[Code of Federal Regulations] [Title 50, Volume 2] [Revised as of October 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 50CFR17.84] [Page 156-224] TITLE 50--WILDLIFE AND FISHERIES CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR (CONTINUED) PART 17_ENDANGERED AND THREATENED WILDLIFE AND PLANTS--Table of Contents Subpart H_Experimental Populations Sec. 17.84 Special rules--vertebrates. (a) Delmarva Peninsula fox squirrel (Sciurus niger cinereus). (1) The Delmarva Peninsula fox squirrel population identified in paragraph (a)(6) of this section is a nonessential experimental population. (2) No person shall take this species, except: (i) For educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act and in accordance with applicable State fish and wildlife conservation laws and regulations; or (ii) Incidental to recreational activities. (3) Any violation of applicable State fish and wildlife conservation laws or regulations with respect to the taking of this species (other than incidental taking as described in paragraph (a)(2)(ii) of this section) will also be a violation of the Endangered Species Act. (4) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act. (5) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraph (a)(2) or (4) of this section. (6) The site for reintroduction of Delmarva Peninsula fox squirrel is totally isolated from existing populations of this species. The nearest extant population is in the Chincoteague National Wildlife Refuge approximately 50 miles from the reintroduction site. The reintroduction site is within the historic range of this species and is located at the Assawoman Wildlife Area, Sussex County, Delaware. Observation of previous releases have shown that fox squirrels have not traveled more than 2 or 3 miles from release sites, therefore, the possibility of this population contacting extant wild populations is unlikely. (7) The reintroduced population will be checked periodically to determine its condition and the success of the reintroduction. Of special concern will be the establishment of breeding pairs and the reproductive success of the population. The movement patterns of the released individuals and the overall health of the population will also be observed. (b) Colorado squawfish (Ptychocheilus lucius) and woundfin (Plagopterus argentissimus). (1) The Colorado squawfish and woundfin populations identified in paragraph (b)(6) of this section, are experimental, nonessential populations. (2) No person shall take the species, except in accordance with applicable State or Tribal fish and wildlife conservation laws and regulations in the following instances: (i) For educational purposes, scientific purposes, the enhancement of [[Page 157]] propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act; or (ii) Incidental to otherwise lawful activities, provided that the individual fish taken, if still alive, is immediately returned to its habitat. (3) Any violation of applicable State or Tribal fish and wildlife conservation laws or regulations with respect to the taking of this species (other than incidental taking as described in paragraph (b)(2)(ii) of this section) will also be a violation of the Endangered Species Act. (4) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable State or Tribal fish and wildlife laws or regulations. (5) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (b) (2) through (4) of this section. (6) All of the sites for reintroduction of Colorado squawfish and woundfin are totally isolated from existing populations of these species. The nearest population of Colorado squawfish is above Lake Powell in the Green and Colorado Rivers, an upstream distance of at least 800 miles including 6 mainstream dams, and 200 miles of dry riverbed. Woundfin are similarly isolated (450 miles distant, 200 miles of dry streambed and 5 mainstream dams). All reintroduction sites are within the probable historic range of these species and are as follows: Colorado Squawfish (i) Arizona: Gila County. Salt River from Roosevelt Dam upstream to U.S Highway 60 bridge. (ii) Arizona: Gila and Yavapai Counties. Verde River from Horseshoe Dam upstream to Perkinsville. The lower segments of large streams which flow into these two sections of river may, from time to time, be inhabited by Colorado squawfish. Downstream movement of squawfish in these areas will be restricted by dams and upstream movement is limited by lack of suitable habitat. Woundfin (i) Arizona: Gila and Yavapai Counties. Verde River from backwaters of Horseshoe Reservoir upstream to Perkinsville. (ii) Arizona: Graham and Greenlee Counties. Gila River from backwaters of San Carlos Reservoir upstream to Arizona/New Mexico State line. (iii) Arizona: Greenlee County. San Francisco River from its junction with the Gila River upstream to the Arizona/New Mexico State line. (iv) Arizona: Gila County. Tonto Creek, from Punkin Center upstream to Gisela. (v) Arizona: Yavapai County. Hassayampa River, from Red Cliff upstream to Wagoner. The movement of woundfin beyond these areas will be limited to the lower portion of larger tributaries where suitable habitat exists. Downstream movement is limited by dams, reservoirs, and dry streambed. Upstream movement from these areas is restricted due to the absence of habitat. Upstream areas are too cold and the gradient is too steep to support populations of woundfin. (7) The reintroduced populations will be checked annually to determine their condition. A seining survey will be used to determine population expansion or contraction, reproduction success, and general health condition of the fish. (c) Red wolf (Canis rufus). (1) The red wolf populations identified in paragraphs (c)(9)(i) and (c)(9)(ii) of this section are nonessential experimental populations. (2) No person may take this species, except as provided in paragraphs (c)(3) through (5) and (10) of this section. (3) Any person with a valid permit issued by the Service under Sec. 17.32 may take red wolves for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act and in accordance with applicable State fish and wildlife conservation laws and regulations; (4)(i) Any person may take red wolves found on private land in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that such taking is not intentional or willful, or is in defense of that person's own life or the lives of others; and that such taking is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for [[Page 158]] the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation. (ii) Any person may take red wolves found on lands owned or managed by Federal, State, or local government agencies in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that such taking is incidental to lawful activities, is unavoidable, unintentional, and not exhibiting a lack of reasonable due care, or is in defense of that person's own life or the lives of others, and that such taking is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation. (iii) Any private landowner, or any other individual having his or her permission, may take red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section when the wolves are in the act of killing livestock or pets, Provided that freshly wounded or killed livestock or pets are evident and that all such taking shall be reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation. (iv) Any private landowner, or any other individual having his or her permission, may harass red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section, Provided that all such harassment is by methods that are not lethal or physically injurious to the red wolf and is reported within 24 hours to the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer, as noted in paragraph (c)(6) of this section for investigation. (v) Any private landowner may take red wolves found on his or her property in the areas defined in paragraphs (c)(9) (i) and (ii) of this section after efforts by project personnel to capture such animals have been abandoned, Provided that the Service project leader or biologist has approved such actions in writing and all such taking shall be reported within 24 hours to the Service project leader or biologist, the refuge manager (for the red wolf population defined in paragraph (c)(9)(i) of this section), the Park superintendent (for the red wolf population defined in paragraph (c)(9)(ii) of this section), or the State wildlife enforcement officer for investigation. (vi) The provisions of paragraphs (4) (i) through (v) of this section apply to red wolves found in areas outside the areas defined in paragraphs (c)(9) (i) and (ii) of this section, with the exception that reporting of taking or harassment to the refuge manager, Park superintendent, or State wildlife enforcement officer, while encouraged, is not required. (5) Any employee or agent of the Service or State conservation agency who is designated for such purposes, when acting in the course of official duties, may take a red wolf if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) Dispose of a dead specimen, or salvage a dead specimen which may be useful for scientific study; (iii) Take an animal that constitutes a demonstrable but non- immediate threat to human safety or that is responsible for depredations to lawfully present domestic animals or other personal property, if it has not been possible to otherwise eliminate such depredation or loss of personal property, Provided That such taking must be done in a humane manner, and may involve killing or injuring the animal only if it has not been possible to eliminate such threat by live capturing and releasing the specimen unharmed on the refuge or Park; (iv) Move an animal for genetic purposes. (6) Any taking pursuant to paragraphs (c) (3) through (5) of this section [[Page 159]] must be immediately reported to either the Refuge Manager, Alligator River National Wildlife Refuge, Manteo, North Carolina, telephone 919/ 473-1131, or the Superintendent, Great Smoky Mountains National Park, Gatlinburg, Tennessee, telephone 615/436-1294. Either of these persons will determine disposition of any live or dead specimens. (7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act. (8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (c) (2) through (7) of this section. (9)(i) The Alligator River reintroduction site is within the historic range of the species in North Carolina, in Dare, Hyde, Tyrrell, and Washington Counties; because of its proximity and potential conservation value, Beaufort County is also included in the experimental population designation. (ii) The red wolf also historically occurred on lands that now comprise the Great Smoky Mountains National Park. The Park encompasses properties within Haywood and Swain Counties in North Carolina, and Blount, Cocke, and Sevier Counties in Tennessee. Graham, Jackson, and Madison Counties in North Carolina, and Monroe County in Tennessee, are also included in the experimental designation because of the close proximity of these counties to the Park boundary. (iii) Except for the three island propagation projects and these small reintroduced populations, the red wolf is extirpated from the wild. Therefore, there are no other extant populations with which the refuge or Park experimental populations could come into contact. (10) The reintroduced populations will be monitored closely for the duration of the project, generally using radio telemetry as appropriate. All animals released or captured will be vaccinated against diseases prevalent in canids prior to release. Any animal that is determined to be in need of special care or that moves onto lands where the landowner requests their removal will be recaptured, if possible, by Service and/ or Park Service and/or designated State wildlife agency personnel and will be given appropriate care. Such animals will be released back into the wild as soon as possible, unless physical or behavioral problems make it necessary to return the animals to a captive-breeding facility. (11) The status of the Alligator River National Wildlife Refuge project will be reevaluated by October 1, 1992, to determine future management status and needs. This review will take into account the reproductive success of the mated pairs, movement patterns of individual animals, food habits, and overall health of the population. The duration of the first phase of the Park project is estimated to be 10 to 12 months. After that period, an assessment of the reintroduction potential of the Park for red wolves will be made. If a second phase of reintroduction is attempted, the duration of that phase will be better defined during the assessment. However, it is presently thought that a second phase would last for 3 years, after which time the red wolf would be treated as a resident species within the Park. Throughout these periods, the experimental and nonessential designation of the animals will remain in effect. (d) Southern sea otter (Enhydra lutris nereis). (1) Definitions. The definitions set out in Sec. 17.3 apply to this paragraph (d). For purposes of this paragraph-- (i) The term defense-related agency action means an agency action proposed to be carried out directly by a military department, which does not have as its intended purpose the taking of southern sea otters. For purposes of this definition, the United States Coast Guard is not a military department. (ii) The term management zone means that area delineated in paragraph (d)(5)(i) of this section which surrounds the translocation zone and separates the translocation zone from the existing range of the parent population and adjacent range where expansion of the parent population is necessary for the recovery of southern sea otters. (iii) The term member of the experimental population of southern sea otters [[Page 160]] includes any southern sea otter, alive or dead, found within the translocation zone or the management zone, and any part or product of any such southern sea otter. (iv) The term parent population means the population of southern sea otters existing along the central California coast north of the management zone. (v) The term translocation zone means the area delineated in paragraph (d)(4)(i) of this section within which an experimental population of southern sea otters is released and contained. (vi) The term established experimental population of southern sea otters means a translocated population that meets the following criteria: An estimated combined minimum of 150 healthy male and female sea otters residing within the translocation zone, little or no emigration into the management zone occurring, and a minimum annual recruitment to the experimental population in the translocation zone of 20 sea otters for at least 3 years of the latest 5-year period, or replacement yield sufficient to maintain the experimental population at or near carrying capacity during the post-establishment and growth phase or carrying capacity phase of the experimental population. (vii) The term stabilized population is a population of sea otters within the translocation zone at the conclusion of the movement of animals from the parent population, except for purposes of genetic enhancement, which (A) is equal to or greater than the number of otters that were released from the holding pens alive and healthy, or 70 otters, whichever is less, and (B) is exhibiting growth. A stabilized population would represent the point at which the experimental population shifts from the transplant stage to the initial growth and reestablishment stage. (viii) The term carrying capacity means the ecological state in which the numbers of sea otters within the translocation zone remain relatively constant and in balance with the available food supply. (2) Description of experimental population. The experimental population of southern sea otters shall include all southern sea otters found within the translocation zone or the management zone. The Service will translocate no more than 70 southern sea otters during the first year, supplemented as necessary with up to 70 otters per year in subsequent years from the parent population to the translocation zone. Although a maximum of 250 southern sea otters may be moved from the parent population in order to establish the experimental population in the translocation zone, it is not likely that supplemental translocation after the initial 70 will involve more than small numbers of southern sea otters, although under this plan a maximum of 70 could be moved if needed in each year up to a total of 250. The majority of animals translocated each year will be weaned, immature sea otters with a sex ratio of about 4 to 1, females to males. Of the adult sea otters selected for translocation, approximately 3 out of every 4 animals will be female. (3) Translocation process--(i) Capture. Capture locations will be selected primarily from the southern third of the range of the parent population. Sea otters will be captured using diver-held devices, dip nets, surface entangling nets, or other methods which may be proven to be safe and effective in the future. All captured otters will be tagged and examined by a veterinarian experienced in treating marine mammals. (ii) Transport. All animals to be translocated will be transported directly to the translocation zone or held in specially constructed holding facilities prior to their movement to the translocation zone. Access to and care of animals will be restricted to Federal and State personnel and designated agents directly involved with the translocation. Each captured animal will be placed in a carrying cage and transported by truck to the local airport, from which point they will be flown to the translocation zone. From there they will be trucked to the release site. (iii) Release. The animals will be released directly into the wild from their transport cages, or held for up to 5 days in secured floating pens at the release site. No more than 10 individuals will be held in any pen, and adult males will be held separately. When held in [[Page 161]] floating pens the animals will be released passively by opening the floating pens and allowing animals to leave at will. (iv) Monitoring. Monitoring will be conducted on both the parent population and the experimental population by State and Federal biologists and their designated agents. Monitoring the parent population will be done to determine the effects of removal of otters on the growth and range expansion or recession of the parent population. Monitoring of the parent population will continue at least through the translocation period and into the foreseeable future. Monitoring of the experimental population will begin with the first release of translocated otters and will continue at least until either the new population reaches the carrying capacity of the habitat and establishes an equilibrium density or the translocation is determined to have failed. Monitoring will include intensive studies of changes in key components of the nearshore ecosystem of the translocation zone including benthic organisms, kelp and finfish. Monitoring, using ground and aerial observations, will also include intensive observation and documentation of the movements, distribution, foraging and reproductive behavior, dispersal tendencies, growth and reproductive rates, prey selection, and social interactions of sea otters in the experimental population. Results of monitoring the experimental population and the parent population will also be compared and evaluated. (v) Protection. At least two law enforcement officers will be specifically assigned, at least for the initial three- to five-year period after the actual translocation of animals, to conduct patrols and prevent illegal taking of southern sea otters in the translocation zone. Cooperative enforcement arrangements will be developed with other agencies having law enforcement activities in the area such as the U.S. Coast Guard, National Marine Fisheries Service, California Department of Fish and Game, U.S. Navy, and National Park Service to assist with protecting the experimental population. (4) Translocation zone. (i) There is established a translocation zone for southern sea otters comprised of San Nicolas Island, Begg Rock, and the surrounding waters within the following coordinates: N. Latitude/W. Longitude 33[deg]27.8[min]/119[deg]34.3[min] 33[deg]20.5[min]/119[deg]15.5[min] 33[deg]13.5[min]/119[deg]11.8[min] 33[deg]06.5[min]/119[deg]15.3[min] 33[deg]02.8[min]/119[deg]26.8[min] 33[deg]08.8[min]/119[deg]46.3[min] 33[deg]17.2[min]/119[deg]56.9[min] 33[deg]30.9[min]/119[deg]54.2[min] (ii) A map depicting the translocation zone is set forth below: [[Page 162]] [GRAPHIC] [TIFF OMITTED] TC01JN91.002 (iii) Prohibitions. Except as provided in paragraph (d)(4)(iv), all of the provisions in Sec. 17.21 (a) through (f) shall apply to any member of the experimental population of southern sea otters within the translocation zone. (iv) Exceptions. The prohibitions of paragraph (d)(4)(iii) shall not apply to: (A) Any act by the Service, the California Department of Fish and Game, or an authorized agent of the Service or the California Department of Fish and Game that is necessary to effect the relocation or management of any southern sea otter under the provisions of this paragraph; (B) Any taking of a member of the experimental population of southern sea otters that is incidental to, and not the purpose of, the carrying out of a defense-related agency action as defined in paragraph (d)(1)(i) of this section; or (C) Any act authorized by a permit issued under Sec. 17.32. (5) Management zone. (i) There is established a management zone for southern sea otters comprised of all waters, islands, islets, and land areas seaward of mean high tide subject to the jurisdiction of the United States located south of Point Conception, California (34[deg]26.9[min] N. Latitude), except for any area within the translocation zone delineated in paragraph (d)(4)(i) of this section. [[Page 163]] (ii) A map depicting the management zone is set forth in paragraph (d)(4)(ii) of this section. (iii) Prohibitions. Except as provided in paragraph (d)(5)(iv), all of the provisions in Sec. 17.21 (a) through (f) shall apply to any member of the experimental population of southern sea otters within the management zone. (iv) Exceptions. The prohibitions of paragraph (d)(5)(iii) shall not apply to: (A) Any act by the Service, the California Department of Fish and Game, or an authorized agent of the Service or the California Department of Fish and Game that is necessary to effect the relocation or management of any southern sea otter under the provisions of this paragraph; (B) Any taking of a member of the experimental population of southern sea otters that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity within the management zone delineated in paragraph (d)(5)(i) of this section; or (C) Any act authorized by a permit issued under Sec. 17.32. (6) Containment. The following containment measures, listed in order of preference, will be employed to prevent significant emigration of southern sea otters from San Nicolas Island and occupation of habitat within the management zone: (i) Capture of animals within the management zone for return to the experimental population or to the range of the parent population using non-lethal means. If verified sightings of one or more sea otters are made at any location within the management zone, field crews will be mobilized as soon as weather and sea conditions permit, to capture