of coordination with the WGFD and other population to be far more important to the species. Conservation is defined by stakeholders, we fully expect the survival of the species in the wild the Act as the use of all methods and establishment of additional wild than the planned Wyoming NEP. procedures which are necessary to bring populations in Wyoming under this Whether the Wyoming NEP is essential any endangered or threatened species to 10(j) rule. An increase in successful to recovery of the species ‘‘in the wild’’ the point at which the measures reintroductions will result in a reduced was discussed in more detail under provided pursuant to the Act are no reliance on the captive population in Comment 2. longer necessary (16 U.S.C. 1532(3)). In the future and allow for translocations (5) Comment: One reviewer suggested short, experimental populations must of wild individuals to more fully that instead of giving reasons why the further the species’ recovery. support recovery efforts. NEP is not ‘‘essential’’ the Service Under the revised Black-footed Ferret (4) Comment: One reviewer stated should indicate its intentions for the Recovery Plan, the species may be that due to a potential for genetic experimental population as follows: downlisted from endangered to adaptation to the captive environment, ‘‘Once the ferret population reaches its threatened when at least 10 ferret the assumption by the Service that delisting goal this 10(j) rule will be populations, each with at least 30 replacing wild animals with captive mooted, as the species will no longer breeding adults, are established. Thus, animals is equivalent to maintaining require protection of the [Act]. The FWS downlisting is based on biological wild populations is biologically and will then enter into post-delisting parameters (e.g., number of breeding legally flawed. The reviewer further monitoring and management agreements adults, number of successful sites). The stated that this assertion should be with Wyoming to ensure adequate recovery plan makes no distinction as to clarified and/or deleted entirely. persistence of and protection for how these populations are designated Our Response: Both in our proposal reintroduced populations of ferrets to once biological criteria are satisfied; and this final rule, we state that animals ensure that ferrets are no longer subject each population will contribute toward lost during reintroduction efforts can be to relisting under the [Act].’’ recovery of the species whether it is readily replaced through captive Our Response: We are required under designated as endangered, essential breeding, which produces juvenile the Act to designate any experimental experimental, or nonessential ferrets in excess of the numbers needed population as either ‘‘essential’’ or experimental. The importance of future to maintain the captive-breeding ‘‘nonessential.’’ Our nonessential reintroduction sites to recovery, population. We do not make the determination is based on the best however, does not mean these assumption that replacement of wild scientific and commercial data available populations are ‘‘essential’’ under animals with captive animals is and thus meets the requirements under section 10(j) of the Act. All equivalent to maintaining wild the Act. This population satisfies all reintroduction efforts are undertaken populations. It is always the Service’s requirements for a 10(j) population and with the primary goal to move a species goal for reintroductions to be successful meets the standards for a nonessential

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population under this section of the Act. wanted. If boundary control becomes on locations of all suitable habitat, nor Although post-delisting management necessary to maintain relations with have any prospective reintroduction agreements are beyond the scope of this neighboring landowners, we support the sites been approved yet for allocation of 10(j) rule, we do anticipate use of zinc phosphide in these captive-bred ferrets. Therefore, we reintroductions authorized by this rule instances. In comparison with Rozol®, believe reporting a specific timeline to advance the conservation of the which has a high risk of secondary would be arbitrary and premature. species and that this progress may poisoning of wildlife, zinc phosphide- Implementation of this Statewide 10(j) contribute to an eventual based pesticides pose fewer risks to rule will significantly reduce the reclassification to threatened or full non-target wildlife when properly administrative burden that would have species recovery and delisting. Prior to applied by a certified pesticide been associated with development of delisting, it is likely we would pursue applicator as required by label. multiple site-specific rules. In this case, management agreements to provide us (7) Comment: One reviewer expressed the WGFD is not precluded from adequate confidence that recovery concern over WGFD management of coordinating simultaneously with progress achieved will be maintained. future reintroductions, noting that multiple landowners and evaluating This is consistent with the Black-footed WGFD has not consistently conducted sites for potential reintroduction. We Ferret Recovery Plan, which calls for the annual monitoring for the Shirley Basin believe under this Statewide 10(j) rule, completion and implementation of a black-footed ferret population. the process for black-footed ferret post-delisting monitoring and Our Response: Long-term wildlife reintroductions in Wyoming will be management plan, in cooperation with management and monitoring programs effectively streamlined. Encouragingly, the states and Tribes, to ensure recovery seldom are able to achieve 100 percent following publication of the proposed goals are maintained (USFWS 2013a, success when it comes to meeting rule in the Federal Register, WGFD has p.6). monitoring goals. Potential reported that a number of landowners (6) Comment: Two reviewers and impediments to meeting monitoring have approached them expressing several commenters were concerned goals include such things as changing interest in establishing a ferret about the potential use of anticoagulant staff workloads and turnover, budget population on their land following poisons like Rozol® to control prairie, limitations, inclement weather, and implementation of the 10(j) rule. dogs due to the potential for secondary equipment failures, among many others. (9) Comment: One reviewer and toxicities to predators like black-footed Overall, we believe that during the last several commenters wanted greater ferrets. While they recognized that 20 years, WGFD