and remove the otter(s) from the zone. Capture will be done by experienced State and/or Federal personnel or other designated agents, using one or more of the same techniques used in the translocation effort, such as diver-held devices; surface entangling nets; dip nets; or other effective methods which may be developed for capturing sea otters in the future. Animals either will be flown or moved by air-conditioned van to the release site. (ii) Artificial reduction of fecundity for some sea otters within the experimental population. [Reserved] (iii) Selective or random, non-lethal removal of members of the experimental population within the translocation zone. [Reserved] Containment measures will be administered by the Fish and Wildlife Service's Office of Sea Otter Management and Coordination (OSOMC), in consultation and cooperation with the California Department of Fish and Game. The OSOMC will work closely with State biologists to remove otters from the management zone. Federal funding received through the normal appropriations process will be used for research, protection, and containment of the experimental population. Grants to the State of California under 16 U.S.C. 1535, may be employed to facilitate the measures outlined above. Public donations for management and containment of the experimental population will be accepted with assistance from the National Fish and Wildlife Foundation. (7) Effects of translocation on recovery and interagency cooperation--(i) Background. The Recovery Plan specifically describes the importance of translocation to the delisting of the southern sea otter under the Endangered Species Act. The Plan states: Sea otter translocation, if properly designed and implemented, should provide the necessary foundation for ultimately obtaining the Recovery Plan's objective and restoring the southern sea otter to a non- threatened status and maintaining OSP by: (i) Establishing a second colony (or colonies) sufficiently distant from the present population such that a smaller portion of southern sea otters will be jeopardized in the event of a large-scale oil spill, and (ii) establishing a data base for identifying the optimal sustainable population level for the sea otter. Thus the translocation, and establishment of a population of sea otters has been identified by the Recovery Plan as a critical action necessary for the recovery and delisting of the species. With regard to the relationship of a successful translocation to the initiation of a delisting action under the Endangered Species Act. The Plan states: Delisting should be considered when the southern sea otter population is stable or increasing at sustainable rates in a large enough area of their original habitat that only a small proportion of the population [[Page 164]] would be decimated by any single natural or man-caused catastrophe. To reach this point: (1) At least one additional population of sea otters must be established outside the current population range, (2) the existing population of sea otters and its habitat must be protected, and (3) the threat from oil spills or other major environmental changes must be minimized. The successful establishment of the experimental population to be carried out pursuant to this rule should fully satisfy the first criterion specified above from the Recovery Plan, provided that the parent population is showing sustained growth and expanding its range from its present size and distribution. However, if such growth and expansion is not occurring, the establishment of a single new population may not be sufficient to satisfy the broader criterion that the population must be increasing at a sustainable rate in a large enough area of their original habitat that only a small proportion of the population would be decimated by any single natural or man-caused catastrophe. (ii) Effect on recovery. The translocation will not influence the legal status of the species until such time as the Service determines that the experimental population is established. Once established, other factors such as the status of the parent population and completion of other recovery tasks will be considered. If the experimental population becomes established and the other recovery tasks identified in the recovery plan for the southern sea otter are attained, the southern sea otter will be eligible for consideration for delisting in accordance with the requirements of 50 CFR 424.11(d). If a catastrophic event were to significantly diminish the parent population, the size of the experimental population would be a factor in determining whether or not the southern sea otter should remain listed as ``threatened'' or reclassified as ``endangered,'' or if relisting should be considered if a delisting action had been completed. (iii) Effect on interagency cooperation. In determining the likelihood of jeopardy or non-jeopardy opinions for proposed Federal actions that ``may affect'' southern sea otters, the probability of jeopardy determinations will decrease proportionally for comparable projects with comparable types of impacts as the experimental population grows from the point of being established toward the maximum number that its habitat can support, i.e., carrying capacity. Thus, there is an inverse relationship between the size of the experimental population (after being determined to be established) and the probability of jeopardy determinations associated with section 7 consultations under the Endangered Species Act for projects affecting either the parent or the experimental population. However, the status of the experimental population is not the only factor to be considered in section 7 evaluations. The status of the parent population, as well as the cumulative impacts, baseline level of threats, and effects of the action on either population, will also be taken into account. In addition to considering the size of the experimental population, the contribution that such population could make toward helping restore a damaged parent population will also be a factor that will be considered during section 7 evaluations. For section 7 purposes, once the translocated otters become stabilized and enter into the initial growth and reestablishment stage, but before meeting the criteria for an established population, the experimental population will have an existence value that will be taken into consideration both quantitatively and qualitatively. Its numbers will be added to those of the parent population for purposes of analyzing the impacts of a Federal action on the southern sea otter population. Moreover, during the initial growth and reestablishment stage, as part of the analysis of the impacts on the population as a whole, the impacts of proposed Federal actions will be analyzed to clearly determine the relative risk to each of the two populations (parent population and the experimental population). (8) Determination of a failed translocation. The translocation would generally be considered to have failed if one or more of the following conditions exists: (i) If, after the first year following initiation of translocation or any subsequent year, no translocated otters remain within the translocation zone and [[Page 165]] the reasons for emigration or mortality cannot be identified and/or remedied; (ii) If, within three years from the initial transplant, fewer than 25 otters remain in the translocation zone and the reason for emigration or mortality cannot be identified and/or remedied; (iii) If, after two years following the completion of the transplant phase, the experimental population is declining at a significant rate and the translocated otters are not showing signs of successful reproduction (i.e., no pupping is observed); however, termination of the project under this and the previous criterion may be delayed if reproduction is occurring and the degree of dispersal into the management zone is small enough that the efforts to continue to remove otters from the management zone are acceptable to the Service and California Department of Fish and Game; (iv) If the Service determines, in consultation with the affected State and Marine Mammal Commission, that otters are dispersing from the translocation zone and becoming established within the management zone in sufficient numbers to demonstrate that containment cannot be successfully accomplished. This standard is not intended to apply to situations in which individuals or small numbers of otters are sighted within the management zone or temporarily manage to elude capture. Instead, it is meant to be applied when it becomes apparent that, over time, otters are relocating from the translocation zone to the management zone in such numbers that: (A) An independent breeding colony is likely to become established within the management zone, or (B) they could cause economic damage to fishery resources within the management zone. It is expected that the Service could make this determination within a year provided sufficient information is available; (v) If the health and well-being of the experimental population should become threatened to the point that the colony's continued survival is unlikely, despite the protections given to it by the Service, State, and applicable laws and regulations. An example would be if an overriding military action for national security was proposed that would threaten to devastate the colony and removal of the otters was determined to be the only viable way of preventing the loss of the individuals. (vi) If, based on any one of these criteria, the Service concludes, after consultation with the affected State and Marine Mammal Commission, that the translocation has failed to produce a viable, contained experimental population, this rulemaking will be amended to terminate the experimental population, and all otters remaining within the translocation zone will be captured and all healthy otters will be placed back into the range of the parent population. Efforts to maintain the management zone free of otters will be curtailed after all reasonable efforts have been made to remove all otters that are still within the management zone at the time of the decision to terminate the translocated population. A joint State-Service consultation will determine when all reasonable efforts have been made and additional efforts would be futile. (vii) Prior to declaring the translocation a failure, a full evaluation will be conducted into the probable causes of the failure. If the causes could be determined, and legal and reasonable remedial measures identified and implemented, consideration will be given to continuing to maintain the translocated population. If such reasonable measures cannot be identified and implemented, the results of the evaluation will be published in the Federal Register with a proposed rulemaking to terminate the experimental population. (e) Yellowfin madtom (Noturus flavipinnis). (1) Where is the yellowfin madtom designated as a nonessential experimental population (NEP)? We have designated two populations of this species as NEPs: the North Fork Holston River Watershed NEP and the Tellico River NEP. (i) The North Fork Holston River Watershed NEP area is within the species' historic range and is defined as follows: The North Fork Holston River watershed, Washington, Smyth, and Scott Counties, Virginia; South Fork Holston [[Page 166]] River watershed upstream to Ft. Patrick Henry Dam, Sullivan County, Tennessee; and the Holston River from the confluence of the North and South Forks downstream to the John Sevier Detention Lake Dam, Hawkins County, Tennessee. This site is totally isolated from existing populations of this species by large Tennessee River tributaries and reservoirs. As the species is not known to inhabit reservoirs and because individuals of the species are not likely to move 100 river miles through these large reservoirs, the possibility that this population could come in contact with extant wild populations is unlikely. (ii) The Tellico River NEP area is within the species' historic range and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County, Tennessee. This species is not currently known to exist in the Tellico River or its tributaries. Based on its habitat requirements, we do not expect this species to become established outside this NEP area. However, if individuals of this population move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced population. We would then amend this rule and enlarge the boundaries of the NEP area to include the entire range of the expanded population. (2) We do not intend to change the NEP designations to ``essential experimental,'' ``threatened,'' or ``endangered'' within the NEP areas. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii). (3) What activities are not allowed in the NEP areas? (i) Except as expressly allowed in paragraph (e)(4) of this section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the fishes identified in paragraph (e)(1) of this section. (ii) Any manner of take not described under paragraph (e)(4) of this section is prohibited in the NEP area. We may refer unauthorized take of these fishes to the appropriate authorities for prosecution. (iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (e)(3) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act. (iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (e)(3) of this section. (4) What take is allowed in the NEP area? Take of this species that is incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations, is allowed. (5) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts. (6) Note: Map of the NEP area for the yellowfin madtom in the Tellico River, Tennessee, appears immediately following paragraph (m)(5) of this section. (f) Guam Rail (Rallus owstoni). (1) The Guam rail population identified in paragraph (f)(7) of this section is a nonessential experimental population. (2) No person shall take this species, except: (i) In accordance with a valid permit issued by the Service under Sec. 17.32 for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act; or (ii) As authorized by the laws and regulations of the Commonwealth of the Northern Mariana Islands, after the Service has made the determination that the experimental population has become well established and occupies all suitable habitat island-wide. (3) Any employee of the Service, the Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife, or the Guam Division of Aquatic and Wildlife Resources who is designated for such purposes, may, when [[Page 167]] acting in the course of official duties, take a Guam rail without a permit if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) Dispose of a dead specimen; (iii) Salvage a dead specimen that may be useful for scientific study; or (iv) Take an animal that is responsible for depredations to personal property if it has not been possible to otherwise eliminate such depredations and/or loss of personal property, provided that such taking must be done in a humane manner and may involve injuring or killing the bird only if it has not been possible to eliminate depredations by live capturing and releasing the specimen unharmed in other suitable habitats. (4) Any violation of applicable commonwealth of the Northern Mariana Islands fish and wildlife conservation laws or regulations with respect to the taking of this species (other than taking as described in paragraph (f)(2)(ii) of this section) will also be a violation of the Endangered Species Act. (5) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations or in violation of applicable Commonwealth of the Northern Mariana Islands fish and wildlife laws or regulations or the Endangered Species Act. (6) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (f) (2) through (5) of this section. (7) The sites for introduction of Guam rails on Rota, Commonwealth of the Northern Mariana Islands, are on an island separated from Guam by 50 kilometers of ocean. The last known observation of an individual of this species occurred near the northern tip of Guam, which is closest to the island of Rota. No intermingling of these populations will occur since this species has been extirpated in the wild on Guam. The Rota release sites are of necessity outside the historic range of the Guam rail, as described in this regulation, because its primary range has been unsuitably and irreversibly destroyed by the brown tree snake. (8) The nonessential experimental population on Rota will be checked periodically by staff of the Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife and cooperating staff from the University of Tennessee to determine dispersal patterns, mortality, and reproductive success. The overall success of the releases and general health of the population will also be assessed. (g) Black-footed ferret (Mustela nigripes). (1) The black-footed ferret populations identified in paragraph (g)(9)(i) through (vii) of this section are nonessential experimental populations. We will manage each of these populations in accordance with their respective management plans. (2) No person may take this species in the wild in the experimental population area, except as provided in paragraphs (g)(3), (4), (5), and (10) of this section. (3) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under section 17.32 may take black-footed ferrets in the wild in the experimental population areas. (4) Any employee or agent of the Service or appropriate State wildlife agency designated for such purposes, acting in the course of official duties, may take a black-footed ferret in the wild in the experimental population areas if such action is necessary: (i) For scientific purposes; (ii) To relocate a ferret to avoid conflict with human activities; (iii) To relocate a ferret that has moved outside the Little Snake Black-footed Ferret Management Area/Coyote Basin Primary Management Zone or the Rosebud Sioux Reservation Experimental Population Area when that relocation is necessary to protect the ferret or is requested by an affected landowner or land manager, or whose removal is requested pursuant to paragraph (g)(12) of this section. (iv) To relocate ferrets within the experimental population area to improve ferret survival and recovery prospects; (v) To relocate ferrets from the experimental population areas into other ferret reintroduction areas or captivity; [[Page 168]] (vi) To aid a sick, injured, or orphaned animal; or (vii) To salvage a dead specimen for scientific purposes. (5) A person may take a ferret in the wild within the experimental population areas, provided such take is incidental to and not the purpose of, the carrying out of an otherwise lawful activity and if such ferret injury or mortality was unavoidable, unintentional, and did not result from negligent conduct. Such conduct is not considered intentional or ``knowing take'' for the purposes of this regulation, and the Service will not take legal action for such conduct. However, we will refer cases of knowing take to the appropriate authorities for prosecution. (6) You must report any taking pursuant to paragraphs (g)(3), (4)(vi) and (vii), and (5) of this section to the appropriate Service Field Supervisor, who will determine the disposition of any live or dead specimens. (i) Report such taking in the Shirley Basin/Medicine Bow experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Cheyenne, Wyoming (telephone: 307/ 772-2374). (ii) Report such taking in the Conata Basin/Badlands experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Pierre, South Dakota (telephone: 605/224-8693). (iii) Report such taking in the northcentral Montana experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Helena, Montana (telephone: 406/449-5225). (iv) Report such taking in the Aubrey Valley experimental population area to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Phoenix, Arizona (telephone: 602/640-2720). (v) Report such taking in the northwestern Colorado/northeastern Utah experimental population area to the appropriate Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Lakewood, Colorado (telephone: 303/275-2370), or Salt Lake City, Utah (telephone: 801/524- 5001). (vi) Report such taking in the Cheyenne River Sioux Tribe Experimental Population Area to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone 605/224-8693). (vii) Report such taking in the Rosebud Sioux Reservation Experimental Population Area to the Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone 605/224-8693). (7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any ferret or part thereof from the experimental populations taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act. (8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to commit, any offense defined in paragraphs (g)(2) and (7) of this section. (9) The sites for reintroduction of black-footed ferrets are within the historical range of the species. (i) We consider the Shirley Basin/Medicine Bow Management Area on the attached map of Wyoming to be the core recovery area for this species in southeastern Wyoming. The boundaries of the nonessential experimental population are that part of Wyoming south and east of the North Platte River within Natrona, Carbon, and Albany Counties (see Wyoming map). All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of releases constituted the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases comprise the nonessential experimental population, thereafter. (ii) We consider the Conata Basin/Badlands Reintroduction Area on the attached map for South Dakota to be the core recovery area for this species in southwestern South Dakota. The boundaries of the nonessential experimental population area occur north of State Highway 44 and BIA Highway 2 east of the Cheyenne River and BIA Highway 41, south of I-90, and west of State Highway 73 within Pennington, Shannon, and Jackson Counties, South [[Page 169]] Dakota. Any black-footed ferret found in the wild within these boundaries is part of the nonessential experimental population after the first breeding season following the first year of releases of black- footed ferret in the Reintroduction Area. A black-footed ferret occurring outside the experimental population area in South Dakota is considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary: (A) We may return an animal genetically related to the experimental population to the Reintroduction Area or to a captive facility. (B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated to the experimental population in the captive-breeding program. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner. (iii) We consider the Northcentral Montana Reintroduction Area shown on the attached map for Montana to be the core recovery area for this species in northcentral Montana. The boundaries of the nonessential experimental population are those parts of Phillips and Blaine Counties, Montana, described as the area bounded on the north beginning at the northwest corner of the Fort Belknap Indian Reservation on the Milk River; east following the Milk River to the east Phillips County line; then south along said line to the Missouri River; then west along the Missouri River to the west boundary of Phillips County; then north along said county line to the west boundary of Fort Belknap Indian Reservation; then further north along said boundary to the point of origin at the Milk River. All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of releases constituted the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases comprise the nonessential experimental population thereafter. A black-footed ferret occurring outside the experimental area in Montana is initially considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary: (A) We may return an animal genetically related to the experimental population to the reintroduction area or to a captive facility. (B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated to the experimental population in the captive-breeding program. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner. (iv) We consider the Aubrey Valley Experimental Population Area shown on the attached map for Arizona to be the core recovery area for this species in northwestern Arizona. The boundary of the nonessential experimental population area is those parts of Coconino, Mohave, and Yavapai Counties that include the Aubrey Valley west of the Aubrey Cliffs, starting from Chino Point, north along the crest of the Aubrey cliffs to the Supai Road (State Route 18), southwest along the Supai Road to Township 26 North, then west to Range 11 West, then south to the Hualapai Indian Reservation boundary, then east and northeast along the Hualapai Indian Reservation boundary to U.S. Highway Route 66; then southeast along Route 66 for approximately 6 km (2.3 miles) to a point intercepting the east boundary of section 27, Township 25 North, Range 9 West; then south along a line to where the Atchison-Topeka Railroad enters Yampa Divide Canyon; then southeast along the Atchison-Topeka Railroad alignment to the intersection of the Range 9 West/Range 8 West boundary; then south to the SE corner of section 12, Township 24 North, Range 9 West; then southeast to SE corner section 20, Township 24 West, Range 8 West; then south to the SE corner section 29, Township 24 North, Range 8 West; then southeast to the half section point on the east boundary line of section 33, Township 24 North, Range 8 West; then northeast [[Page 170]] to the SE corner of section 27, Township 24 North, Range 8 West; then southeast to the SE corner Section 35, Township 24 North, Range 8 West; then southeast to the half section point on the east boundary line of section 12, Township 23 North, Range 8 West; then southeast to the SE corner of section 8, Township 23 North, Range 7 West; then southeast to the SE corner of section 16, Township 23 North, Range 7 West; then east to the half section point of the north boundary line of section 14, Township 23 North, Range 7 West; then south to the half section point on the north boundary line of section 26, Township 23 North, Range 7 West; then east along section line to route 66; then southeast along route 66 to the point of origin at Chino Point. Any black-footed ferrets found in the wild within these boundaries is part of the nonessential experimental population after the first breeding season following the first year of releases of ferrets into the reintroduction area. A black- footed ferret occurring outside the experimental area in Arizona is initially considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary: (A) We may return an animal genetically related to the experimental population to the reintroduction area or to a captive facility. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner. (B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated to the experimental population in the captive-breeding program. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner. (v) We consider the Little Snake Black-footed Ferret Management Area in Colorado and the Coyote Basin Black-footed Ferret Primary Management Zone in Utah as the initial recovery sites for this species within the Northwestern Colorado/Northeastern Utah Experimental Population Area (see Colorado/Utah map). The boundaries of the nonessential Experimental Population Area will be all of Moffat and Rio Blanco Counties in Colorado west of Colorado State Highway 13; all of Uintah and Duchesne Counties in Utah; and in Sweetwater County, Wyoming, the line between Range 96 and 97 West (eastern edge), Range 102 and 103 West (western edge), and Township 14 and 15 North (northern edge). All marked ferrets found in the wild within these boundaries prior to the first breeding season following the first year of release will constitute the nonessential experimental population during this period. All ferrets found in the wild within these boundaries during and after the first breeding season following the first year of releases of ferrets into the reintroduction area will comprise the nonessential experimental population thereafter. A black-footed ferret occurring outside the Experimental Population Area is initially considered as endangered but may be captured for genetic testing. We will dispose of the captured animal in one of the following ways if necessary: (A) We may return an animal genetically related to the experimental population to the Reintroduction Area or to a captive facility. (B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated to the experimental population in the captive-breeding program. If a landowner outside the experimental population area wishes to retain black-footed ferrets on his property, we will develop a conservation agreement or easement with the landowner. (vi) The Cheyenne River Sioux Tribe Reintroduction Area is shown on the map of north-central South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental population area are the exterior boundaries of the Cheyenne River Sioux Reservation which includes all of Dewey and Ziebach Counties, South Dakota. Any black-footed ferret found in the wild within these counties will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed [[Page 171]] ferret release. A black-footed ferret occurring outside the Experimental Population Area in north-central South Dakota would initially be considered as endangered but may be captured for genetic testing. When a ferret is found outside the Experimental Population Area, the following may occur: (A) If an animal is genetically determined to have originated from the experimental population, we may return it to the reintroduction area or to a captive-breeding facility. (B) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in the captive-breeding program. (vii) The Rosebud Sioux Reservation Experimental Population Area is shown on the map of south-central South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental population area include all of Gregory, Mellette, Todd, and Tripp Counties in South Dakota. Any black-footed ferret found within these four counties will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed ferret release. A black-footed ferret occurring outside the nonessential experimental population area in south-central South Dakota will initially be considered as endangered but may be captured for genetic testing. If necessary, disposition of the captured animal may occur in the following ways: (A) If an animal is genetically determined to have originated from the experimental population, we may return it to the reintroduction area or to a captive-breeding facility. (B) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in the captive-breeding program. (10) Monitoring the reintroduced populations will occur continually during the life of the project, including the use of radio telemetry and other remote sensing devices, as appropriate. Vaccination of all released animals will occur prior to release, as appropriate, to prevent diseases prevalent in mustelids. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or appropriate State wildlife agency or their agents and given appropriate care. Such an animal may be released back to its appropriate reintroduction area or another authorized site as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity. (11) We will reevaluate the status of the experimental population within the first five years after the first year of release of black- footed ferrets to determine future management needs. This review will take into account the reproductive success and movement patterns of the individuals released into the area, as well as the overall health of the experimental population and the prairie dog ecosystem in the above described areas. We will propose reclassification of the black-footed ferret when we meet the appropriate recovery objectives for the species. (12) We will not include a reevaluation of the ``nonessential experimental'' designation for these populations during our review of the initial five year reintroduction program. We do not foresee any likely situation justifying alteration of the nonessential experimental status of these populations. Should any such alteration prove necessary and it results in a substantial modification to black-footed ferret management on non-Federal lands, any private landowner who consented to the introduction of black-footed ferrets on their lands may rescind their consent, and at their request, we will relocate the ferrets pursuant to paragraph (g)(4)(iii) of this section. [[Page 172]] [GRAPHIC] [TIFF OMITTED] TC01JN91.003 [[Page 173]] [GRAPHIC] [TIFF OMITTED] TC01JN91.004 [[Page 174]] [GRAPHIC] [TIFF OMITTED] TC01JN91.005 [[Page 175]] [GRAPHIC] [TIFF OMITTED] TC01JN91.006 [[Page 176]] [GRAPHIC] [TIFF OMITTED] TR01OC98.095 [[Page 177]] [GRAPHIC] [TIFF OMITTED] TR13OC00.006 [[Page 178]] [GRAPHIC] [TIFF OMITTED] TR16MY03.021 (h) Whooping crane (Grus americana). (1) The whooping crane populations identified in paragraphs (h)(9)(i) through (iii) of this section are nonessential experimental populations. [[Page 179]] (2) No person may take this species in the wild in the experimental population areas except when such take is accidental and incidental to an otherwise lawful activity, or as provided in paragraphs (h)(3) and (4) of this section. Examples of otherwise lawful activities include, but are not limited to, agricultural practices, pesticide application, water management, construction, recreation, trapping, or hunting, when such activities are in full compliance with all applicable laws and regulations. (3) Any person with a valid permit issued by the Fish and Wildlife Service (Service) under Sec. 17.32 may take whooping cranes in the wild in the experimental population area for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, and other conservation purposes consistent with the Act and in accordance with applicable State fish and wildlife conservation laws and regulations. (4) Any employee or agent of the Service or State wildlife agency who is designated for such purposes, when acting in the course of official duties, may take a whooping crane in the wild in the experimental population area if such action is necessary to: (i) Relocate a whooping crane to avoid conflict with human activities; (ii) Relocate a whooping crane that has moved outside the eastern U.S. population area identified in paragraph (h)(9)(iii) of this section, or the Kissimmee Prairie or Rocky Mountain range of the experimental populations, when removal is necessary or requested and is authorized by a valid permit under Sec. 17.22; (iii) Relocate whooping cranes within the experimental population areas to improve survival and recovery prospects; (iv) Relocate whooping cranes from the experimental population areas into captivity; (v) Aid a sick, injured, or orphaned specimen; or (vi) Dispose of a dead specimen, or salvage a dead specimen which may be useful for scientific study. (5) Any taking pursuant to paragraphs (h)(3) and (4) of this section must be immediately reported to the National Whooping Crane Coordinator, U.S. Fish and Wildlife Service, P.O. Box 100, Austwell, Texas 77950 (Phone: 361-286-3559), who, in conjunction with his counterpart in the Canadian Wildlife Service, will determine the disposition of any live or dead specimens. (6) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species from the experimental populations taken in violation of these regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered Species Act. (7) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (h) (2) through (6) of this section. (8) The Service will not mandate any closure of areas, including National Wildlife Refuges, during hunting or conservation order seasons or closure or modification of hunting or conservation order seasons in the following situations: (i) For the purpose of avoiding take of the nonessential experimental population identified in paragraph (h)(9)(iii) of this section; (ii) If a clearly marked whooping crane from the nonessential experimental population identified in (h)(9)(iii) wanders outside the designated NEP area. In these situations, the Service will attempt to capture the stray bird and return it to the appropriate area if removal is requested by the State. (9) All whooping cranes found in the wild within the boundaries listed in paragraphs (h)(9)(i) through (iii) of this section will be considered nonessential experimental animals. Geographic areas the nonessential experimental populations may inhabit include the following-- (i) The entire State of Florida. The reintroduction site is the Kissimmee Prairie portions of Polk, Osceola, Highlands, and Okeechobee Counties. Current information indicates that the Kissimmee Prairie is within the historic range of the whooping crane in Florida. (A) No other natural populations of whooping cranes are likely to come into contact with the experimental [[Page 180]] population at Kissimmee Prairie. The only natural extant population, known as the Aransas/Wood Buffalo National Park population occurs well west of the Mississippi River. This population nests in the Northwest Territories and adjacent areas of Alberta, Canada, primarily within the boundaries of the Wood Buffalo National Park, and winters along the Central Texas Gulf of Mexico coast at Aransas National Wildlife Refuge. The only other extant eastern U.S. population is the nonessential experimental population described in paragraph (h)(9)(iii) of this section. Remnant individuals of the Rocky Mountain nonessential experimental population occur in the western United States as described in paragraph (h)(9)(ii) of this section. (B) Whooping cranes adhere to ancestral breeding grounds, leaving little possibility that individuals from the extant Aransas/Wood Buffalo National Park population will stray into Florida or the Rocky Mountain Population. Studies of whooping cranes have shown that migration is a learned rather than an innate behavior. The experimental population released at Kissimmee Prairie is expected to remain mostly within the prairie region of central Florida. (ii) The States of Colorado, Idaho, New Mexico, Utah, and the western half of Wyoming. Wooping cranes in this area do not come in contact with whooping cranes of the Aransas/Wood Buffalo Population; and (iii) That portion of the eastern contiguous United States which includes the States of Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin. (See map following paragraph (h)(11) of this section). Whooping cranes within this population are expected to occur mostly within the States of Wisconsin, Illinois, Indiana, Kentucky, Tennessee, Georgia, and Florida, which is within the historic range of the whooping crane in the United States. The additional States included within the experimental population area are those expected to receive occasional use by the cranes, or which may be used as breeding or wintering areas in the event of future population expansion. Whooping cranes in this population are not expected to come in contact with whooping cranes of the Aransas/Wood Buffalo National Park Population. (10) The reintroduced populations will be monitored during the duration of the projects by the use of radio telemetry and other appropriate measures. Any animal that is determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent possible by Service and/or State wildlife personnel or their designated agent and given appropriate care. Such animals will be released back to the wild as soon as possible, unless physical or behavioral problems make it necessary to return them to a captive breeding facility. (11) The status of the experimental populations will be reevaluated periodically to determine future management needs. This review will take into account the reproductive success and movement patterns of the individuals released within the experimental population areas. [[Page 181]] [GRAPHIC] [TIFF OMITTED] TR26JN01.031 (i) Gray wolf (Canis lupus). (1) The gray wolves (wolf) identified in paragraph (i)(7) of this section are nonessential experimental. These wolves will be managed in accordance with the respective provisions of this section. (2) The Service finds that reintroduction of nonessential experimental gray wolves, as defined in (i)(7) of this section, will further the conservation of the species. (3) No person may take this species in the wild in an experimental population area except as provided in paragraphs (i)(3), (7), and (8) of this section. (i) Landowners on their private land and livestock producers (i.e., producers of cattle, sheep, horses, and mules or as defined in State and tribal wolf management plans as approved by the Service) that are legally using public land (Federal land and any other public lands designated in State and tribal wolf management plans as approved by the Service) may harass any wolf in an opportunistic (the wolf cannot be purposely attracted, tracked, waited for, or searched out, then harassed) and noninjurious (no temporary or permanent physical damage may result) manner at any time, Provided that such harassment is non- lethal or is not physically injurious to the gray wolf and is reported within 7 days to the Service project leader for wolf reintroduction or agency representative designated by the Service. (ii) Any livestock producers on their private land may take (including to kill or injure) a wolf in the act of killing, wounding, or biting livestock (cattle, sheep, horses, and mules or as defined in State and tribal wolf management plans as approved by the Service), Provided that such incidents are to be immediately reported within 24 hours to the Service project leader for wolf reintroduction or agency representative designated by the Service, and livestock freshly (less than 24 hours) wounded (torn flesh and bleeding) or killed by wolves must be evident. Service or other Service authorized agencies will confirm if livestock were wounded or killed by wolves. The taking of any wolf without such evidence may be referred to the appropriate authorities for prosecution. [[Page 182]] (iii) Any livestock producer or permittee with livestock grazing allotments on public land may receive a written permit, valid for up to 45 days, from the Service or other agencies designated by the Service, to take (including to kill or injure) a wolf that is in the act of killing, wounding, or biting livestock (cattle, sheep, horses, and mules or as defined in State and tribal wolf management plans as approved by the Service), Provided that six or more breeding pairs of wolves have been documented in the experimental population area and the Service or other agencies authorized by the Service has confirmed that the livestock losses were caused by wolves and have completed agency efforts to resolve the problem. Such take must be reported immediately within 24 hours to the Service project leader for wolf reintroduction or agency representative designated by the Service. There must be evidence of freshly wounded or killed livestock by wolves. Service or other Service authorized agencies will investigate and determine if the livestock were wounded or killed by wolves. The taking of any wolf without such evidence may be referred to the appropriate authorities for prosecution. (iv) Potentially affected States and tribes may capture and translocate wolves to other areas within an experimental population area as described in paragraph (i)(7), Provided the level of wolf predation is negatively impacting localized ungulate populations at an unacceptable level. Such translocations cannot inhibit wolf population recovery. The States and tribes will define such unacceptable impacts, how they would be measured, and identify other possible mitigation in their State or tribal wolf management plans. These plans must be approved by the Service before such movement of wolves may be conducted. (v) The Service, or agencies authorized by the Service, may promptly remove (place in captivity or kill) any wolf the Service or agency authorized by the Service determines to present a threat to human life or safety. (vi) Any person may harass or take (kill or injure) a wolf in self defense or in defense of others, Provided that such take is reported immediately (within 24 hours) to the Service reintroduction project leader or Service designated agent. The taking of a wolf without an immediate and direct threat to human life may be referred to the appropriate authorities for prosecution. (vii) The Service or agencies designated by the Service may take wolves that are determined to be ``problem'' wolves. Problem wolves are defined as wolves that in a calendar year attack livestock (cattle, sheep, horses, and mules) or as defined by State and tribal wolf management plans approved by the Service or wolves that twice in a calendar year attack domestic animals (all domestic animals other than livestock). Authorized take includes, but is not limited to non-lethal measures such as: aversive conditioning, nonlethal control, and/or translocating wolves. Such taking may be done when five or fewer breeding pairs are established in an experimental population area. If the take results in a wolf mortality, then evidence that the mortality was nondeliberate, accidental, nonnegligent, and unavoidable must be provided. When six or more breeding pairs are established in the experimental population area, lethal control of problem wolves or permanent placement in captivity will be authorized but only after other methods to resolve livestock depredations have been exhausted. Depredations occurring on Federal lands or other public lands identified in State or tribal wolf management plans and prior to six breeding pairs becoming established in an experimental population area may result in capture and release of the female wolf with pups, and her pups at or near the site of capture prior to October 1. All wolves on private land, including female wolves with pups, may be relocated or moved to other areas within the experimental population area if continued depredation occurs. Wolves attacking domestic animals other than livestock, including pets on private land, two or more times in a calendar year will be relocated. All chronic problem wolves (wolves that depredate on domestic animals after being moved once for previous domestic animal depredations) will be removed from the wild (killed or placed [[Page 183]] in captivity). The following three criteria will be used in determining the status of problem wolves within the nonessential experimental population area: (A) There must be evidence of wounded livestock or partial remains of a livestock carcass that clearly shows that the injury or death was caused by wolves. Such evidence is essential since wolves may feed on carrion which they found and did not kill. There must be reason to believe that additional livestock losses would occur if no control action is taken. (B) There must be no evidence of artificial or intentional feeding of wolves. Improperly disposed of livestock carcasses in the area of depredation will be considered attractants. Livestock