has demonstrated a detail on specific reintroduction and details on anticoagulant poison use may meaningful commitment to black-footed sylvatic plague management plans. be more appropriately addressed in site- ferret conservation in Shirley Basin Our Response: Many of the specific specific plans, they thought a through data reporting, multiple questions raised in the comments are framework for how the Service intends scientific publications on the black- answered under Release Procedures, to approach this issue needed to be set footed ferret, plague management, and above. Development of management out in this rule. the release of over 500 ferrets into the plans for reintroductions and sylvatic Our Response: Anticoagulant poisons area. Therefore, we are confident in plague are a cooperative effort between can result in secondary impacts to any their ability to manage future the Service, WGFD, other federal wildlife that consumes a poisoned reintroduction efforts in Wyoming. agencies, landowners, and affected prairie dog. In 2012, the Service (8) Comment: One reviewer and stakeholders. Final plans must be completed formal consultation with the several commenters requested we approved by the Service as part of the Environmental Protection Agency (EPA) provide a specific timeline for ferret allocation process. Ferret to evaluate potential impacts to completion of the identification and allocation decisions are based on the endangered and threatened species, evaluation of reintroduction sites. considerations mentioned in our including the black-footed ferret, from Our Response: Stakeholders in response to Comment 1. We expect that the use of the anticoagulant Rozol® to Wyoming essentially viewed the future site-specific management plans poison prairie dogs. Label restrictions implementation of a Statewide 10(j) rule will have many similarities to past plans resulting from this process prohibit as a prerequisite to participation in any for other reintroduction sites. application of Rozol® within current ferret recovery actions in the State of (10) Comment: One reviewer and and future ferret recovery sites. It is a Wyoming. Thus, implementation of this several commenters wondered if the violation of Federal law to use a rule is only a first step in advancing public would have an opportunity to pesticide in a manner inconsistent with black-footed ferret recovery in comment on potential reintroduction its labeling. Wyoming. Under the 2013 MOU guiding sites in the future. The Service would have no additional principles, the WGFD and the Service Our Response: There is no formal section 7 consultation role regarding the will collaboratively identify and public comment period for potential use of Rozol® at reintroduction sites in prioritize prospective reintroduction reintroduction sites or site-specific Wyoming, except in National Parks and sites in the Wyoming NEP area. The management plans, but there will be National Wildlife Refuges. However, steps that must be taken before a site opportunities for public involvement. through the allocation process of can receive ferrets are substantial and The Service and the WGFD recognize providing captive ferrets to calculated with the goal of selecting that local involvement is important to reintroduction sites, we determine sites with the best potential of success. the success of recovery efforts and the which sites will receive ferrets. We do Steps include, but are not limited to: (1) long-term conservation of the black- not support the use of Rozol® or other Identification of interested and willing footed ferret in Wyoming. Consequently, anticoagulants for control of prairie landowners; (2) biological evaluation of as required in the 2013 MOU, the dogs, particularly at black-footed ferret each site’s potential to support at least Service and WGFD will coordinate to reintroduction sites. Boundary control 30 ferrets; and (3) creation of site- ensure local communities, including of prairie dogs at reintroduction sites is specific management plans (see potentially affected landowners, sometimes necessary because prairie Location of the Nonessential stakeholder groups, local governments, dogs have encroached onto adjacent Experimental Population Area). At this and Tribes are fully engaged in any properties where prairie dogs are not time we do not have precise information future black-footed ferret reintroduction

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efforts. Future management plans may The reviewers are correct that the value black-footed ferret, but noted that the contain provisions similar to the for Shirley Basin is an estimate derived management of plague only ‘‘during following, although the specific content from surveys conducted in 2010. A periodic outbreaks of sylvatic plague’’ and details will vary by reintroduction more recent report gives the same understates the problem. Recent site. Public involvement may include estimate of approximately 100 breeding research has shown that plague has but is not limited to the following: (1) adults in Shirley Basin based on the serious negative effects on prairie dog Public meetings to outreach to all 2010 survey and approximately 295 populations not only during major interested parties on determining breeding adults rangewide (Black-footed ‘‘outbreaks’’ but also when present at potential reintroduction sites; (2) ferret Recovery and Implementation lower levels. Coordination with all interested parties Team Conservation Subcommittee Our Response: Currently, after a reintroduction site is determined; Report 2014, Table 1). The current management for sylvatic plague is (3) Direct involvement of management Shirley Basin estimate is based on the carried out largely by dusting the plan development which could include best available science and is meant to impacted area with pesticides meant to state and federal agencies, County provide the most accurate assessment of kill the fleas that host the plague Commissioners, landowners, the magnitude of the population size bacteria. This type of management can companies, academia, and other rather than the precise number of be effective. We agree, however, that stakeholders, and tribes; (4) Allowing individuals, which can fluctuate this approach is not ideal, as it is landowners and land managers the considerably for the reasons given typically only applied after plague has opportunity to cooperatively decide the above. been detected, which is often too late, number and distribution of prairie dogs (12) Comment: One reviewer as mortality of ferrets and prairie dogs (and correspondingly black-footed questioned the meaning of the phrase has already been significant. A new oral ferrets) that may occur on privately ‘‘occupied prairie dog habitat,’’ noting vaccine, currently being field tested, owned and leased lands; (5) Annually that one could ask ‘‘occupied by what?’’ could provide a more effective, less obtaining landowner approval of human Our Response: When we use the expensive way to protect prairie dogs. activity necessary for actions specified phrase ‘‘occupied prairie dog habitat,’’ The Service recognizes that in a plan; (6) Biannual review of the we mean areas that are occupied by understanding how to control or progress of ongoing activities by all prairie dogs. A review of the scientific preferably eradicate sylvatic plague is concerned parties; (7) Direct literature on prairie dogs shows both critical to black-footed ferret involvement any interested parties in ‘‘occupied prairie dog habitat’’ and conservation. The complex dynamics of monitoring activities on reintroduction ‘‘prairie dog occupied habitat’’ are sylvatic plague are not fully understood. sites. commonly used terms to indicate As scientific knowledge of sylvatic (11) Comment: Two reviewers habitat that is occupied by prairie dogs. plague advances, that information will questioned whether the estimates for the While we agree with the comment in be incorporated into management plans number of black-footed ferrets currently general as prairie dog colonies can and that address sylvatic plague. Although in the wild were the most current typically are ‘‘occupied’’ by a number of research projects are not required estimates available. other species, in this case we believe, program elements for ferret allocations Our Response: As is true for many however, it is clear by the context that to reintroduction sites, the Service species, and particularly with one that what is being referenced in this rule is encourages, supports, and may give is largely fossorial (i.e., lives mostly occupancy by prairie dogs. greater priority to projects that underground) and nocturnal like the (13) Comment: One reviewer incorporate research elements black-footed ferret, determining precise questioned the criteria for evaluating addressing specific ferret recovery population numbers is challenging. potential reintroduction sites. The problems or questions. Black-footed ferret populations are reviewer stated that occupancy of (15) Comment: One reviewer wanted difficult to count due to their remote habitat by prairie dogs is a simplistic to see affirmation that the Wind River locations, difficult accessibility, criterion considering prairie dog Tribes concur with the application of nocturnal habits, small population sizes, populations can fluctuate significantly 10(j) to tribal lands within the Wind and logistical problems and costs over time, expanding and contracting River Indian Reservation. The reviewer associated with the requisite field work. for a number of reasons, including stated that Tribes may have an interest More importantly, ferret populations plague. in maintaining full protection for ferrets can also fluctuate significantly from one Our Response: Determining within their boundaries. year to the next depending on the occupancy by prairie dogs is simply a Our Response: We contacted the presence or absence of plague and active first step in determining the potential Eastern Shoshone and Northern plague management, or due to other for reintroduction site. A large number Arapaho Tribes of the Wind River environmental factors like drought. of other factors are considered for Indian Reservation and invited them to Accordingly, a tally of adult ferret determining the suitability of proposed comment on the proposal. We did not numbers at any one point in time is reintroduction sites. Foremost in receive comments from either Tribe. It likely a poor indicator of recovery consideration for prioritizing black- is unlikely that these two Tribes have progress. We view ferret population footed ferret allocations (i.e., young adequate prairie dog occupied habitat estimates at most sites as minimum ferrets available for release into the that would be suitable for a future numbers because of the aforementioned wild) is the size, density, health, and reintroduction of the black-footed ferret. issues. overall stability of potential ferret This does not preclude coordination We stated in the EA and proposed habitat. Additional non-biological with the Tribes in the future if rule that there are approximately 418 requirements for ferret allocations circumstances change. breeding adult ferrets in the wild, include a willing landowner and a including approximately 102 breeding management plan that addresses Comments From the State of Wyoming adults in the reintroduced population at sylvatic plague. (16) Comment: The State of Wyoming Shirley Basin, Wyoming, as was (14) Comment: One reviewer agreed and several commenters were concerned reported in the 2013 Black-footed Ferret with our identification of plague as a that the Service could change the NEP Recovery Plan (USFWS 2013a, Table 2). major impediment to the recovery of designation to experimental essential,

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endangered, or threatened in the future. working together to accomplish a prior to publication of a final rule to The Service should clarify under what common goal. In most cases, and change or abandon the NEP designation. conditions a change in designation particularly for ferrets, recovery would (17) Comment: The State of Wyoming could occur. not be possible without substantial and several commenters requested that Our Response: We do not foresee the partner efforts. In looking back on ferret the Service provide assurance that if the need to change the NEP designation for recovery over the last 25 years, we have 10(j) designation changed in any any reintroduced black-footed ferret gone from no ferret populations known respect, the Service would remove the population. One of the benefits of an in the wild to having 24 ferret ferrets. NEP designation is that it provides reintroduction sites in the wild, with 17 Our Response: Under 50 CFR flexibility in the regulatory of those sites continuing to have ferrets 17.84(g)(12), the following will apply to requirements in the area where the through 2015. Hundreds of partners any reintroduced ferret populations reintroduction occurs. This regulatory have made this possible. We believe under this 10(j) rule: relief is important because, prior to these are not trivial accomplishments. ‘‘We will not include a reevaluation of the reintroduction, these sites had no At nearly all the 24 ferret reintroduction ‘‘nonessential