carrion or carcasses on public land, not being used as bait under an agency authorized control action, must be removed or otherwise disposed so that it will not attract wolves. (C) On public lands, animal husbandry practices previously identified in existing approved allotment plans and annual operating plans for allotments must have been followed. (viii) Any person may take a gray wolf found in an area defined in paragraph (i)(7), Provided that the take is incidental to an otherwise lawful activity, accidental, unavoidable, unintentional, not resulting from negligent conduct lacking reasonable due care, and due care was exercised to avoid taking a gray wolf. Such taking is to be reported within 24 hours to a Service or Service-designated authority. Take that does not conform with such provisions may be referred to the appropriate authorities for prosecution. (ix) Service or other Federal, State, or tribal personnel may receive written authorization from the Service to take animals under special circumstances. Wolves may be live captured and translocated to resolve demonstrated conflicts with ungulate populations or with other species listed under the Act, or when they are found outside of the designated experimental population area. Take procedures in such instances would involve live capture and release to a remote area or placement in a captive facility, if the animal is clearly unfit to remain in the wild. Killing of wolves will be a last resort and is only authorized when live capture attempts have failed or there is clear endangerment to human life. (x) Any person with a valid permit issued by the Service under Sec. 17.32 may take wolves in the wild in the experimental population area, pursuant to terms of the permit. (xi) Any employee or agent of the Service or appropriate Federal, State, or tribal agency, who is designated in writing for such purposes by the Service, when acting in the course of official duties, may take a wolf from the wild within the experimental population area, if such action is for: (A) Scientific purposes; (B) To relocate wolves to avoid conflict with human activities; (C) To relocate wolves within the experimental population areas to improve wolf survival and recovery prospects; (D) To relocate wolves that have moved outside the experimental population area back into the experimental population area; (E) To aid or euthanize sick, injured, or orphaned wolves; (F) To salvage a dead specimen which may be used for scientific study; or (G) To aid in law enforcement investigations involving wolves. (xii) Any taking pursuant to this section must be reported immediately (within 24 hours) to the appropriate Service or Service- designated agency, which will determine the disposition of any live or dead specimens. (4) Human access to areas with facilities where wolves are confined may be restricted at the discretion of Federal, State, and tribal land management agencies. When five or fewer breeding pairs are in an experimental population area, land-use restrictions may also be employed on an as-needed basis, at the discretion of Federal land management and natural resources agencies to control intrusive human disturbance around active wolf den sites. Such temporary restrictions on human access, when five or fewer breeding pairs are established in an experimental population area, may be required between April 1 and June 30, within 1 mile of active wolf den or rendezvous sites and would only apply to public lands or [[Page 184]] other such lands designated in State and tribal wolf management plans. When six or more breeding pairs are established in an experimental population area, no land-use restrictions may be employed outside of national parks or national wildlife refuges, unless wolf populations fail to maintain positive growth rates toward population recovery levels for 2 consecutive years. If such a situation arose, State and tribal agencies would identify, recommend, and implement corrective management actions within 1 year, possibly including appropriate land-use restrictions to promote growth of the wolf population. (5) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or part thereof from the experimental populations taken in violation of the regulations in paragraph (i) of this section or in violation of applicable State or tribal fish and wildlife laws or regulations or the Endangered Species Act. (6) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in this section. (7) The site for reintroduction is within the historic range of the species: (i) The central Idaho area is shown on the following map. The boundaries of the nonessential experimental population area will be those portions of Idaho that are south of Interstate Highway 90 and west of Interstate 15, and those portions of Montana south of Interstate 90, Highway 93 and 12 from Missoula, Montana west of Interstate 15. [GRAPHIC] [TIFF OMITTED] TC01JN91.007 (ii) The Yellowstone Management Area is shown on the following map. The boundaries of the nonessential experimental population area will be that portion of Idaho that is east of Interstate Highway 15; that portion of Montana that is east of Interstate Highway 15 and south of the Missouri River from Great Falls, Montana, to the eastern Montana border; and all of Wyoming. [GRAPHIC] [TIFF OMITTED] TC01JN91.008 (iii) All wolves found in the wild within the boundaries of this paragraph (i)(7) after the first releases will be considered nonessential experimental animals. In the conterminous United States, a wolf that is outside an [[Page 185]] experimental area (as defined in paragraph (i)(7) of this section) would be considered as endangered (or threatened if in Minnesota) unless it is marked or otherwise known to be an experimental animal; such a wolf may be captured for examination and genetic testing by the Service or Service-designated agency. Disposition of the captured animal may take any of the following courses: (A) If the animal was not involved in conflicts with humans and is determined likely to be an experimental wolf, it will be returned to the reintroduction area. (B) If the animal is determined likely to be an experimental wolf and was involved in conflicts with humans as identified in the management plan for the closest experimental area, it may be relocated, placed in captivity, or killed. (C) If the animal is determined not likely to be an experimental animal, it will be managed according to any Service approved plans for that area or will be marked and released near its point of capture. (D) If the animal is determined not to be a wild gray wolf or if the Service or agencies designated by the Service determine the animal shows physical or behavioral evidence of hybridization with other canids, such as domestic dogs or coyotes, or of being an animal raised in captivity, it will be returned to captivity or killed. (8) The reintroduced wolves will be monitored during the life of the project, including by the use of radio telemetry and other remote sensing devices as appropriate. All released animals will be vaccinated against diseases and parasites prevalent in canids, as appropriate, prior to release and during subsequent handling. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or Service-designated agencies and given appropriate care. Such an animal will be released back into its respective reintroduction area as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity or euthanize it. (9) The status of the experimental population will be reevaluated within the first 3 years, after the first year of releases of wolves, to determine future management needs and if further reintroductions are required. This review will take into account the reproductive success and movement patterns of the individuals released in the area, as well as the overall health and fate of the experimental wolves. Once recovery goals are met for downlisting or delisting the species, a rule will be proposed to address downlisting or delisting. (10) The Service does not intend to reevaluate the ``nonessential experimental'' designation. The Service does not foresee any likely situation which would result in changing the nonessential experimental status until the gray wolf is recovered and delisted in the northern Rocky Mountains according to provisions outlined in the Act. However, if the wolf population does not demonstrate positive growth toward recovery goals for 2 consecutive years, the affected States and tribes, in cooperation with the Service, would, within 1 year, identify and initiate wolf management strategies, including appropriate public review and comment, to ensure continued wolf population growth toward recovery levels. All reintroduced wolves designated as nonessential experimental will be removed from the wild and the experimental population status and regulations revoked when (i) legal actions or lawsuits change the wolves status to endangered under the Act or (ii) within 90 days of the initial release date, naturally occurring wolves, consisting of two breeding pairs that for 2 consecutive years have each successfully raised two offspring, are discovered in the experimental population area. The naturally occurring wolves would be managed and protected as endangered species under the Act. (j) California condor (Gymnogyps californianus). (1) The California condor (Gymnogyps californianus) population identified in paragraph (j)(8) of this section is a nonessential experimental population, and the release of such population will further the conservation of the species. (2) You must not take any California condor in the wild in the experimental population area except as provided by this rule: [[Page 186]] (i) Throughout the entire California condor experimental population area, you will not be in violation of the Endangered Species Act (Act) if you unavoidably and unintentionally take (including killing or injuring) a California condor, provided such take is non-negligent and incidental to a lawful activity, such as hunting, driving, or recreational activities, and you report the take as soon as possible as provided under paragraph 5 below. (ii) [Reserved] (3) If you have a valid permit issued by the Service under Sec. 17.32, you may take California condors in the wild in the experimental population area, pursuant to the terms of the permit. (4) Any employee or agent of the Fish and Wildlife Service (Service), Bureau of Land Management or appropriate State wildlife agency, who is designated for such purposes, when acting in the course of official duties, may take a California condor from the wild in the experimental population area and vicinity if such action is necessary: (i) For scientific purposes; (ii) To relocate California condors within the experimental population area to improve condor survival, and to address conflicts with ongoing or proposed activities, or with private landowners, when removal is necessary to protect the condor, or is requested by an adversely affected landowner or land manager, or other adversely affected party. Adverse effects and requests for condor relocation will be documented, reported and resolved in as an expedient manner as appropriate to the specific situation to protect condors and avoid conflicts. Prior to any efforts to relocate condors, the Service will obtain permission from the appropriate landowner(s); (iii) To relocate California condors that have moved outside the experimental population area, by returning the condor to the experimental population area or moving it to a captive breeding facility. All captures and relocations from outside the experimental population area will be coordinated with Service Cooperators, and conducted with the permission of the landowner(s) or appropriate land management agency(s). (iv) To aid a sick, injured, or orphaned California condor; (v) To salvage a dead specimen that may be useful for scientific study; or (vi) To dispose of a dead specimen. (5) Any taking pursuant to paragraphs (j)(2), (j)(4)(iv), (j)(4)(v), and (j)(4)(vi), of this section must be reported as soon as possible to the Field Supervisor, U.S. Fish and Wildlife Service, Ecological Services, Arizona Field Office, Phoenix, 2321 W. Royal Palm Road, Suite 103, Arizona (telephone 602/640-2720) who will determine the disposition of any live or dead specimens. (6) You must not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any California condor or part thereof from the experimental population taken in violation of this paragraph (j) or in violation of applicable State or Tribal laws or regulations or the Act. (7) It is unlawful for you to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (j)(2) and (j)(6) of this section. (8) The designated experimental population area of the California condor includes portions of three states--Arizona, Nevada, and Utah. The southern boundary is Interstate Highway 40 in Arizona from its junction with Highway 191 west across Arizona to Kingman; the western boundary starts at Kingman, goes northwest on Highway 93 to Interstate Highway 15, continues northeasterly on Interstate Highway 15 in Nevada and Utah, to Interstate Highway 70 in Utah; where the northern boundary starts and goes across Utah to Highway 191; where the eastern boundary starts and goes south through Utah until Highway 191 meets Interstate Highway 40 in Arizona (See map at end of this paragraph (j)). (i) All California condors released into the experimental population area, and their offspring, are to be marked and visually identifiable by colored and coded patagial wing markers. (ii) The Service has designated the experimental population area to accommodate the potential future movements of a wild population of condors. All released condors and their progeny [[Page 187]] are expected to remain in the experimental area due to the geographic extent of the designation. (9) The nonessential experimental population area includes the entire highway rights-of-way of the highways in paragraph (j)(8) of this section that constitute the perimeter boundary. All California condors found in the wild within these boundaries will comprise the experimental population. (i) The experimental population is to be monitored during the reintroduction project. All California condors are to be given physical examinations before being released. (ii) If there is any evidence that the condor is in poor health or diseased, it will not be released to the wild. (iii) Any condor that displays signs of illness, is injured, or otherwise needs special care may be captured by authorized personnel of the Service, Bureau of Land Management, or appropriate State wildlife agency or their agents, and given the appropriate care. These condors are to be re-released into the reintroduction area as soon as possible, unless physical or behavioral problems make it necessary to keep them in captivity for an extended period of time, or permanently. (10) The status of the reintroduction project is to receive an informal review on an annual basis and a formal evaluation within the first 5 years after the initial release, and every 5 years thereafter. This evaluation will include, but not be limited to: a review of management issues; compliance with agreements; assessment of available carrion; dependence of older condors on supplemental food sources; post release behavior; causes and rates of mortality; alternative release sites; project costs; public acceptance; and accomplishment of recovery tasks prescribed in California Condor Recovery Plan. The number of variables that could affect this reintroduction project make it difficult to develop criteria for success or failure after 5 years. However, if after 5 years the project is experiencing a 40 percent or greater mortality rate or released condors are not finding food on their own, serious consideration will be given to terminating the project. (11) The Service does not intend to pursue a change in the nonessential experimental population designation to experimental essential, threatened, or endangered, or modify the experimental population area boundaries without consulting with and obtaining the full cooperation of affected parties located within the experimental population area, the reintroduction program cooperators identified in the memorandum of understanding (MOU) for this program, and the cooperators identified in the agreement for this program. (i) The Service does not intend to change the status of this nonessential population until the California condor is recovered and delisted in accordance with the Act or if the reintroduction is not successful and the rule is revoked. No designation of critical habitat will be made for nonessential populations (16 U.S.C. Sec. 1539(j)(2)(C)(ii). (ii) Legal actions or other circumstances may compel a change in this nonessential experimental population's legal status to essential, threatened, or endangered, or compel the Service to designate critical habitat for the California condors within the experimental population area defined in this rule. If this happens, all California condors will be removed from the area and this experimental population rule will be revoked, unless the parties to the MOU and agreement existing at that time agree that the birds should remain in the wild. Changes in the legal status and/or removal of this population of California condors will be made in compliance with any applicable Federal rulemaking and other procedures. [[Page 188]] [GRAPHIC] [TIFF OMITTED] TR16OC96.000 (k) Mexican gray wolf (Canis lupus baileyi). (1) The Mexican gray wolf (Mexican wolf) populations reestablished in the Blue Range Wolf Recovery Area and in the White Sands Wolf Recovery Area, if used, within the Mexican Wolf Experimental Population Area, identified in paragraph (k)(9) of [[Page 189]] this section, are one nonessential experimental population. This nonessential experimental population will be managed according to the following provisions. (2) Based on the best available information, the Service finds that reintroduction of an experimental population of Mexican wolves into the subspecies' probable historic range will further the conservation of the Mexican wolf subspecies and of the gray wolf species; that the experimental population is not ``essential,'' under 50 CFR 17.81(c)(2); that the experimental population is wholly separate geographically from any other wild gray wolf population or individual wild gray wolves; that no wild Mexican wolves are known to exist in the experimental population area or anywhere else; and that future migration of wild Mexican wolves into the experimental population area is not possible. (3) No person, agency, or organization may ``take'' [see definition in paragraph (k)(15) of this section] any wolf in the wild within the Mexican Wolf Experimental Population Area, except as provided in this rule. The Service may investigate each take of a Mexican wolf and may refer the take of a wolf contrary to this rule to the appropriate authorities for prosecution. (i) Throughout the Mexican Wolf Experimental Population Area, you will not be in violation of the Act or this rule for ``unavoidable and unintentional take'' [see definition in paragraph (k)(15) of this section] of a wolf. Such take must be non-negligent and incidental to a legal activity, such as military training and testing, trapping, driving, or recreational activities. You must report the take within 24 hours to the Service's Mexican Wolf Recovery Coordinator or to a designated representative of the Service. (ii) Throughout the Mexican Wolf Experimental Population Area, you may ``harass'' [see definition in paragraph (k)(15) of this section ] wolves that are within 500 yards of people, buildings, facilities, pets, ``livestock'' [see definition in paragraph (k)(15) of this section], or other domestic animals in an opportunistic, noninjurious manner [see definition of ``opportunistic, noninjurious harassment'' in paragraph (k)(15) of this section] at any time--provided that wolves cannot be purposely attracted, tracked, searched out, or chased and then harassed. You must report harassment of wolves within 7 days to the Service's Mexican Wolf Recovery Coordinator or to a designated representative of the Service. (iii) Throughout the Mexican Wolf Experimental Population Area, excluding areas within the national park system and national wildlife refuge system, no Federal agency or their contractors will be in violation of the Act or this rule for unavoidable or unintentional take of a wolf resulting from any action authorized by that Federal agency or by the Service, including, but not limited to, military training and testing. This provision does not exempt agencies and their contractors from complying with sections 7(a)(1) and 7(a)(4) of the Act, the latter of which requires a conference with the Service if they propose an action that is likely to jeopardize the continued existence of the Mexican wolf. (iv) In areas within the national park system and national wildlife refuge system, Federal agencies must treat Mexican wolves as a threatened species for purposes of complying with section 7 of the Act. (v) On private land anywhere within the Mexican Wolf Experimental Population Area, livestock owners or their agents may take (including kill or injure) any wolf actually ``engaged in the act of killing, wounding, or biting livestock'' [see definition in paragraph (k)(15) of this section]; provided that evidence of livestock freshly wounded or killed by wolves is present; and further provided that the take is reported to the Service's Mexican Wolf Recovery Coordinator or a designated representative of the Service within 24 hours. (vi) On tribal reservation land anywhere within the Mexican Wolf Experimental Population Area, livestock owners or their agents may take (including kill or injure) any wolf actually engaged in the act of killing, wounding, or biting livestock; provided that evidence of livestock freshly wounded or killed by wolves is present; and further provided that the take is reported to the Service's Mexican Wolf [[Page 190]] Recovery Coordinator or a designated representative of the Service within 24 hours. (vii) On ``public lands'' [see definition in paragraph (k)(15) of this section] allotted for grazing anywhere within the Mexican Wolf Experimental Population Area, including within the designated ``wolf recovery areas'' [see definition in paragraph (k)(15) of this section], livestock owners or their agents may be issued a permit under the Act to take wolves actually engaged in the act of killing, wounding, or biting ``livestock'' [see definition in paragraph (k)(15) of this section]. Before such a permit is issued, the following conditions must be met-- livestock must be legally present on the grazing allotment; six or more ``breeding pairs'' [see definition in paragraph (k)(15) of this section] of Mexican wolves must be present in the Blue Range Wolf Recovery Area; previous loss or injury of livestock on the grazing allotment, caused by wolves, must be documented by the Service or our authorized agent; and agency efforts to resolve the problem must be completed. Permits issued under this provision will be valid for 45 days or less and will specify the maximum number of wolves you are allowed to take. If you take a wolf under this provision, evidence of livestock freshly wounded or killed by wolves must be present. You must report the take to the Service's Mexican Wolf Recovery Coordinator or a designated representative of the Service within 24 hours. (viii) Throughout the