experimental’’ designation for regulation related to the subject species sites, it is our partners who accomplish these populations during our review of the because the species was not present. the actual on-the-ground ferret initial five year reintroduction program. We Thus, State, tribal, and private reintroduction and management work. do not foresee any likely situation justifying landowners typically resist endangered The same will be true in this case, with alteration of the nonessential experimental species reintroductions that bring with WGFD taking the lead on status of these populations. Should any such them new Federal regulation. This implementation of reintroductions. alteration prove necessary and it results in a resistance can be nearly substantial modification to black-footed ferret Absent those partnerships, there would management on non-Federal lands, any insurmountable. Fewer black-footed be far fewer reintroductions and likely ferret reintroductions would have been private landowner who consented to the no ferrets in Wyoming. Accordingly, the introduction of black footed ferrets on their initiated during the past 20 years Service highly values those local lands may rescind their consent, and at their without the added flexibility of partnerships that accomplish ferret request, we will relocate the ferrets pursuant nonessential experimental designations. recovery and is understandably cautious to paragraph (g)(4)(iii) of this section.’’ To date, 11 black-footed ferret about undertaking actions that disrupt reintroductions have occurred through (18) Comment: The State of Wyoming those partnerships. requested assurance from the Service use of section 10(j) designated NEP In 2009, the Service received a areas in the United States, including in that there will be thorough and petition to reclassify three reintroduced the Shirley Basin in Wyoming (USFWS appropriate consultation before any black-footed ferret populations from 2013a, pp. 38–39). We do not believe ferrets are brought into Wyoming under nonessential experimental to ferrets would likely exist today in this rule. endangered, including the Shirley Basin Wyoming if not for their nonessential Our Response: We fully expect that all NEP in Wyoming. This petition was experimental designation in Shirley reintroductions efforts under this 10(j) submitted pursuant to section 553 of the Basin and the resulting reduced rule will be conducted in close Administrative Procedure Act (5 U.S.C. regulatory burden. coordination with the WGFD, All determinations on essentiality are 553) (WildEarth Guardians et al. 2009). landowners, and affected stakeholders. made prior to any reintroduction action The Service strongly believed and This coordination will take place under being taken. It is instructive that continues to believe that the previsions in the 2013 MOU and as part Congress did not put requirements in ramifications of such an action would of the ferret allocation process. be detrimental to ferrets at these sites section 10(j) to reevaluate the Public Comments classification after a reintroduction has and the partnerships that sustain them. occurred. While our regulations require As we anticipated, the petition had (19) Comment: Two commenters a ‘‘periodic review and evaluation of the immediate negative impacts to ferret stated that the Service’s current prairie success or failure of the release and the recovery, prompting landowners to dog range estimate is not based on the effect of the release on the conservation withdraw support for another planned best available science and information. and recovery of the species’’ (50 CFR reintroduction in Wyoming. The Service Specifically the commenters point out 17.81(c)(4)), this has not been denied the petition in 2010 (USFWS that the Service claims there to be interpreted as requiring reevaluation 2010). nearly 3.1 million acres of prairie dog and reconsideration of sites’ As mentioned above, we do not occupied habitat in Wyoming, but nonessential experimental status foresee the need to change the NEP previously (in USFWS 2009) has stated (USFWS 1991, 1994, and 1996). We designation for any wild black-footed that the prairie dog occupies 2.4 million believe Congressional intent was to ferret population. The captive acres across its entire range. ensure that our partners could rely upon population is crucial to survival of the Our Response: It is important to the original rules promulgated for the species in the wild at this time, and clarify that the 2.4 million acres of reintroduction effort. We also contend likely for the foreseeable future. occupied habitat estimated in USFWS that retracting the nonessential However, a substantial loss of the 2009 is a rangewide estimate for black- experimental designation following captive population is highly tailed prairie dogs (one of four species implementation of this 10(j) rule would improbable, as captive ferrets have been of prairie dog) only. Our estimate in the be extremely detrimental to ferrets in purposefully dispersed among six proposed rule and above of the amount Wyoming and the partnerships that facilities, protecting the species from a of prairie dog occupied habitat in sustain them. Furthermore, such an single catastrophic event. In any Wyoming includes estimates for both alteration of the regulatory framework circumstance, any change in the 10(j) species of prairie dog that occur in post-reintroduction would undermine listing would require a new proposed Wyoming. We cite recent estimates of future reintroduction efforts. rule, a public comment period prairie dog occupied habitat in Typically, endangered species (including, if requested, public Wyoming at 2,893,487 ac (1,171,862 ha) recovery efforts, including those for hearings), public meetings, NEPA in the white-tailed prairie dog range and ferrets, depend on a myriad of partners compliance, and other documentation 229,607 ac (92,991 ha) in the black-

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tailed prairie dog range (Van Pelt 2013, (14,000 ha) of purposefully managed Summary of Changes From Proposed pp. 8, 14). Black-tailed prairie dogs have prairie dog occupied habitat will be Rule a much smaller estimated range in the needed to meet Wyoming’s portion of State of Wyoming while the estimated the rangewide habitat goal for In our proposed rule, the language white-tailed prairie dog habitat in downlisting and 70,000 ac (28,000 ha) to under paragraph (g)(9)(viii) stated that Wyoming is much larger. The combined meet their portion of the rangewide ‘‘Any black-footed ferret found within estimate for both species of prairie dog habitat goal for delisting (USFWS 2013a, the Wyoming Experimental Population in Wyoming is based on the best Table 8). For the State of Wyoming, this Area will be considered part of the available scientific information. equates to purposeful management of nonessential experimental population (20) Comment: Two commenters approximately 2 percent of the after the first breeding season following noted that aerial surveys overestimate estimated prairie dog habitat in the first year of black-footed ferret occupied prairie dog habitat by as much Wyoming to meet their portion of the release. A black-footed ferret occurring as 94 percent (Sidle et al. 2012). One rangewide habitat goals for delisting. outside of the State of Wyoming would commenter stated that if the estimate of The best available science supports our initially be considered as endangered, prairie dog habitat is inaccurate then the estimates of occupied prairie dog habitat but may be captured for genetic testing.’’ area to which black-footed ferrets may and potentially suitable habitat for As noted by one reviewer, this be introduced is exaggerated. The black-footed ferret reintroductions. language was included in earlier 10(j) commenter also alleged that the Service (21) Comment: Several commenters rules at a time when the discovery of has used inaccurate data to formulate were concerned with potential impacts other extant wild ferret populations was population goals of both the black- of black-footed ferret reintroductions on still considered plausible. There have footed ferret and black tailed prairie federal oil and gas lessees. They been no verified reports of any extant dogs. asserted that because federal oil and gas black-footed ferret individuals or Our Response: We acknowledge that leases are interests in real property, the populations in any prairie dog complex aerial surveys can overestimate the holder of a federal oil and gas lease is since the discovery of the last known extent of active or occupied prairie dog no different than a private surface wild black-footed ferret population near habitat and that there is some degree of owner. Meeteetse, Wyoming, in 1981. Recently, error attached to any such estimate. Our Response: We concluded in the the Service issued a ‘block clearance’ Overestimates of prairie dog colonies proposed rule and the EA that the most letter for the ferret in the State of result because observers may have prevalent land use activities, including Wyoming (Service 2013c). Block difficulty distinguishing active, energy development, currently clearance provides an acknowledgement occupied burrows from unoccupied occurring in the NEP area are that the likelihood of identifying ferrets burrows from the air. Researchers compatible with ferret recovery and that in Wyoming, outside of those resulting continue working to refine methods for from reintroductions, is distinctly accurately assessing active prairie dog there is no information to suggest that minimal. Our revision of paragraph populations from the air. future activities would be incompatible (g)(9)(viii) reflects this determination. It is important to note, however, that with ferret recovery. Federal oil and gas in the case of black-footed ferret leases will certainly be considered and Thus, once this 10(j) rule becomes reintroductions, aerial surveys are used lessees likely consulted during effective, any black-footed ferret found only as a rough guide for identifying development of reintroduction within the Wyoming NEP Experimental potential black-footed ferret habitat for proposals for the ferret allocation Population Area will be considered part reintroductions. Measurable process. Current and future land of the nonessential experimental fluctuations in prairie dog occupancy management, principal land uses, and population. A black-footed ferret that are a part of the natural dynamics of potential for change or land disperses beyond the boundaries of the prairie dog populations, but fluctuations management conflicts are serious nonessential experimental population can be especially pronounced in areas considerations for all potential takes on the status of that area experiencing plague or subjected to reintroduction sites. Reintroduction (endangered, unless within another poisoning. The presence of unoccupied allocation decisions are made based on nonessential experimental population burrows conclusively indicates that a potential reintroduction site’s area). prairie dogs occupied the area sometime probability for long-term success. We Finding in the recent past. Thus, while we may have little interest in allocating ferrets, use aerial surveys as rough estimate of an exceptionally limited resource, to We followed the procedures required prairie dog habitat, we do not rely on areas where land management conflicts by the Act, NEPA, and the aerial surveys to identify areas with the will be an obvious problem, either Administrative Procedure Act during highest biological potential for black- currently or in the future. this Federal rulemaking process. We footed ferret reintroductions. (22) Comment: One commenter stated solicited public comment on the Reintroduction sites are chosen instead that black-footed ferrets are believed to proposed NEP designation. We have based on a number of other factors be predators of sage-grouse nests and considered all comments we received including the size, density, health, and therefore will have negative impacts on on the proposed rule and the draft EA overall stability of the prairie dog sage-grouse. before making this final determination. occupied habitat, information that is Our Response: Based on our extensive Based on the above information, and gathered from ground surveys and local experience with both species in the wild using the best scientific and commercial knowledge of prairie dog colonies in a and our review of the scientific data available (in accordance with 50 given area. literature, we are not aware of any CFR 17.81), we find that establishing States are encouraged to contribute to evidence that black-footed ferrets are this Wyoming NEP area will further recovery goals in proportion to the predators on sage-grouse at any life conservation of the species, but that any amount of historical ferret habitat (i.e., stage, including nests (eggs), adults, or future experimental populations of prairie dog colonies) that once occurred chicks. Black-footed ferrets depend black-footed ferrets in Wyoming would on these lands. The Black-footed Ferret almost exclusively on prairie dogs for not be essential to the continued Recovery Plan estimates that 35,000 ac food. existence of the species in the wild.