Mexican Wolf Experimental Population Area, take of Mexican wolves by livestock guarding dogs, when used in the traditional manner to protect livestock on public, tribal, and private lands, is permitted. If you become aware that such take by your guard dog has occurred, you must report the take to the Service's Mexican Wolf Recovery Coordinator or a designated representative of the Service within 24 hours. (ix) Personnel authorized by the Service may take any Mexican wolf in the nonessential experimental population in a manner consistent with a Service-approved management plan, special management measure, or a valid permit issued by the Service under Sec. 17.32. This may include, but is not limited to, capture and translocation of wolves that--prey on livestock; attack pets or domestic animals other than livestock on private or tribal land; ``impact game populations in ways which may inhibit further wolf recovery'' [see definition in paragraph (k)(15) of this section]; prey on members of the desert bighorn sheep herd found on the White Sands Missile Range and San Andres National Wildlife Refuge so long as the State of New Mexico lists it as a species to be protected; are considered ``problem wolves'' [see definition in paragraph (k)(15) of this section]; are a nuisance; endanger themselves by their presence in a military impact area; need aid or veterinary care; or are necessary for authorized scientific, research, or management purposes. Lethal methods of take may be used when reasonable attempts to capture wolves alive fail and when the Service determines that immediate removal of a particular wolf or wolves from the wild is necessary. Authorized personnel may use leg-hold traps and any other effective device or method for capturing or controlling wolves to carry out any measure that is a part of a Service-approved management plan, notwithstanding any conflicts in State or local law. The disposition of all wolves (live or dead) or their parts taken as part of a Service-authorized management activity must follow provisions in Service-approved management plans or interagency agreements or procedures approved by the Service on a case- by-case basis. (x) As determined by the Service to be appropriate, the Service or any agent so authorized by the Service may capture, kill, subject to genetic testing, place in captivity, euthanize, or return to the wild (if found to be a pure Mexican wolf) any feral wolf-like animal, feral wolf hybrid, or feral dog found within the Mexican Wolf Experimental Population Area that shows physical or behavioral evidence of hybridization with other canids, such as domestic dogs or coyotes; being an animal raised in captivity, other than as part of a Service-approved wolf recovery program; or being socialized or habituated to humans. [[Page 191]] (xi) The United States Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services (WS) division will discontinue use of M-44's and choking-type snares in ``occupied Mexican wolf range'' [see definition in paragraph (k)(15) of this section]. The WS division may restrict or modify other predator control activities pursuant to a cooperative management agreement or a conference between the Service and the WS division. (xii) You may harass or take a Mexican wolf in self defense or defense of the lives of others, provided that you report the harassment or take within 24 hours to the Service's Mexican Wolf Recovery Coordinator or a designated representative of the Service. If the Service or an authorized agency determines that a wolf presents a threat to human life or safety, the Service or the authorized agency may kill it, capture and euthanize it, or place it in captivity. (xiii) Intentional taking of any wolf in the Mexican Wolf Experimental Population Area, except as described above, is prohibited. The Service encourages those authorized to take wolves to use nonlethal means when practicable and appropriate. (4) You must not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or wolf part from the experimental population except as authorized in this rule or by a valid permit issued by the Service under Sec. 17.32. If you kill or injure a wolf or find a dead or injured wolf or wolf parts, you must not disturb them (unless instructed to do so by an authorized agent of the Service), you must minimize your disturbance of the area around them, and you must report the incident to the Service's Mexican Wolf Recovery Coordinator or a designated representative of the Service within 24 hours. (5) You must not attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this rule. (6) No land use restrictions will be imposed on private lands for Mexican wolf recovery without the concurrence of the landowner. (7) No land use restrictions will be imposed on tribal reservation lands for Mexican wolf recovery without the concurrence of the tribal government. (8) On public lands, the Service and cooperating agencies may temporarily restrict human access and ``disturbance-causing land use activities'' [see definition in paragraph (k)(15) of this section] within a 1-mile radius around release pens when wolves are in them, around active dens between March 1 and June 30, and around active wolf ``rendezvous sites'' [see definition in paragraph 17.84(k)(15) of this section] between June 1 and September 30, as necessary. (9) The two designated wolf recovery areas and the experimental population area for Mexican wolves classified as a nonessential experimental population by this rule are described in the following subsections. Both designated wolf recovery areas are within the subspecies' probable historic range and are wholly separate geographically from the current range of any known Mexican wolves or other gray wolves. (i) The Blue Range Wolf Recovery Area includes all of the Apache National Forest and all of the Gila National Forest in east-central Arizona and west-central New Mexico (Figure 1). Initial releases of captive-raised Mexican wolves will take place, generally as described in our Preferred Alternative in the FEIS on Mexican wolf reintroduction, within the Blue Range Wolf Recovery Area ``primary recovery zone'' [see definition in paragraph (k)(15) of this section]. This is the area within the Apache National Forest bounded on the north by the Apache- Greenlee County line; on the east by the Arizona-New Mexico state line; on the south by the San Francisco River (eastern half) and the southern boundary of the Apache National Forest (western half); and on the west by the Greenlee-Graham County line (San Carlos Apache Reservation boundary). The Service will allow the wolf population to expand into the Blue Range Wolf Recovery Area ``secondary recovery zone'' [see definition in paragraph (k)(15) of this section], which is the remainder of the Blue Range Wolf Recovery Area not in the primary recovery zone. [[Page 192]] [GRAPHIC] [TIFF OMITTED] TR12JA98.002 (ii) The White Sands Wolf Recovery Area in south-central New Mexico includes all of the White Sands Missile Range; the White Sands National Monument; the San Andres National Wildlife Refuge; and the area adjacent and to the west of the Missile Range bounded on the south by the southerly [[Page 193]] boundary of the USDA Jornada Experimental Range and the northern boundary of the New Mexico State University Animal Science Ranch, on the west by the New Mexico Principal Meridian, on the north by the Pedro Armendaris Grant boundary and the Sierra-Socorro County line, and on the east by the western boundary of the Missile Range (Figure 2). This is the back-up reintroduction area, to be used only if later determined to be both necessary and feasible in accordance with the Preferred Alternative as set forth in the FEIS on Mexican wolf reintroduction. If this area is used, initial releases of captive-raised wolves would take place within the White Sands Wolf Recovery Area primary recovery zone. This is the area within the White Sands Missile Range bounded on the north by the road from the former Cain Ranch Head quarters to Range Road 16, Range Road 16 to its intersection with Range Road 13, Range Road 13 to its intersection with Range Road 7; on the east by Range Road 7; on the south by Highway 70; and on the west by the Missile Range boundary. The Service would allow the wolf population to expand into the White Sands Wolf Recovery Area secondary recovery zone, which is the remainder of the White Sands Wolf Recovery Area not in the primary recovery zone. [[Page 194]] [GRAPHIC] [TIFF OMITTED] TR12JA98.003 (iii) The boundaries of the Mexican Wolf Experimental Population Area are the portion of Arizona lying north of Interstate Highway 10 and south of Interstate Highway 40; the portion of New Mexico lying north of Interstate Highway 10 in the west, north of the New Mexico-Texas boundary in the [[Page 195]] east, and south of Interstate Highway 40; and the portion of Texas lying north of United States Highway 62/180 and south of the Texas-New Mexico boundary (Figure 3). The Service is not proposing wolf reestablishment throughout this area, but only within the Blue Range Wolf Recovery Area, and possibly later in the White Sands Wolf Recovery Area, respectively described in paragraphs (k)(9) (i) and (ii) of this section. If a member of the nonessential experimental population is captured inside the Mexican Wolf Experimental Population Area, but outside the designated wolf recovery areas, it will be re-released within the recovery area, put into the captive population, or otherwise managed according to provisions of a Service-approved management plan or action. If a wolf is found in the United States outside the boundaries of the Mexican Wolf Experimental Population Area (and not within any other wolf experimental population area) the Service will presume it to be of wild origin with full endangered status (or threatened in Minnesota) under the Act, unless evidence, such as a radio collar, identification mark, or physical or behavioral traits (see paragraph (k)(3)(x) of this section), establishes otherwise. If such evidence exists, the Service or an authorized agency will attempt to promptly capture the wolf and re- release it within the recovery area, put it into the captive population, or carry out any other management measure authorized by this rule or a Service-approved management plan. Such a wolf is otherwise not subject to this rule outside the designated Mexican Wolf Experimental Population Area. [[Page 196]] [GRAPHIC] [TIFF OMITTED] TR12JA98.004 (10) If Mexican wolves of the experimental population occur on public lands outside the designated wolf recovery area(s), but within the Mexican Wolf Experimental Population Area, the Service or an authorized agency will attempt to capture any radio-collared lone wolf and any lone wolf or [[Page 197]] member of an established pack causing livestock ``depredations'' [see definition in paragraph (k)(15) of this section]. The agencies will not routinely capture and return pack members that make occasional forays onto public land outside the designated wolf recovery area(s) and uncollared lone wolves on public land. However, the Service will capture and return to a recovery area or to captivity packs from the nonessential experimental population that establish territories on public land wholly outside the designated wolf recovery area(s). (11) If any wolves move onto private land outside the designated recovery area(s), but within the Mexican Wolf Experimental Population Area, the Service or an authorized agency will develop management actions in cooperation with the landowner including capture and removal of the wolf or wolves if requested by the landowner. (12) If any wolves move onto tribal reservation land outside the designated recovery area(s), but within the Mexican Wolf Experimental Population Area, the Service or an authorized agency will develop management actions in cooperation with the tribal government including capture and removal of the wolf or wolves if requested by the tribal government. (13) The Service will evaluate Mexican wolf reintroduction progress and prepare periodic progress reports, detailed annual reports, and full evaluations after 3 and 5 years that recommend continuation, modification, or termination of the reintroduction effort. (14) The Service does not intend to change the ``nonessential experimental'' designation to ``essential experimental,'' ``threatened,'' or ``endangered'' and foresees no likely situation which would result in such changes. Critical habitat cannot be designated under the nonessential experimental classification, 16 U.S.C. 1539(j)(2)(C)(ii). (15) Definitions. Key terms used in this rule have the following definitions. Breeding pair means an adult male and an adult female wolf that have produced at least two pups during the previous breeding season that survived until December 31 of the year of their birth. Depredation means the confirmed killing or wounding of lawfully present domestic livestock by one or more wolves. The Service, WS, or other Service-authorized agencies will confirm cases of wolf depredation on domestic livestock. Disturbance-causing land use activity means any land use activity that the Service determines could adversely affect reproductive success, natural behavior, or survival of Mexican wolves. These activities may be temporarily restricted within a 1-mile radius of release pens, active dens, and rendezvous sites. Such activities may include, but are not limited to--timber or wood harvesting, management-ignited fire, mining or mine development, camping outside designated campgrounds, livestock drives, off-road vehicle use, hunting, and any other use or activity with the potential to disturb wolves. The following activities are specifically excluded from this definition-- (1) Legally permitted livestock grazing and use of water sources by livestock; (2) Livestock drives if no reasonable alternative route or timing exists; (3) Vehicle access over established roads to private property and to areas on public land where legally permitted activities are ongoing if no reasonable alternative route exists; (4) Use of lands within the national park or national wildlife refuge systems as safety buffer zones for military activities; (5) Prescribed natural fire except in the vicinity of release pens; and (6) Any authorized, specific land use that was active and ongoing at the time wolves chose to locate a den or rendezvous site nearby. Engaged in the act of killing, wounding, or biting livestock means to be engaged in the pursuit and grasping, biting, attacking, wounding, or feeding upon livestock that are alive. If wolves are observed feeding on a livestock carcass, you cannot assume that wolves killed the livestock because livestock can die from many causes and wolves will feed on carrion. Harass means ``intentional or negligent act or omission which creates the likelihood of injury to the wildlife by annoying it to such an extent as to [[Page 198]] significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering'' (50 CFR 17.3). This experimental population rule permits only ``opportunistic, noninjurious harassment'' (see definition below). Impact on game populations in ways which may inhibit further wolf recovery. The Service encourages states and tribes to define unacceptable impacts from wolf predation on game populations in Service- approved management plans. Until such time the term will mean the following--2 consecutive years with a cumulative 35 percent decrease in population or hunter harvest estimates for a particular species of ungulate in a game management unit or distinct herd segment compared to the pre-wolf 5-year average (unit or herd must contain average of greater than 100 animals). If wolf predation is shown to be a primary cause of ungulate population declines (greater than 50 percent of documented adult or young mortality), then wolves may be moved to reduce ungulate mortality rates and assist in herd recovery, but only in conjunction with application of other common, professionally acceptable, wildlife management techniques. Livestock means cattle, sheep, horses, mules, and burros or other domestic animals defined as livestock in State and Tribal wolf management plans approved by the Service. Occupied Mexican wolf range means an area of confirmed presence of resident breeding packs or pairs of wolves or area consistently used by at least one resident wolf over a period of at least one month. The Service must confirm or corroborate wolf presence. Exact delineation of the area will be described by: (1) 5-mile (8 km) radius around all locations of wolves and wolf sign confirmed as described above (nonradio-monitored); (2) 5-mile (8 km) radius around radio locations of resident wolves when fewer than 20 radio locations are available (for radio-monitored wolves only); or (3) 3-mile (4.8 km) radius around the convex polygon developed from more than 20 radio locations of a pack, pair, or single wolf acquired over a period of at least 6 months (for radio-monitored wolves). This definition applies only within the Mexican Wolf Experimental Population Area. Opportunistic, noninjurious harassment (see ``harass'') means as the wolf presents itself (for example, the wolf travels onto and is observed on private land or near livestock). This is the only type of harassment permitted by this rule. You cannot track, attract, search out, or chase a wolf and then harass it. Any harassment must not cause bodily injury or death to the wolf. The basic intent of harassment permitted by this rule is to scare wolves away from the immediate area. It is limited to approaching wolves and discharging firearms or other projectile launching devices in proximity to but not in the direction of wolves; throwing objects in the general direction of but not at wolves; or making any loud noise in proximity to wolves. Primary recovery zone means an area where the Service-- (1) Will release captive-raised Mexican wolves, (2) May return and re-release previously released Mexican wolves, (3) May release translocated wild-born Mexican wolves, and (4) Will actively support recovery of the reintroduced population. Problem wolves means wolves that-- (1) Have depredated lawfully present domestic livestock, (2) Are members of a group or pack (including adults, yearlings, and young-of-the-year) that were directly involved in livestock depredations, (3) Were fed by or are dependent upon adults involved with livestock depredations (because young animals will likely acquire the pack's livestock depredation habits), (4) Have depredated domestic animals other than livestock on private or tribal lands, two times in an area within one year, or (5) Are habituated to humans, human residences, or other facilities. Public land means land under administration of Federal agencies including, but not limited to the National Park Service, Bureau of Land Management, [[Page 199]] Fish and Wildlife Service, Forest Service, Department of Energy, and Department of Defense; and State-owned lands within the boundary of a designated wolf recovery area. All State-owned lands within the boundary of the experimental population area, but outside designated wolf recovery areas, will be subject to the provisions of this rule that apply to private lands. Rendezvous site means a gathering and activity area regularly used by a litter of young wolf pups after they have emerged from the den. Typically, the site is used for a period ranging from about one week to one month in the summer. Several sites may be used in succession. Secondary recovery zone means an area adjacent to a primary recovery zone in which the Service allows released wolves to disperse, where wolves captured in the wild for authorized management purposes may be translocated and released, and where managers will actively support recovery of the reintroduced population. Take means``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct'' (16 U.S.C. 1532(19)). Also, see definitions of ``harass'', ``opportunistic, noninjurious harassment'', and ``unavoidable and unintentional take.'' Unavoidable and unintentional take means accidental, unintentional take (see definition of ``Take'') which occurs despite reasonable care, is incidental to an otherwise lawful activity, and is not done on purpose. Examples would be striking a wolf with an automobile and catching a wolf in a trap outside of known occupied wolf range. Taking a wolf with a trap, snare, or other type of capture device within occupied wolf range (except as authorized in paragraph (k)(3)(ix) and (x) of this section) will not be considered unavoidable, accidental, or unintentional take, unless due care was exercised to avoid taking a wolf. Taking a wolf by shooting will not be considered unavoidable, accidental, or unintentional take. Shooters have the responsibility to be sure of their targets. Wolf recovery area means a designated area where managers will actively support reestablishment of Mexican wolf populations. (l) Grizzly bear (Ursus arctos). (1) Where does this special rule apply? The special rule in this paragraph (l) applies to the designated Bitterroot Grizzly Bear Experimental Population Area (Experimental Population Area), which is found within the species' historic range and is defined as follows: The boundaries of the Experimental Population Area are delineated by U.S. 93 from its junction with the Bitterroot River near Missoula, Montana, to Challis, Idaho; Idaho 75 from Challis to Stanley, Idaho; Idaho 21 from Stanley to Lowman, Idaho; State Highway 17 from Lowman to Banks, Idaho; Idaho 55 from Banks to New Meadows, Idaho; U.S. 95 from New Meadows to Coeur d'Alene, Idaho; Interstate 90 from Coeur d'Alene, Idaho, to its junction with the Clark Fork River near St. Regis, Montana; the Clark Fork River from its junction with Interstate 90 near St. Regis to its confluence with the Bitterroot River near Missoula, Montana; and the Bitterroot River from its confluence with the Clark Fork River to its junction with U.S. Highway 93, near Missoula, Montana (See map at the end of this paragraph (l)). (2) What is the legal status of the grizzly bear? (i) The grizzly bear is listed as ``threatened'' in Sec. 17.11 (h) and protected under this part. However, the grizzly bear population to which this paragraph (l) applies is considered a nonessential experimental population in accordance with section 10(j) of the Act. (ii) We have determined that, as of December 18, 2000, no grizzly bear population exists in the Experimental Population Area. We find, in accordance with Sec. 17.81 (b), that the reintroduction of grizzly bears as a nonessential experimental population, as defined in Sec. 17.81 (b), will further the conservation of the species and will be consistent with provisions of section 10(j) of the Act, which requires that an experimental population be geographically separate from other nonexperimental populations of the same species. We also find, in accordance with Sec. 17.81 (c)(2), that the experimental population of grizzly bears in the Experimental Population Area is not essential to the survival of the species in the wild. (iii) Grizzly bears within the Experimental Population Area and the Recovery Area will be accommodated [[Page 200]] through management provisions provided for in this paragraph (l) and through management plans and policies developed by the Citizen Management Committee (Committee; see paragraph (l)(6) of this section). After reintroduction, every grizzly bear found within the Experimental Population Area will be considered a