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Therefore, we are finalizing our have a significant economic impact on hiking, hunting, vehicle use of roads proposal to designate most of Wyoming a substantial number of small entities. and highways, and other activities in (the remainder of the State of Wyoming The SBREFA amended the Regulatory the NEP area that are in accordance with not covered under past NEPs) as an NEP Flexibility Act to require Federal Federal, Tribal, State, and local laws area under section 10(j) of Act. The agencies to provide a statement of the and regulations. Intentional take for result of this designation and the two factual basis for certifying that a rule purposes other than authorized data previous designations is that all black- will not have a significant economic collection or recovery purposes would footed ferrets found within the entire impact on a substantial number of small not be permitted. Intentional take for State of Wyoming are considered as an entities. We certify that this rule will research or recovery purposes would NEP. Black-footed ferrets will be not have a significant economic effect require a section 10(a)(1)(A) recovery managed under the associated NEP on a substantial number of small permit under the Act. regulations, allowing greater entities. The following discussion The principal activities on private management flexibility. We anticipate explains our rationale. property in the NEP area are livestock this will encourage partners to The area that will be affected by this grazing and associated ranch undertake new reintroductions, rule includes release sites in Wyoming management practices (e.g., fencing, advancing the conservation and and adjacent areas in Wyoming into weed treatments). We believe the recovery of the species. which black-footed ferrets may disperse. presence of the black-footed ferret Because of the regulatory flexibility for would not affect the use of lands for Required Determinations Federal agency actions provided by the these purposes because there would be Regulatory Planning and Review NEP designation and the exemption for no new or additional economic or (Executive Orders 12866 and 13563) incidental take in the 10(j) rule, we do regulatory restrictions imposed upon not expect this rule to have significant states, non-federal entities, or members Executive Order 12866 provides that effects on any activities within Federal, of the public due to the presence of the the Office of Information and Regulatory State, or private lands within the NEP. black-footed ferret, and federal agencies Affairs (OIRA) will review all significant When NEPs are located outside a would only have to comply with rules. The Office of Information and National Wildlife Refuge or National sections 7(a)(1) and 7(a)(4) of the Act in Regulatory Affairs has determined that Park Service unit, then, for the purposes these areas. Therefore, this rulemaking this rule is not significant. of section 7, we treat the population as is not expected to have any significant Executive Order 13563 reaffirms the proposed for listing and only section adverse impacts to activities on private principles of E.O. 12866 while calling 7(a)(1) and section 7(a)(4) apply. In lands within the NEP area. for improvements in the nation’s these instances, NEPs provide regulatory system to promote additional flexibility because Federal Unfunded Mandates Reform Act (2 predictability, to reduce uncertainty, agencies are not required to consult U.S.C. 1501 et seq.) and to use the best, most innovative, with us under section 7(a)(2). Section In accordance with the Unfunded and least burdensome tools for 7(a)(4) requires Federal agencies to Mandates Reform Act (2 U.S.C. 1501 et achieving regulatory ends. The confer (rather than consult) with the seq.): executive order directs agencies to Service on actions that are likely to (1) This rule will not ‘‘significantly or consider regulatory approaches that jeopardize the continued existence of a uniquely’’ affect small governments. We reduce burdens and maintain flexibility species proposed to be listed. However, have determined and certify pursuant to and freedom of choice for the public because the NEP is, by definition, not the Unfunded Mandates Reform Act, 2 where these approaches are relevant, essential to the survival of the species, U.S.C. 1502 et seq., that this rulemaking feasible, and consistent with regulatory conferring will likely never be required will not impose a cost of $100 million objectives. E.O. 13563 emphasizes for the black-footed ferret populations or more in any given year on local or further that regulations must be based within the NEP area. Furthermore, the state governments or private entities. A on the best available science and that results of a conference are advisory in Small Government Agency Plan is not the rulemaking process must allow for nature and do not restrict agencies from required. Small governments will not be public participation and an open carrying out, funding, or authorizing affected because the NEP designation exchange of ideas. We have developed activities. In addition, section 7(a)(1) does not place additional requirements this rule in a manner consistent with requires Federal agencies to use their on any city, county, or other local these requirements. authorities to carry out programs to municipalities. Regulatory Flexibility Act (5 U.S.C. 601 further the conservation of listed (2) This rule will not produce a et seq.) species, which would apply on any Federal mandate of $100 million or lands within the NEP area. As a result, greater in any year (i.e., it is not a Under the Regulatory Flexibility Act and in accordance with these ‘‘significant regulatory action’’ under (as amended by the Small Business regulations, some modifications to the Unfunded Mandates Reform Act). Regulatory Enforcement Fairness Act proposed Federal actions within the This NEP designation for the black- (SBREFA) of 1996; 5 U.S.C. 801 et seq.), NEP area may occur to benefit the black- footed ferret will not impose any whenever a Federal agency is required footed ferret, but we do not expect additional management or protection to publish a notice of rulemaking for projects to be halted or substantially requirements on the States or other any proposed or final rule, it must modified as a result of these regulations. entities. prepare, and make available for public This 10(j) rule will broadly authorize comment, a regulatory flexibility incidental take of the black-footed ferret Takings (E.O. 12630) analysis that describes the effect of the within the NEP area. The regulations In accordance with Executive Order rule on small entities (i.e., small implementing the Act define 12630, this final rule does not have businesses, small organizations, and ‘‘incidental take’’ as take that is significant takings implications. This small government jurisdictions). incidental to, and not the purpose of, rule allows for the take of reintroduced However, no regulatory flexibility the carrying out of an otherwise lawful black-footed ferret when such take is analysis is required if the head of an activity such as, agricultural activities incidental to an otherwise legal activity, agency certifies that the rule will not and other rural development, camping, such as recreation (e.g., hiking, hunting,

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fishing, bird watching), forestry, Paperwork Reduction Act and subsequently dispersed onto Tribal agriculture, and other activities that are Office of Management and Budget lands, the aforementioned authorities in accordance with Federal, State, and (OMB) regulations at 5 CFR 1320, which will provide a more relaxed regulatory local laws and regulations. Therefore, implement provisions of the Paperwork situation under the Act through we do not believe that establishment of Reduction Act of 1995 (44 U.S.C. 3501 allowances for incidental take. this NEP will conflict with existing or et seq.), require that Federal agencies However, as stated previously, we are not aware of any prairie dog complexes proposed human activities or hinder obtain OMB approval before collecting suitable for ferret reintroduction on or public use of ferret habitat in Wyoming. information from the public. This final adjacent to Tribal lands. The nearest A takings implication assessment is rule does not include any new potential reintroduction sites are two not required because this rule: (1) Will collections of information that require white-tailed prairie dog complexes— not effectively compel a property owner OMB approval under the Paperwork Fifteen-mile Complex near Worland in to suffer a physical invasion of property, Reduction Act. OMB has approved our Hot Springs County, and Sweetwater and (2) will not deny any economically collection of information associated Complex near Sweetwater Station in beneficial or productive use of the land with reporting the taking of Fremont County (Luce 2008, pp. 29–30). or aquatic resources. This rule will experimental populations (50 CFR Both sites are of intermediate potential substantially advance a legitimate 17.84) and assigned OMB Control public interest (conservation and for ferret reintroduction and are located Number 1018–0095, which expires on approximately 19 miles (30 kilometers) recovery of a listed species) and will not October 31, 2017. We may not conduct present a barrier to all reasonable and from reservation boundaries. We sent or sponsor and a person is not required letters, describing our proposed action expected beneficial use of private to respond to a collection of information property. and requesting input, to the Northern unless it displays a currently valid OMB Arapaho and Eastern Shoshone Tribes Federalism (E.O. 13132) control number. of the Wind River Reservation on In accordance with Executive Order National Environmental Policy Act September 4, 2014. We did not receive a response from either Tribe. 13132 (70 FR 23775), we have In compliance with all provisions of considered whether this final rule has the National Environmental Policy Act Energy Supply, Distribution, or Use significant Federalism effects and have of 1969 (NEPA; 42 U.S.C. 4321 et seq.), (E.O. 13211) determined that a federalism summary we have analyzed the impact of this Executive Order 13211 requires impact statement is not required. This rule. Based on this analysis and agencies to prepare Statements of rule will not have substantial direct information resulting from public Energy Effects when undertaking certain effects on the states, on the relationship comment on the proposed action, we actions. This rule is not expected to between the Federal government and determined that this action will not significantly affect energy supplies, the states, or on the distribution of have significant impacts or effects. We distribution, or use. Therefore, this power and responsibilities among the have prepared a final EA and finding of action is not a significant energy action, various levels of government. In keeping no significant impact on this action, and no Statement of Energy Effects is with Department of the Interior policy, which are available for public required. we requested information from and inspection: (1) In person at the coordinated development of this final Wyoming Ecological Services Field References Cited rule with the affected resource agencies Office (see ADDRESSES) and (2) online at A complete list of all references cited in Wyoming. Achieving the recovery http://www.regulations.gov. All in this rule is available on the Internet goals for this species will contribute to appropriate NEPA documents were at http://www.regulations.gov at Docket its eventual delisting and return to state finalized before this rule was finalized. No. FWS–R6–ES–2015–0013, or upon management. No intrusion on state request from the Wyoming Ecological