member of the nonessential experimental population. (iv) In the conterminous United States, a grizzly bear that is outside the Experimental Population Area identified in paragraph (l)(1) of this section will be considered as threatened. (3) Where will grizzly bears be released, and where will recovery be emphasized? The Bitterroot Grizzly Bear Recovery Area identifies the area of recovery emphasis within the Experimental Population Area. The Recovery Area consists of the Selway-Bitterroot Wilderness and the Frank Church-River of No Return Wilderness (See map at the end of paragraph (l) of this section). All reintroductions will take place in the Selway- Bitterroot Wilderness unless it is later determined that reintroduction in the Frank Church-River of No Return Wilderness is appropriate. If, in the future, new wilderness areas are designated adjacent to the Recovery Area, the Committee may recommend to the Secretary their addition to the Recovery Area. The Secretary would have to amend this paragraph (l) to change the definition of the Recovery Area. (4) What activities are prohibited in the Experimental Population Area? (i) You may not take (see definition in Sec. 10.12 of this subchapter) any grizzly bear in the Experimental Population Area, except as provided in this paragraph (l). We may refer unauthorized take of grizzly bears to the appropriate authorities for prosecution. (ii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any grizzly bear or parts thereof that are taken from the Experimental Population Area or possessed in violation of the regulations in this paragraph (l) or in violation of applicable State wildlife conservation laws or regulations or the Act. (iii) You may not attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this paragraph (l). (5) What activities are allowed in the Experimental Population Area? (i) For purposes of this paragraph (l), except for persons engaged in hunting or shooting activities, you will not be in violation of the Act for ``unavoidable and unintentional take'' (see definition in paragraph (l)(16) of this section) of grizzly bears within the Experimental Population Area when such take is incidental to a legal activity and is not a result of negligent conduct lacking reasonable due care, and when due care was exercised to avoid the taking. Any taking must be reported within 24 hours to appropriate authorities as listed in paragraph (l)(5)(iii) of this section. Persons lawfully engaged in hunting or shooting activities must correctly identify their target before shooting in order to avoid illegally shooting a grizzly bear. Shooting a grizzly bear as a result of mistaking it for another species is considered a lack of reasonable due care. The act of taking a grizzly bear that is wrongly identified as another species may be referred to appropriate authorities for prosecution. (ii) Any person with a valid permit issued by us may take grizzly bears in the Experimental Population Area for scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes. Such permits must be consistent with the Act, with management plans adopted for the nonessential experimental population, and with applicable State wildlife conservation laws and regulations. (iii) You may take grizzly bears in the Experimental Population Area in self-defense or in defense of the lives of others. Such taking must be reported within 24 hours as to date, exact location, and circumstances to the Grizzly Bear Recovery Coordinator, University Hall, Room 309, University of Montana, Missoula, Montana 59812 (406-243-4903); or the Assistant Regional Director for Law Enforcement, Eastside Federal Complex, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503-231-6125); or the Assistant Regional Director for [[Page 201]] Law Enforcement, P.O. Box 25486, DFC, Denver, Colorado 80225 (303-236- 7540); and either the Idaho Department of Fish and Game, P.O. Box 25, Boise Idaho 83707 (208-334-3700); or the Montana Department of Fish, Wildlife and Parks, 1420 E. Sixth Avenue, Helena, Montana 59620 (406- 444-2535); and Nez Perce Tribal authorities (208-843-2253) (as appropriate). (iv) Livestock owners may obtain a permit from the Service, and the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, or appropriate Tribal authorities to harass (see definition in Sec. 17.3) grizzly bears found in the Experimental Population Area that are actually pursuing or killing livestock (to include permitting the use of livestock guard dogs around livestock to harass such grizzly bears). Prior to issuance of such a permit, authorized State, Federal, or Tribal officials must document pursuit or killing of livestock. All such harassment must be accomplished by an opportunistic, noninjurious method (see definition of ``opportunistic, noninjurious harassment'' in paragraph (l)(16) of this section) to the grizzly bear, and such harassment must be reported within 24 hours as to date, exact location, and circumstances to the authorities listed under paragraph (l)(5)(iii) of this section. (v) Livestock owners may obtain a permit from the Service, and the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks or appropriate Tribal authorities to take grizzly bears on private lands found in the Experimental Population Area in a manner other than harassment as defined in this paragraph (l), in order to protect livestock actually pursued or being killed on private property. Prior to issuance of such a permit, authorized State, Federal, or Tribal officials must document pursuit or killing of livestock. Any response protocol established by the Committee must have been satisfied and efforts to capture depredating grizzly bears by Service or State or Tribal wildlife agency personnel must have proven unsuccessful. All such taking must be reported as to date, exact location, and circumstances within 24 hours to the authorities listed under paragraph (l)(5)(iii) of this section. (vi) Any authorized employee or agent of the Service or appropriate State wildlife agency or Nez Perce Tribe who is lawfully designated for such purposes, when acting in the course of official duties, may take a grizzly bear from the wild in the Experimental Population Area if such action is necessary to: (A) Aid a sick, injured, or orphaned grizzly bear; (B) Dispose of a dead grizzly bear, or salvage a dead grizzly bear that may be useful for scientific study; (C) Take a grizzly bear that constitutes a demonstrable but nonimmediate threat to human safety or that is responsible for depredations to lawfully present domestic animals or other personal property, if otherwise eliminating such depredation or loss of personal property has not been possible, and after eliminating such threat by live-capturing and releasing the grizzly bear unharmed in the area defined in paragraph (l)(2) of this section or other areas approved by the Committee has been demonstrated not to be possible; (D) Move a grizzly bear for genetic management purposes; (E) Relocate grizzly bears within the Experimental Population Area to improve grizzly bear survival and recovery prospects; or (F) Relocate a grizzly bear to avoid conflict with human activities. However, grizzly bears in the Experimental Population Area will not be disturbed unless they demonstrate a real and imminent threat to human safety, livestock, or bees. Unless the Committee determines otherwise, this rule provides that on private lands outside the national forest boundary in the Bitterroot Valley, Montana (exclusion area), any human/grizzly conflicts will be considered unacceptable. Grizzly bear occupancy will be discouraged in the exclusion area, and grizzly bears found there will be captured and returned to the Recovery Area, or placed in captivity, or destroyed, depending on the history of each bear. If a grizzly bear enters the exclusion area, State and Federal wildlife management agencies will attempt to capture it immediately and notify the public of its presence as soon as possible. The public [[Page 202]] will be kept updated until the bear is caught. Further, any grizzly bear that occupies inhabited human settlement areas on private land within the Experimental Population Area that, in the judgment of the management agencies or Committee, presents a clear threat to human safety or whose behavior indicates that it may become habituated to humans, will be relocated or destroyed by management agencies. (6) How will local citizens be involved in the management of the Bitterroot nonessential experimental grizzly bear population? (i) The Secretary will establish a Citizen Management Committee for the Bitterroot grizzly bear experimental population and will authorize management implementation responsibility as described in paragraph (l)(9) of this section, in consultation with the Governors of Idaho and Montana. As soon as possible after the effective date of this rule, the Secretary will organize the Committee by requesting nominations of citizen members from the Governors of Idaho and Montana and the Nez Perce Tribe and nominations of agency members by represented agencies. (ii) The Committee will be composed of 15 members serving 6-year terms. Appointments may initially be of lesser terms to ensure staggered replacement. (A) Membership will consist of seven individuals appointed by the Secretary based upon the recommendations of the Governor of Idaho, five members appointed by the Secretary based upon the recommendations of the Governor of Montana, one member representing the Nez Perce Tribe appointed by the Secretary based on the recommendation of the Nez Perce Tribe, one member representing the Forest Service appointed by the Secretary of Agriculture, and one member representing the Fish and Wildlife Service appointed by the Secretary. Members recommended by the Governors of Idaho and Montana will be based on the recommendations of interested parties and will include at least one representative each from the appropriate State wildlife agencies. If either Governor or the Tribe fails to make recommendations within 60 days, the Secretary (or his/her designee) will accept recommendations from interested parties, and will make the appointments. (B) The Committee will consist of a cross-section of interests reflecting a balance of viewpoints, and members are to be selected for their diversity of knowledge and experience in natural resource issues, and for their commitment to collaborative decision-making. In their recommendations to the Secretary, the Governors of Idaho and Montana will attach written documentation of the qualifications of those nominated relating to their knowledge of, and experience in, natural resource issues and their commitment to collaborative decision-making. (C) Except for the representatives from Federal agencies, the Committee will be selected from communities within and adjacent to the Recovery and Experimental Population Areas. (D) The Secretary will fill vacancies as they occur with the appropriate members based on the recommendation of the appropriate Governor, the Nez Perce Tribe, or agency. (7) Will independent scientific information be readily available to the Committee? The Secretary will appoint two scientific advisors to the Committee as nonvoting members to attend all meetings of the Committee and to provide scientific expertise to the Committee. These scientific advisors will not be employed by Federal agencies involved in grizzly bear recovery. The Secretary will contact the Wildlife Society Chapters in Idaho and Montana and the Universities of Idaho and Montana for nominations and will select one wildlife scientist representing each State and appoint them as advisors to the Committee. (8) What is the overall mission of the Committee, and how will it operate? (i) The mission of the Committee is to facilitate recovery of the grizzly bear in the Bitterroot ecosystem by assisting in implementing the Bitterroot ecosystem chapter of the recovery plan (Bitterroot Ecosystem Recovery Plan Chapter--Supplement to the Grizzly Bear Recovery Plan, U.S. Fish and Wildlife Service, Missoula, Montana, 1996). The Committee will make recommendations to land and wildlife management agencies that it believes will lead to recovery of the grizzly [[Page 203]] bear. Decisions on, and implementation of, these recommendations are the responsibility of the land and wildlife management agencies. (ii) The Committee will meet a minimum of two times per year. These meetings will be open to the public. Additionally, the committee will provide reasonable public notice of meetings, produce and provide written minutes of meetings to interested persons, and involve the public in its decision-making process. This public participation process will allow members of the public and/or special interest groups to have input to Committee decisions and management actions. (9) What authority will the Committee have, and what will be its primary tasks? The Committee will have the authority and the responsibility to carry out the following functions: (i) Developing a process for obtaining the best biological, social, and economic data. This process will include an explicit mechanism for soliciting peer-reviewed, scientific articles on grizzly bears and their management, and holding periodic public meetings not less than every 2 years, in which qualified scientists may submit comments to and be questioned by the Committee. The two scientific advisors will lead this process. The Committee will base its decisions upon the best scientific and commercial data available. All decisions of the Committee, including components of its management plans, must lead toward recovery of the grizzly bear in the Bitterroot ecosystem and minimize social and economic impacts to the extent practicable within the context of the existing recovery goals for the species. (ii) Soliciting technical advice and guidance from outside experts. The scientific advisors will lead the development of an ongoing process to provide the Committee with the best scientific and commercial data available. The scientific advisors will provide this information in the form of peer-reviewed scientific articles on grizzly bears and their management, Committee meetings with presentations by scientific experts, and requests to State and Federal management agencies and the private sector for scientific expertise and advice. (iii) Implementing the Bitterroot Ecosystem Chapter of the Grizzly Bear Recovery Plan consistent with this paragraph (l). The Committee will develop recommendations on existing management plans and policies of land and wildlife management agencies, as necessary, for the management of grizzly bears in the Experimental Population Area. The Committee will make recommendations to land and wildlife management agencies regarding changes to plans and policies, but the final decision on implementation of those recommendations will be made by those agencies. If Committee recommendations require significant changes to existing plans and policy, and the agencies tentatively agree to accept those recommendations, then the requirements of the National Environmental Policy Act may apply. Such management plans and policies will be in accordance with applicable State and Federal laws. The Committee will give full consideration to Service comments and opinions and those of the Forest Service, Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, and the Nez Perce Tribe. (iv) Providing means by which the public may participate in, review, and comment on the decisions of the Committee. The Committee must thoroughly consider and respond to public input prior to making decisions. (v) Developing its internal processes, where appropriate, such as governance, decision-making, quorum, terms of members, officers, meeting schedules and location, public notice of meetings, and minutes. (vi) Requesting staff support from the Service, the Idaho Department of Fish and Game, Montana Department of Fish, Wildlife and Parks, Forest Service, other affected Federal agencies, and the Nez Perce Tribe, when necessary to perform administrative functions, and requesting reimbursement from us for non-Federal Committee members for costs associated with travel, lodging, and incidentals. (vii) Reviewing existing grizzly bear standards and guidelines used by the Forest Service and other agencies and landowners. The Committee will perform an annual review of grizzly bear [[Page 204]] mortalities and the number and location of bear/human conflicts. This review will be the primary mechanism to assess the adequacy of existing management techniques and standards. If the Committee deems such standards and guidelines inadequate for recovery of grizzly bears, the Committee may recommend changes to the Forest Service and other agencies and landowners. (viii) Developing grizzly bear guidance for proper camping and sanitation within the Experimental Population Area and making recommendations to land management agencies for adoption of such guidelines. Existing camping and sanitation procedures developed in other ecosystems with grizzly bears will serve as a basis for such guidelines. (ix) Developing a protocol for responding to grizzly/human encounters, livestock depredations, damage to lawfully present property, and other grizzly/human conflicts within the Experimental Population Area. Any response protocol developed by the Committee will have to undergo public comment and be revised as appropriate based on comments received. Any conflicts or mortalities associated with these activities will result in review by the Committee to determine what the Committee may do to help prevent future conflicts or mortalities. The Committee will recommend, as necessary, policy changes on trail restrictions for human safety to appropriate wildlife and land management agencies. (x) Recommending to the Service changes to recovery criteria, including mortality limits, population determinations, and other criteria for recovery as appropriate. (xi) Reviewing all human-caused grizzly bear mortalities to determine whether new measures for avoiding future occurrences are required and make recommendations on such measures to appropriate land and wildlife management agencies. If grizzly bear mortalities occur as a result of black bear hunting, the Committee will work with the State Fish and Game Departments in both Idaho and Montana to develop solutions to minimize the effects on grizzly bears of black bear hunting. (xii) Developing strategies to emphasize recovery inside the Recovery Area and to accommodate grizzly bears inside other areas of the Experimental Population Area. (A) Grizzly bears may range outside the Recovery Area because grizzly bear habitat exists throughout the Experimental Population Area. The Committee will not recommend that bears be disturbed or moved unless conflicts are both significant and cannot be corrected as determined by the Committee. This provision includes conflicts associated with livestock, for which the Committee will develop strategies to discourage grizzly bear occupancy in portions of the Experimental Population Area outside of the Recovery Area. (B) Unless the Committee determines otherwise, this rule provides that private land outside the national forest boundary in the Bitterroot Valley, Montana (exclusion area), is an area where any human/grizzly conflicts will be considered unacceptable. Grizzly bear occupancy will be discouraged in these areas, and grizzly bears will be captured and returned to the Recovery Area. If a grizzly bear enters the exclusion area, State and Federal wildlife management agencies will attempt to capture it immediately and notify the public of its presence as soon as possible. The public will be kept updated until the bear is caught. Further, any grizzly bear that occupies the exclusion area or other inhabited human settlement areas on private land within the Experimental Population Area that, in the judgment of the management agencies or Committee, presents a clear threat to human safety or whose behavior indicates that it may become habituated to humans, will be relocated or destroyed by management agencies. (xiii) Establishing standards for determining whether the experimental reintroduction has been successful and making recommendations on the inclusion of such standards in the Grizzly Bear Recovery Plan. These standards will be based on the best scientific and commercial information available and will reflect that, absent extraordinary circumstances, the success or failure of the program cannot be measured in [[Page 205]] fewer than 20 years. General guidelines for the standards by which failure will be measured include, but are not limited to, one or more of the following conditions: (A) If, within the number of years established by the Committee following initial reintroduction, no relocated grizzly bear remains within the Experimental Population Area and the reasons for emigration or mortality cannot be identified and/or remedied; or (B) If, within the number of years established by the Committee following initial reintroduction, no cubs of the year or yearlings exist and the relocated bears are not showing signs of successful reproduction as evidenced by no cubs of the year or yearlings. (xiv) Developing procedures for the expeditious issuance of permits described in paragraphs (l)(5)(iv) and (l)(5)(v) of this section, and making recommendations on such procedures to appropriate agencies. (xv) Developing 2-year work plans for the recovery effort for submittal to the Secretary pursuant to paragraph (l)(11)(i) of this section. (xvi) Establishing, based on the best available science, a refined interim recovery goal for the Bitterroot Ecosystem Chapter of the Grizzly Bear Recovery Plan and a final recovery goal when sufficient information is available and after grizzly bears are reintroduced and occupy suitable habitats in the Experimental Population Area. As this information becomes available, the Committee may recommend the recovery goal to the Secretary along with procedures for determining how this goal will be measured. The recovery goal for the Bitterroot grizzly bear population will be consistent with the habitat available within the Recovery Area. Additional adjacent areas of public land can be considered for contribution of suitable habitat when setting the recovery goal if additional land is shown to be necessary by the best scientific and commercial data available. Any recommendations for revised recovery goals developed by the Committee will require public review and our approval as appropriate prior to revision of any recovery plan. Grizzly bears outside the Recovery Area and within the Experimental Population Area can contribute to meeting the recovery goal if their long-term occupancy in such habitats outside the Recovery Area is reasonably certain. (10) What agencies will be responsible for day-to-day management activities? The Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, the Nez Perce Tribe, and the Forest Service, in coordination with us, will exercise day-to-day management responsibility within the Experimental Population Area in accordance with this paragaraph (l). The Service and these cooperating agencies will share management responsibility as per agreements with, and in consideration of, recommendations from the Committee. (11) How will progress of the Committee be monitored; and what process will be followed by the Secretary to resolve disputes over whether Committee actions are leading to recovery? (i) The Secretary or our representative on the Committee will