Government-to-Government policy or administration is expected, Services Field Office (see ADDRESSES). roles or responsibilities of Federal or Relationship With Tribes Authors State governments will not change, and In accordance with the presidential fiscal capacity will not be substantially memorandum of April 29, 1994, The authors of this final rule are staff directly affected. The final 10(j) rule ‘‘Government-to-Government Relations members of the Wyoming Ecological operates to maintain the existing with Native American Tribal Services Field Office (see ADDRESSES). relationship between the State and the Governments’’ (59 FR 229511), List of Subjects in 50 CFR Part 17 Federal governments and is being Executive Order 13175 (65 FR 67249), undertaken in coordination with the and the Department of the Interior Endangered and threatened species, State of Wyoming. We have cooperated Manual Chapter 512 DM 2, we have Exports, Imports, Reporting and with WGFD in the preparation of this considered possible effects on federally recordkeeping requirements, final rule. Therefore, this final rule does recognized Indian Tribes and have Transportation. not have significant Federalism effects determined that Tribal lands overlap the Regulation Promulgation or implications to warrant the Wyoming NEP in portions of Fremont Accordingly, we hereby amend part preparation of a federalism summary and Hot Springs Counties. However, 17, subchapter B of chapter I, title 50 of impact statement pursuant to the participation in black-footed ferret the Code of Federal Regulations, as set provisions of Executive Order 13132. recovery is entirely voluntary. If suitable forth below: habitat for ferret recovery is available, Civil Justice Reform (E.O. 12988) non-Federal landowners, including PART 17—[AMENDED] In accordance with Executive Order Tribes, may choose to either not 12988, the Office of the Solicitor has participate, or to participate through ■ 1. The authority citation for part 17 determined that this rule does not authorities under 10(j), 10(a)(1)(A), or continues to read as follows: unduly burden the judicial system and the Safe Harbor Agreement (USFWS Authority: 16 U.S.C. 1361–1407; 1531– meets the requirements of sections (3)(a) 2013b). If ferrets were reintroduced on 1544; and 4201–4245, unless otherwise and (3)(b)(2) of the Order. non-tribal lands adjacent to Tribal lands noted.

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■ 2. Amend § 17.11(h) by revising the and Threatened Wildlife to read as § 17.11 Endangered and threatened entry for ‘‘Ferret, black-footed’’ under follows: wildlife. MAMMALS in the List of Endangered * * * * * (h) * * *

Species Vertebrate population where Critical Special Scientific Historic range endangered or threatened Status When listed habitat rules Common name name

MAMMALS

******* Ferret, black- Mustela Western U.S.A., Entire, except where listed as E 1, 3, 433, 545, NA NA footed. nigripes. Western Canada, an experimental population. 546, 582, 646, Mexico. 703, 737, 860 Ferret, black- Mustela Western U.S.A., U.S.A. (WY and specified XN 433, 545, 546, NA 17.84(g) footed. nigripes. Western Canada, portions of AZ, CO, MT, 582, 646, 703, Mexico. SD, and UT, see 737, 860 17.84(g)(9)).

*******

* * * * * Population Area, in accordance with areas cover the entire State of Wyoming. their respective management plans. Any black-footed ferret found within the ■ 3. Amend § 17.84 by: * * * * * Wyoming NEP Experimental Population ■ a. Revising paragraphs (g)(1) and (6) * * * Area will be considered part of a (g)(6)(i); (i) Report such taking in Wyoming, nonessential experimental population. ■ b. Adding paragraph (g)(9)(viii); and including the Shirley Basin/Medicine A black-footed ferret that disperses beyond the boundaries of the ■ c. Adding a map entitled ‘‘Wyoming Bow experimental population area, to nonessential experimental population Nonessential Experiment Population the Field Supervisor, Ecological area takes on the status of that area (NEP) Area for the Black-footed Ferret’’ Services, Fish and Wildlife Service, (endangered, unless within another immediately following the map entitled Cheyenne, Wyoming (telephone: 307/ nonessential experimental population ‘‘Rosebud Sioux Tribe ITOPA SAPA 772–2374). area). Such animals may be captured for KIN (Black-footed Ferret) Experimental * * * * * genetic testing and relocation. If Population Area—South Dakota.’’ (9) * * * (viii) The Wyoming Experimental necessary, disposition of the captured The revisions and additions read as Population Area encompasses most of animal may occur in the following follows: the State of Wyoming. The boundaries ways: § 17.84 Special rules—vertebrates. of the nonessential experimental (A) If an animal is genetically determined to have originated from the * * * * * population include all areas in the State of Wyoming outside of the Shirley experimental population, we may return (g) * * * Basin/Medicine Bow Management Area it to the reintroduction area or to a (1) The black-footed ferret (see paragraph (g)(9)(i) of this section) captive-breeding facility. populations identified in paragraphs and the small portion of Wyoming (B) If an animal is determined to be (g)(9)(i) through (viii) of this section are included as part of the Northwestern genetically unrelated to the nonessential experimental populations. Colorado/Northeastern Utah experimental population, we will place We will manage each of these Experimental Population Area (see it in captivity under an existing populations, and each reintroduction paragraph (g)(9)(v) of this section). contingency plan. site within the Wyoming Experimental Collectively, however, these three 10(j) * * * * *

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* * * * * Dated: October 21, 2015. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2015–27639 Filed 10–29–15; 8:45 am] BILLING CODE 4333–15–P

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