review the Committee's 2-year work plans (see paragraph (l)(9)(xv) of this section). If the Secretary determines, through our representative on the Committee, that the Committee's decisions, work plans, or the implementation of those plans are not leading to the recovery of the grizzly bear within the Experimental Population Area or are not in compliance with this paragraph (l), our representative will ask the Committee to determine whether such a decision, plan, or implementation of a plan is leading to recovery and is in compliance with this paragraph (l). The Secretary, who retains final responsibility and authority for implementation of the Act, will review the Committee's determination, as provided in paragraphs (l)(11)(ii) through (iv) of this section, and then make a final determination. Should the Secretary find that a decision, work plan, or implementation of a plan by the Committee is inadequate for recovery of the grizzly bear or is not in compliance with this paragraph (l), the Secretary may assume lead management responsibility. (ii) The Service representative will consider Committee input before making any determination that Committee actions are not leading to recovery or [[Page 206]] are not in compliance with this paragraph (l). In the event that our representative on the Committee determines that the actions of the Committee are not leading to recovery of the Bitterroot grizzly bear population or are not in compliance with this paragraph (l), he or she will recommend to the Committee, based on the best scientific and commercial data available, alternative or corrective actions and provide 6 months for the Committee to accomplish those actions. Should the Committee reject these corrective actions, our representative will convene a Scientific Review Panel of three and will submit to the panel for review those Committee actions or decisions that he or she has determined are not leading to recovery or are not in compliance with this paragrpah (l). The Service representative will consider the views of all Committee members prior to convening a Scientific Review Panel. (iii) Members of the Scientific Review Panel will be professional scientists who have had no involvement with the Committee and are not employed by Federal agencies responsible for grizzly bear recovery efforts. The Secretary will select one member of the panel, and the Governors of Idaho and Montana in consultation with the Universities of Idaho and Montana (respectively), will select one panel member each. The Scientific Review Panel will review Committee actions or decisions, solicit additional information if necessary and, using the best scientific and commercial data available, make timely recommendations to the Committee as to whether Committee actions will lead to recovery of the grizzly bear in the Bitterroot ecosystem and are in compliance with paragraph (l). Examples of Committee actions, decisions, or lack of actions that can be submitted to the Scientific Review Panel include, but are not limited to, the following: sufficiency of public involvement in Committee activities; decisions involving sanitation and outreach activities; management of nuisance bears; adequacy of recommendations to land and wildlife management agencies; adequacy of Committee actions in addressing issues such as excessive human-caused grizzly bear mortality; and other actions important to recovery of the grizzly bear in the Bitterroot ecosystem. Committee compliance with paragraph (l) provides the basis for the recommendations of the Scientific Review Panel. (iv) If, after timely review, the Committee rejects the recommendations of the Scientific Review Panel, and our representative determines that Committee actions are not leading to recovery of the Bitterroot population, he or she will notify the Secretary. The Secretary will review the Panel's recommendations and determine the disposition of the Committee. (A) If the Secretary determines that the Committee should maintain lead management responsibility, the Committee will continue to operate according to the provisions of this paragraph (l) until the recovery objectives under paragraph (l)(9)(xvi) of this section or the Bitterroot Ecosystem Chapter of the Recovery Plan have been met and the Secretary has completed delisting. (B) If the Secretary decides to assume lead management responsibility, the Secretary will consult with the Governors of Idaho and Montana regarding that decision and further attempt to resolve the disagreement. If, after such consultation, the Secretary assumes lead management responsibility, the Secretary will publish a notice in the Federal Register explaining the rationale for the determination and notify the Governors of Idaho and Montana. The Committee will disband, and all requirements identified in this paragraph (l) regarding the Committee will be nullified. (12) How will the Bitterroot grizzly bear population be monitored? The reintroduced population will be monitored closely by Federal and State agencies in cooperation with the Committee for the duration of the recovery process, generally by use of radio telemetry as appropriate. (13) How will success or failure of the project be evaluated? The status of Bitterroot grizzly bear recovery will be reevaluated separately by the Committee and by the Secretary at 5-year intervals. This review will take into account the reproductive success of the grizzly bears released, human-caused [[Page 207]] mortality, movement patterns of individual bears, food habits, and overall health of the population and will recommend changes and improvements in the recovery program. Evaluating these parameters will assist in determining success or failure of the restoration. (14) What process will be followed if the Secretary determines the project has failed? (i) If, based on the criteria established by the Committee, the Secretary, after consultation with the Committee, the Governors of Idaho and Montana, the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife and Parks, and the Nez Perce Tribe, determines that the reintroduction has failed to produce a self- sustaining population, this paragraph (l) will not be used to reintroduce additional bears. Any remaining bears will retain their experimental status. (ii) Prior to declaring the experimental reintroduction a failure, we will investigate the probable causes of the failure. If the causes can be determined, and legal and reasonable remedial measures identified and implemented, we will consider continuing the recovery effort and maintaining the relocated population. If such reasonable measures cannot be identified and implemented, we will publish the results of our evaluation in the Federal Register in a proposed rulemaking to terminate the authority for additional experimental grizzly bear reintroductions in the Bitterroot ecosystem. (15) Will the legal status of grizzly bears in the Experimental Population Area change? We do not intend to change the ``nonessential experimental'' designation to ``essential experimental,'' ``threatened,'' or ``endangered'' and foresee no likely situation that would result in such changes. Critical habitat cannot be designated under the nonessential experimental classification, 16 U.S.C. 1539(j)(2)(C)(ii). (16) What are the definitions of key terms used in the special rule in this paragraph (l)? In addition to terms defined in Sec. 10.12 and 17.3 of this subchapter, the following terms apply to this paragraph (l): Accommodate means allowing grizzly bears that move outside the Recovery Area onto public land in the Experimental Population Area to remain undisturbed unless they demonstrate a real and imminent threat to human safety or livestock. Citizen Management Committee (Committee) means that Committee described in paragraph (l)(6) of this section. Current range means the area inside or within 10 miles of the recovery zone line of currently occupied grizzly bear recovery zones or any area where there is a grizzly bear population, as defined in this paragraph (l)(16). Exclusion area (Bitterroot Valley) means those private lands in Montana lying within the Bitterroot Experimental Population Area in the Bitterroot Valley outside the Bitterroot National Forest boundary south of U.S. Highway 12 to Lost Trail Pass and west of Highway 93. Experimental Population Area (Bitterroot Grizzly Bear Experimental Population Area) means that area delineated in paragraph (l)(1) of this section within which management plans developed as part of the Committee described in paragraph (l)(9) of this section will be in effect. This area includes the Recovery Area. The Experimental Population Area is within the historic range of the grizzly bear, but geographically separate from the current range of the grizzly bear. Geographically separate means separated by more than 10 miles. The term refers to ``wholly separate geographically'' in section 10(j)(2) of the Act. The Experimental Population Area and the recovery zone boundary of any existing grizzly bear population must be geographically separate. Grizzly bear population is defined by verified evidence within the previous 6 years which consists of photos within the area, verified tracks, or sightings by reputable scientists or agency personnel of at least two different female grizzly bears with young or one female with different litters in 2 different years in an area geographically separate from other grizzly bear populations. Verifiable evidence of females with young, to be geographically separate, would have to occur greater than [[Page 208]] 10 miles from the nearest nonexperimental grizzly bear population recovery zone boundary. Opportunistic, noninjurious harassment means harassment (see definition of ``harass'' in Sec. 17.3) that occurs when the grizzly bear presents itself (for example, the bear travels onto and is observed on private land or near livestock). This paragraph (l) permits only this type of harassment. You cannot track, attract, search out, or chase a grizzly bear and then harass it. Any harassment must not cause bodily injury or death to the grizzly bear. The intent of harassment permitted by this definitioin is to scare bears away from the immediate area. Recovery Area (Bitterroot Grizzly Bear Recovery Area) means the area of recovery emphasis within the Experimental Population Area, and is delineated in paragraph (l)(2) of this section. This area consists of the Selway-Bitterroot and Frank Church-River of No Return Wilderness areas. The Recovery Area is within the historic range of the species. Recovery emphasis means grizzly bear management decisions in the Recovery Area will favor bear recovery so that this area can serve as core habitat for survival, reproduction, and dispersal of the recovering population. Reintroduction of grizzly bears is planned to occur within the Selway-Bitterroot Wilderness portion of the Recovery Area unless it is later determined that reintroduction in the Frank Church-River of No Return Wilderness is appropriate. Unavoidable and unintentional take means accidental, unintentional take (see definition of take in Sec. 10.12 of this subchapter) that occurs despite reasonable care, is incidental to an otherwise lawful activity, and is not done on purpose. An example would be striking a grizzly bear with an automobile. Taking a grizzly bear by shooting will not be considered unavoidable and unintentional take. Shooters have the responsibility to be sure of their targets. [[Page 209]] [GRAPHIC] [TIFF OMITTED] TR17NO00.008 (m) Spotfin chub (=turquoise shiner) (Erimonax monachus), duskytail darter (Etheostoma percnurum), smoky madtom (Noturus baileyi). (1) Where are populations of these fishes designated as nonessential experimental populations (NEPs)? (i) The NEP area for these three fishes is within the species' probable historic ranges and is defined as follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County, Tennessee. (ii) None of the fishes named in paragraph (m) of this section are currently [[Page 210]] known to exist in the Tellico River or its tributaries. Based on the habitat requirements of these fishes, we do not expect them to become established outside the NEP area. However, if any individuals of any of the species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced populations. We would then amend paragraph (m)(1)(i) of this section and enlarge the boundaries of the NEP area to include the entire range of the expanded population. (iii) We do not intend to change the NEP designations to ``essential experimental,'' ``threatened,'' or ``endangered'' within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii). (2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (m)(3) of this section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the fishes identified in paragraph (m)(1) of this section. (ii) Any manner of take not described under paragraph (m)(3) of this section is prohibited in the NEP area. We may refer unauthorized take of these species to the appropriate authorities for prosecution. (iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (m)(2) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act. (iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (m)(2) of this section. (3) What take is allowed in the NEP area? Take of this species that is incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations, is allowed. (4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts. (5) Note: Map of the NEP area for spotfin chub, duskytail darter, smoky madtom, and yellowfin madtom (see paragraph (e) of this section) in Tennessee follows: [[Page 211]] [GRAPHIC] [TIFF OMITTED] TR08AP05.002 (n) Gray wolf (Canis lupus). (1) The gray wolves (wolf) identified in paragraphs (n)(9)(i) and (ii) of this section are nonessential experimental populations. These wolves will be managed in accordance with the respective provisions of this paragraph (n) in the boundaries of the nonessential experimental population (NEP) areas within any State or Tribal reservation that has a wolf management plan that has been approved by the Service, as further provided in this paragraph (n). Furthermore, any State or Tribe that has a wolf management plan approved [[Page 212]] by the Service can petition the Secretary of the Department of the Interior (DOI) to assume the lead authority for wolf management under this rule within the borders of the NEP areas in their respective State or reservation. (2) The Service finds that management of nonessential experimental gray wolves, as defined in this paragraph (n), will further the conservation of the species. (3) Definitions of terms used in paragraph (n) of this section follow: Active den site--A den or a specific above-ground site that is being used on a daily basis by wolves to raise newborn pups during the period April 1 to June 30. Breeding pair--An adult male and an adult female wolf that, during the previous breeding season, produced at least two pups that survived until December 31 of the year of their birth. Designated agent--Includes Federal agencies authorized or directed by the Service, and States or Tribes with a wolf management plan approved by the Director of the Service and with established cooperative agreements with us or Memoranda of Agreement (MOAs) approved by the Secretary of the DOI. Federal agencies, States, or Tribes may become ``designated agents'' through cooperative agreements with the Service whereby they agree to assist the Service to implement some portions of this rule. If a State or Tribe becomes a ``designated agent'' through a cooperative agreement, the Service will help coordinate their activities and retain authority for program direction, oversight, and guidance. States and Tribes with approved plans also may become ``designated agents'' by submitting a petition to the Secretary to establish an MOA under this rule. Once accepted by the Secretary, the MOA may allow the State or Tribe to assume lead authority for wolf management and to implement the portions of their State or Tribal plans that are consistent with this rule. The Service oversight (aside from Service law enforcement investigations) under an MOA is limited to monitoring compliance with this rule, issuing written authorizations for wolf take on reservations without approved wolf management plans, and an annual review of the State or Tribal program to ensure the wolf population is being maintained above recovery levels. Domestic animals--Animals that have been selectively bred over many generations to enhance specific traits for their use by humans, including use as pets. This includes livestock (as defined below) and dogs. Intentional harassment--The deliberate and pre-planned harassment of wolves, including by less-than-lethal munitions (such as 12-gauge shotgun rubber-bullets and bean-bag shells), that are designed to cause physical discomfort and temporary physical injury but not death. The wolf may have been tracked, waited for, chased, or searched out and then harassed. In the act of attacking--The actual biting, wounding, grasping, or killing of livestock or dogs, or chasing, molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding, grasping, or killing of livestock or dogs is likely to occur at any moment. Landowner--An owner of private land, or his/her immediate family members, or the owner's employees who are currently employed to actively work on that private land. In addition, the owner(s) (or his/her employees) of livestock that are currently and legally grazed on that private land and other lease-holders on that private land (such as outfitters or guides who lease hunting rights from private landowners), are considered landowners on that private land for the purposes of this regulation. Private land, under this regulation, also includes all non- Federal land and land within Tribal reservations. Individuals legally using Tribal lands in States with approved plans are considered landowners for the purposes of this rule. ``Landowner'' in this regulation includes legal grazing permittees or their current employees on State, county, or city public or Tribal grazing lands. Livestock--Cattle, sheep, horses, mules, goats, domestic bison, and herding and guarding animals (llamas, donkeys, and certain breeds of dogs commonly used for herding or guarding livestock). Livestock excludes dogs that are not being used for livestock guarding or herding. [[Page 213]] Non injurious--Does not cause either temporary or permanent physical damage or death. Opportunistic harassment--Harassment without the conduct of prior purposeful actions to attract, track, wait for, or search out the wolf. Private land--All land other than that under Federal Government ownership and administration and including Tribal reservations. Problem wolves--Wolves that have been confirmed by the Service or our designated agent(s) to have attacked or been in the act of attacking livestock or dogs on private land or livestock on public land within the past 45 days. Wolves that we or our designated agent(s) confirm to have attacked any other domestic animals on private land twice within a calendar year are considered problem wolves for purposes of agency wolf control actions. Public land--Federal land such as that administered by the National Park Service, Service, Bureau of Land Management, USDA Forest Service, Bureau of Reclamation, Department of Defense, or other agencies with the Federal Government. Public land permittee--A person or that person's employee who has an active, valid Federal land-use permit to use specific Federal lands to graze livestock, or operate an outfitter or guiding business that uses livestock. This definition does not include private individuals or organizations who have Federal permits for other activities on public land such as collecting firewood, mushrooms, antlers, Christmas trees, or logging, mining, oil or gas development, or other uses that do not require livestock. In recognition of the special and unique authorities of Tribes and their relationship with the U.S. Government, for the purposes of this rule, the definition includes Tribal members who legally graze their livestock on ceded public lands under recognized Tribal treaty rights. Remove--Place in captivity, relocate to another location, or kill. Research--Scientific studies resulting in data that will lend to enhancement of the survival of the gray wolf. Rule--Federal regulations--``This rule'' or ``this regulation'' refers to this final NEP regulation; ``1994 rules'' refers to the 1994 NEP rules (50 CFR 17.84(i)); and ``4(d) rule'' refers to the 2003 special 4(d) regulations for threatened wolves in the Western DPS (50 CFR 17.40(n)), outside of the experimental population areas. Unacceptable impact--State or Tribally-determined decline in a wild ungulate population or herd, primarily caused by wolf predation, so that the population or herd is not meeting established State or Tribal management goals. The State or Tribal determination must be peer- reviewed and reviewed and commented on by the public, prior to a final determination by the Service that an unacceptable impact has occurred, and that wolf removal is not likely to impede wolf recovery. Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage caused by a wolf bite. (4) Allowable forms of take of gray wolves. The following activities, only in the specific circumstances described under this paragraph (n)(4), are allowed: opportunistic harassment; intentional harassment; take on private land; take on public land; take in response to impacts on wild ungulate populations; take in defense of human life; take to protect human safety; take by designated agents to remove problem wolves; incidental take; take under permits; take per authorizations for employees of designated agents; and take for research purposes. Other than as expressly provided in this rule, all other forms of take are considered a violation of section 9 of the Act. Any wolf or wolf part taken legally must be turned over to the Service unless otherwise specified in this paragraph (n). Any take of wolves must be reported as outlined in paragraph (n)(6) of this section. (i) Opportunistic harassment. Anyone may conduct opportunistic harassment of any gray wolf in a non-injurious manner at any time. Opportunistic harassment must be reported to the Service or our designated agent(s) within 7 days as outlined in paragraph (n)(6) of this section. (ii) Intentional harassment. After we or our designated agent(s) have confirmed wolf activity on private land, on [[Page 214]] a public land grazing allotment, or on a Tribal reservation, we or our designated agent(s) may issue written take authorization valid for not longer than 1 year, with appropriate conditions, to any landowner or public land permittee to intentionally harass wolves. The harassment must occur in the area and under the conditions as specifically identified in the written take authorization. (iii) Take by landowners on their private land. Landowners may take wolves on their private land in the following two additional circumstances: (A) Any landowner may immediately take a gray wolf in the act of attacking livestock or dogs on their private land, provided the landowner provides evidence of livestock or dogs recently (less than 24 hours) wounded, harassed, molested, or killed by wolves, and we or our designated agent(s) are able to confirm that the livestock or dogs were wounded, harassed, molested, or killed by wolves. The carcass of any wolf taken and the area surrounding it should not be disturbed in order to preserve physical evidence that the take was conducted according to this rule. The take of any wolf without such evidence of a direct and immediate threat may be referred to the appropriate authorities for prosecution. (B) A landowner may take wolves on his/her private land if we or our designated agent issued a ``shoot-on-sight'' written take authorization of limited duration (45 days or less), and if: (1) This landowner's property has had at least one depredation by wolves on livestock or dogs that has been confirmed by us or our designated agent(s) within the past 30 days; and (2) We or our designated agent(s) have determined that problem wolves are routinely present on that private property and present a significant risk to the health and safety of other livestock or dogs; and (3) We or our designated agent(s) have authorized agency lethal removal of problem wolves from that same property. The landowner must conduct the take in compliance with the written take authorization issued by the Service or our designated agent(s). (iv) Take on public land. Any livestock producer and public land permittee (see definitions in paragraph (n)(3) of this section) who is legally using public land under a valid Federal land-use permit may immediately take a gray wolf in the act of attacking his/her livestock on his/her allotment or other area authorized for his/her use without prior written authorization, provided that producer or permittee provides evidence of livestock recently (less than 24 hours) wounded, harassed, molested, or killed by wolves, and we or our designated agent(s) are able to confirm that the livestock were wounded, harassed, molested, or killed by wolves. The carcass of any wolf taken and the area surrounding it should not be disturbed, in order to preserve physical evidence that the take was conducted according to this rule. The take of any wolf without such evidence may be referred to the appropriate authorities for prosecution. (A) At our or our designated agent(s)' discretion, we or our designated agent(s) also may issue a shoot-on-sight written take authorization of limited duration (45 days or less) to a public land grazing permittee to take problem wolves on that permittee's active livestock grazing allotment if: (1) The grazing allotment has had at least one depredation by wolves on livestock that has been confirmed by us or our designated agent(s) within the past 30 days; and (2) We or our designated agent(s) have determined that problem wolves are routinely present on that allotment and present a significant risk to the health and safety of livestock; and (3) We or our designated agent(s) have authorized agency lethal removal of problem wolves from that same allotment. (B) The permittee must conduct the take in compliance with the written take authorization issued by the Service or our designated agent(s). (v) Take in response to wild ungulate impacts. If wolf predation is having an unacceptable impact on wild ungulate populations (deer, elk, moose, bighorn sheep, mountain goats, antelope, or bison) as determined by the respective State or Tribe, a State or Tribe may lethally remove the wolves in question. [[Page 215]] (A) In order for this provision to apply, the States or Tribes must prepare a science-based document that: (1) Describes what data indicate that ungulate herd is below management objectives, what data indicate the impact by wolf predation on the ungulate population, why wolf removal is a warranted solution to help restore the ungulate herd to State or Tribal management objectives, the level and duration of wolf removal being proposed, and how ungulate population response to wolf removal will be measured; (2) Identifies possible remedies or conservation measures in addition to wolf removal; and (3) Provides an opportunity for peer review and public comment on their proposal prior to submitting it to the Service for written concurrence. (B) We must determine that such actions are scientifically-based and will not reduce the wolf population below recovery levels before we authorize lethal wolf removal. (vi) Take in defense of human life. Any person may take a gray wolf in defense of the individual's life or the life of another person. The unauthorized taking of a wolf without demonstration of an immediate and direct threat to human life may be referred to the appropriate authorities for prosecution. (vii) Take to protect human safety. We or our designated agent(s) may promptly remove any wolf that we or our designated agent(s) determines to be a threat to human life or safety. (viii) Take of problem wolves by Service personnel or our designated agent(s). We or our designated agent(s) may carry out harassment, non lethal control measures, relocation, placement in captivity, or lethal control of problem wolves. To determine the presence of problem wolves, we or our designated agent(s) will consider all of the following: (A) Evidence of wounded livestock, dogs, or other domestic animals, or remains of livestock, dogs, or domestic animals that show that the injury or death was caused by wolves, or evidence that wolves were in the act of attacking livestock, dogs, or domestic animals; (B) The likelihood that additional wolf-caused losses or attacks may occur if no control action is taken; (C) Evidence of unusual attractants or artificial or intentional feeding of wolves; and (D) Evidence that animal husbandry practices recommended in approved allotment plans and annual operating plans were followed. (ix) Incidental take. Take of a gray wolf is allowed if the take is accidental and incidental to an otherwise lawful activity and if reasonable due care was practiced to avoid such take, and such take is reported within 24 hours. Incidental take is not allowed if the take is not accidental or if reasonable due care was not practiced to avoid such take, or it was not reported within 24 hours (we may allow additional time if access to the site of the take is limited), and we may refer such taking to the appropriate authorities for prosecution. Shooters have the responsibility to identify their target before shooting. Shooting a wolf as a result of mistaking it for another species is not considered accidental and may be referred to the appropriate authorities for prosecution. (x) Take under permits. Any person with a valid permit issued by the Service under Sec. 17.32, or our designated agent(s), may take wolves in the wild, pursuant to terms of the permit. (xi) Additional take authorization for agency employees. When acting in the course of official duties, any employee of the Service or our designated agent(s) may take a wolf or wolf-like canid for the following purposes: (A) Scientific purposes; (B) To avoid conflict with human activities; (C) To further wolf survival and recovery; (D) To aid or euthanize sick, injured, or orphaned wolves; (E) To dispose of a dead specimen; (F) To salvage a dead specimen that may be used for scientific study; (G) To aid in law enforcement investigations involving wolves; or (H) To prevent wolves or wolf-like canids with abnormal physical or behavioral characteristics, as determined by the Service or our designated [[Page 216]] agent(s), from passing on or teaching those traits to other wolves. (I) Such take must be reported to the Service within 7 days as outlined in paragraph (n)(6) of this section, and specimens are to be retained or disposed of only in accordance with directions from the Service. (xii) Take for research purposes. We may issue permits under Sec. 17.32, or our designated agent(s) may issue written authorization, for individuals to take wolves in the wild pursuant to approved scientific study proposals. Scientific studies should be reasonably expected to result in data that will lend to development of sound management of the gray wolf, and lend to enhancement of its survival as a species. (5) Federal land use. Restrictions on the use of any Federal lands may be put in place to prevent the take of wolves at active den sites between April 1 and June 30. Otherwise, no additional land-use restrictions on Federal lands, except for National Parks or National Wildlife Refuges, may be necessary to reduce or prevent take of wolves solely to benefit gray wolf recovery under the Act. This prohibition does not preclude restricting land use when necessary to reduce negative impacts of wolf restoration efforts on other endangered or threatened species. (6) Reporting requirements. Except as otherwise specified in paragraph (n) of this section or in a permit, any take of a gray wolf must be reported to the Service or our designated agent(s) within 24 hours. We will allow additional reasonable time if access to the site is limited. Report any take of wolves, including opportunistic harassment, to U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator (100 North Park, Suite 320, Helena, Montana 59601, 406-449- 5225 extension 204; facsimile 406-449-5339), or a Service-designated agent of another Federal, State, or Tribal agency. Unless otherwise specified in paragraph (n) of this section, any wolf or wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead wolves. (7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or part thereof from the experimental populations taken in violation of the regulations in paragraph (n) of this section or in violation of applicable State or Tribal fish and wildlife laws or regulations or the Act. (8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in this section. (9) The sites for these experimental populations are within the historic range of the species as designated in Sec. 17.84(i)(7): (i) The central Idaho NEP area is shown on Map 1. The boundaries of the NEP area are those portions of Idaho that are south of Interstate Highway 90 and west of Interstate 15, and those portions of Montana south of Interstate 90, Highways 93 and 12 from Missoula, Montana, west of Interstate 15. [[Page 217]] [GRAPHIC] [TIFF OMITTED] TR06JA05.000 (ii) The Yellowstone NEP is shown on Map 2. The boundaries of the NEP area are that portion of Idaho that is east of Interstate Highway 15; that portion of Montana that is east of Interstate Highway 15 and south of the Missouri River from Great Falls, Montana, to the eastern Montana border; and all of Wyoming. [[Page 218]] [GRAPHIC] [TIFF OMITTED] TR06JA05.001 (iii) All wolves found in the wild within the boundaries of these experimental areas are considered nonessential experimental animals. In the Western Gray Wolf Distinct Population Segment (Washington, Oregon, California, Nevada, Montana, Idaho, Wyoming, and Utah and Colorado north of Highway 50 and Interstate 70), any wolf that is outside an experimental area is considered threatened. Disposition of wolves outside the NEP areas may take any of the following courses: (A) Any wolf dispersing from the experimental population areas into other [[Page 219]] parts of the Western DPS will be managed under the special 4(d) rule for threatened wolves in the Western DPS (50 CFR 17.40(n)). (B) Any wolf originating from the experimental population areas and dispersing beyond the borders of the Western DPS may be managed by the wolf management regulations established for that area, or may be returned to the experimental population areas if it has not been involved in conflicts with people, or may be removed if it has been involved with conflicts with people. (10) Wolves in the experimental population areas will be monitored by radio-telemetry or other standard wolf population monitoring techniques as appropriate. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or our designated agent(s) and given appropriate care. Such an animal will be released back into its respective area as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity or euthanize it. (11) Memoranda of Agreement (MOAs). Any State or Tribe with gray wolves, subject to the terms of this paragraph (n), may petition the Secretary for an MOA to take over lead management responsibility and authority to implement this rule by managing the nonessential experimental gray wolves in that State or on that Tribal reservation, and implement all parts of their approved State or Tribal plan that are consistent with this rule, provided that the State or Tribe has a wolf management plan approved by the Secretary. (i) A State or Tribal petition for wolf management under an MOA must show: (A) That authority and management capability resides in the State or Tribe to conserve the gray wolf throughout the geographical range of all experimental populations within the State or within the Tribal reservation. (B) That the State or Tribe has an acceptable conservation program for the gray wolf, throughout all of the NEP areas within the State or Tribal reservation, including the requisite authority and capacity to carry out that conservation program. (C) A description of exactly what parts of the approved State or Tribal plan the State or Tribe intends to implement within the framework of this rule. (D) A description of the State or Tribal management progress will be reported to the Service on at least an annual basis so the Service can determine if State or Tribal management has maintained the wolf population above recovery levels and was conducted in full compliance with this rule. (ii) The Secretary will approve such a petition upon a finding that the applicable criteria are met and that approval is not likely to jeopardize the continued existence of the gray wolf in the Western DPS, as defined in Sec. 17.11(h). (iii) If the Secretary approves the petition, the Secretary will enter into an MOA with the Governor of that State or appropriate Tribal representative. (iv) An MOA for State or Tribal management as provided in this section may allow a State or Tribe to become designated agents and lead management of nonessential experimental gray wolf populations within the borders of their jurisdictions in accordance with the State's or Tribe's wolf management plan approved by the Service, except that: (A) The MOA may not provide for any form of management inconsistent with the protection provided to the species under this rule, without further opportunity for appropriate public comment and review and amendment of this rule; (B) The MOA cannot vest the State or Tribe with any authority over matters concerning section 4 of the Act (determining whether a species warrants listing); (C) The MOA may not provide for public hunting or trapping absent a finding by the Secretary of an extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved; and (D) In the absence of a Tribal wolf management plan or cooperative agreement, the MOA cannot vest a State [[Page 220]] with the authority to issue written authorizations for wolf take on reservations. The Service will retain the authority to issue these written authorizations until a Tribal wolf management plan is approved. (v) The MOA for State or Tribal wolf management must provide for joint law enforcement responsibilities to ensure that the Service also has the authority to enforce the State or Tribal management program prohibitions on take. (vi) The MOA may not authorize wolf take beyond that stated in the experimental population rules but may be more restrictive. (vii) The MOA will expressly provide that the results of implementing the MOA may be the basis upon which State or Tribal regulatory measures will be judged for delisting purposes. (viii) The authority for the MOA will be the Act, the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife Coordination Act (16 U.S.C. 661-667e), and any applicable treaty. (ix) In order for the MOA to remain in effect, the Secretary must find, on an annual basis, that the management under the MOA is not jeopardizing the continued existence of the gray wolf in the Western DPS. The Secretary or State or Tribe may terminate the MOA upon 90 days notice if: (A) Management under the MOA is likely to jeopardize the continued existence of the gray wolf in the Western DPS; or (B) The State or Tribe has failed materially to comply with this rule, the MOA, or any relevant provision of the State or Tribal wolf management plan; or (C) The Service determines that biological circumstances within the range of the gray wolf indicate that delisting the species is not warranted; or (D) The States or Tribes determine that they no longer want the wolf management authority vested in them by the Secretary in the MOA. (o) Spotfin chub (=turquoise shiner) (Erimonax monachus), boulder darter (Etheostoma wapiti). (1) Where are populations of these fishes designated as nonessential experimental populations (NEP)? (i) The NEP area for the boulder darter and the spotfin chub is within the species' historic ranges and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Lawrence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach. (ii) None of the fishes named in paragraph (o) of this section are currently known to exist in Shoal Creek or its tributaries. Based on the habitat requirements of these fishes, we do not expect them to become established outside the NEP area. However, if any individuals of either of the species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced populations. (iii) We do not intend to change the NEP designations to ``essential experimental,'' ``threatened,'' or ``endangered'' within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii). (2) What take is allowed in the NEP area? Take of these species that is accidental and incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations, is allowed. (3) What take of these species is not allowed in the NEP area? (i) Except as expressly allowed in paragraph (o)(2) of this section, all the provisions of Sec. 17.31(a) and (b) apply to the fishes identified in paragraph (o)(1) of this section. (ii) Any manner of take not described under paragraph (o)(2) of this section is prohibited in the NEP area. We may refer unauthorized take of these species to the appropriate authorities for prosecution. (iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (o)(3) of this section or in violation of the applicable State fish [[Page 221]] and wildlife laws or regulations or the Act. (iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (o)(3) of this section. (4) How will the effectiveness of these reintroductions be monitored? After the initial stocking of these two fish, we will monitor annually their presence or absence and document any spawning behavior or young-of-the-year fish that might be present. This monitoring will be conducted primarily by snorkeling or seining and will be accomplished by contracting with the appropriate species experts. We will produce annual reports detailing the stocking rates and monitoring activities that took place during the previous year. We will also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts. (5) Note: Map of the NEP area for spotfin chub and boulder darter in Tennessee and Alabama follows: [[Page 222]] [GRAPHIC] [TIFF OMITTED] TR08AP05.003 (p) Northern aplomado falcon (Falco femoralis septentrionalis). (1) The northern aplomado falcon (Falco femoralis septentrionalis) (falcon) population identified in paragraph (p)(9)(i) of this section is a nonessential experimental population (NEP). (2) No person may take this species, except as provided in paragraphs (p)(3) through (5) and (p)(10) of this section. [[Page 223]] (3) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under Sec. 17.32 may take falcons for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Endangered Species Act (Act); (4) A falcon may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity; and that such taking is reported within 24 hours, as provided under paragraph (p)(6) of this section. (5) Any employee of the Service, New Mexico Department of Game and Fish, or Arizona Game and Fish Department, who is designated for such purpose, or any person with a valid permit issued by the Service under 50 CFR 17.32, may, when acting in the course of official duties, take a falcon if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) Dispose of a dead specimen, or salvage a dead specimen that may be useful for scientific study; (iii) Move a bird within the NEP area for genetic purposes or to improve the health of the population; (iv) Relocate falcons that have moved outside the NEP area, by returning the falcon to the NEP area or moving it to a captive breeding facility. All captures and relocations from outside the NEP area will be conducted with the permission of the landowner(s) or appropriate land management agencies; or (v) Collect nesting data or band individuals. (6) Any taking pursuant to paragraphs (p)(3) through (5) of this section must be reported within 24 hours by contacting the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; (505) 346-2525. Upon contact, a determination will be made as to the disposition of any live or dead specimens. (7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any such species taken in violation of these regulations. (8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraphs (p)(2) and (p)(7) of this section. (9)(i) The boundaries of the designated NEP area are based on county borders and include the entire States of New Mexico and Arizona. The reintroduction area is within the historical range of the species in New Mexico. (ii) All falcons found in the wild within the boundaries of the NEP area after the first releases will be considered members of the NEP. A falcon occurring outside of the NEP area is considered endangered under the Act unless it is marked or otherwise known to be a member of the NEP. (iii) The Service has designated the NEP area to accommodate the potential future movements of a wild population of falcons. All released birds and their progeny are expected to remain in the NEP area due to the geographic extent of the designation. (10) The NEP will be monitored closely for the duration of the reintroduction program. Any bird that is determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent possible by Service and/or State or permitted Tribal wildlife personnel and given appropriate care. Such birds will be released back to the wild as soon as possible, unless physical or behavioral problems make it necessary to return them to a captive-breeding facility or they are euthanized if treatment would be unlikely to be effective. (11) The Service plans to evaluate the status of the NEP every 5 years to determine future management status and needs, with the first evaluation expected to be not more than 5 years after the first release of birds into the NEP area. All reviews will take into account the reproductive success and movement patterns of individuals released, food habits, and overall health [[Page 224]] of the population. This evaluation will include a progress report. [49 FR 35954, Sept. 13, 1984 and 50 FR 30194, July 24, 1985, as amended at 51 FR 41797, Nov. 19, 1986; 52 FR 29780, Aug. 11, 1987; 53 FR 29337, Aug. 4, 1988; 53 FR 37580, Sept. 27, 1988; 54 FR 43969, Oct. 30, 1989; 56 FR 41488, Aug. 21, 1991; 58 FR 5657, Jan. 22, 1993; 58 FR 52031, Oct. 6, 1993; 59 FR 42711, 42714, Aug. 18, 1994; 59 FR 60279, Nov. 22, 1994; 60 FR 18947, Apr. 13, 1995; 61 FR 11332, Mar. 20, 1996; 61 FR 54057, Oct. 16, 1996; 62 FR 38939, July 21, 1997; 63 FR 1763, Jan. 12, 1998; 63 FR 52837, Oct. 1, 1998; 65 FR 60886, Oct. 13, 2000; 65 FR 69637, Nov. 17, 2000; 66 FR 33916, June 26, 2001; 67 FR 52427, Aug. 12, 2002; 68 FR 26508, May 16, 2003; 70 FR 1306, Jan. 6, 2005; 70 FR 17924, Apr. 8, 2005; 71 FR 42314, July 26, 2006]