50 Cfr 17.84

§ 17.82

50 CFR Ch. I (10–1–01 Edition)

on whether the experimental population is, or is not, essential to the continued existence of the species in the
wild;
(3) Management restrictions, protective measures, or other special management concerns of that population,
which may include but are not limited
to, measures to isolate and/or contain
the experimental population designated in the regulation from natural
populations; and
(4) A process for periodic review and
evaluation of the success or failure of
the release and the effect of the release
on the conservation and recovery of
the species.
(d) The Fish and Wildlife Service
shall consult with appropriate State
fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in
developing and implementing experimental population rules. When appropriate, a public meeting will be conducted with interested members of the
public. Any regulation promulgated
pursuant to this section shall, to the
maximum extent practicable, represent
an agreement between the Fish and
Wildlife Service, the affected State and
Federal agencies and persons holding
any interest in land which may be affected by the establishment of an experimental population.
(e) Any population of an endangered
species or a threatened species determined by the Secretary to be an experimental population in accordance with
this subpart shall be identified by special rule in §§ 17.84—17.86 as appropriate
and separately listed in § 17.11(h) (wildlife) or § 17.12(h) (plants) as appropriate.
(f) The Secretary may designate critical habitat as defined in section
(3)(5)(A) of the Act for an essential experimental population as determined
pursuant to paragraph (c)(2) of this section. Any designation of critical habitat for an essential experimental population will be made in accordance with
section 4 of the Act. No designation of
critical habitat will be made for nonessential populations. In those situations where a portion or all of an essential experimental population overlaps
with a natural population of the species during certain periods of the year,
no critical habitat shall be designated

for the area of overlap unless implemented as a revision to critical habitat
of the natural population for reasons
unrelated to the overlap itself.
§ 17.82

Prohibitions.

Any population determined by the
Secretary to be an experimental population shall be treated as if it were listed as a threatened species for purposes
of establishing protective regulations
under section 4(d) of the Act with respect to such population. The Special
rules (protective regulations) adopted
for an experimental population under
§ 17.81 will contain applicable prohibitions, as appropriate, and exceptions
for that population.
§ 17.83

Interagency cooperation.

(a) Any experimental population designated for a listed species (1) determined pursuant to § 17.81(c)(2) of this
subpart not to be essential to the survival of that species and (2) not occurring within the National Park System
or the National Wildlife Refuge System, shall be treated for purposes of
section 7 (other than subsection (a)(1)
thereof) as a species proposed to be
listed under the Act as a threatened
species.
(b) Any experimental population designated for a listed species that either
(1) has been determined pursuant to
§ 17.81(c)(2) of this subpart to be essential to the survival of that species, of
(2) occurs within the National Park
System or the National Wildlife Refuge
System as now or hereafter constituted, shall be treated for purposes
of section 7 of the Act as a threatened
species. Notwithstanding the foregoing,
any biological opinion prepared pursuant to section 7(b) of the Act and any
agency determination made pursuant
to section 7(a) of the Act shall consider
any experimental and nonexperimental
populations to constitute a single listed species for the purposes of conducting the analyses under such sections.
§ 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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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
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:

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)
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 § 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
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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 dep-

redation 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
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,

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 § 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 def-

inition, 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
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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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
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 threeto five-year period after the actual
translocation of animals, to conduct
patrols and prevent illegal taking of

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 sur-

(iii) Prohibitions. Except as provided
in paragraph (d)(4)(iv), all of the provi-

rounding waters within the following
coordinates:
N. LATITUDE/W. LONGITUDE
33°27.8′/119°34.3′
33°20.5′/119°15.5′
33°13.5′/119°11.8′
33°06.5′/119°15.3′
33°02.8′/119°26.8′
33°08.8′/119°46.3′
33°17.2′/119°56.9′
33°30.9′/119°54.2′

(ii)
A
map
depicting
the
translocation zone is set forth below:

sions in § 17.21 (a) through (f) shall

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 § 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°26.9′ N. Latitude), except
for any area within the translocation
zone delineated in paragraph (d)(4)(i) of
this section.
(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 § 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 § 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 diverheld 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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
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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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
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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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) The yellowfin madtom
population identified in paragraph (4)
of this subsection is a nonessential experimental population.
(2) All prohibitions and exceptions
listed in §§ 17.31 and 17.32 apply to the
population identified in paragraph
(e)(4) of this section, except that it
may also be incidentally taken in accordance with applicable State laws
and regulations.
(3) Any violation of State law regulating the take of this species from the
population identified in paragraph
(e)(4) of this section will also be a violation of the Endangered Species Act.
(4) This experimental population of
the yellowfin madtom is found in the
North Fork Holston River watershed,
Washington, Smyth and Scott Counties, Virginia; South Fork Holston
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. The reintroduction site is
within the historic range of this species but it 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 it is unlikely
that they could move 100 river miles
through these large reservoirs, the pos-

sibility of this population contacting
extant wild populations is unlikely.
(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 § 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
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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 paragraphs (g)(9)(i)
through (vi) 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 Blackfooted Ferret Management Area/Coyote
Basin Primary Management Zone when
removal 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;
(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).

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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).
(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
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

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§ 17.84

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
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

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50 CFR Ch. I (10–1–01 Edition)

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 blackfooted 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-foot-

ed 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
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.
(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

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§ 17.84

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 blackfooted 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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.
(2) No person may take this species
in the wild in the experimental popu-

lation 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,

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 § 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 § 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
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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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.

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

(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) man-

ner 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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 a 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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 § 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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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.

(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.

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

(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
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 Servicedesignated 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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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:
(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 § 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 relo-

cations 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.

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

(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
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. § 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 § 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.

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

(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 § 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 ApacheGreenlee 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 bound-

aries 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.

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

(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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 (nonradiomonitored);
(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 wildborn 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,

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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 Stateowned 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 sup-

port 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 § 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 § 17.81 (b), that the reintroduction
of grizzly bears as a nonessential experimental population, as defined in § 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 § 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

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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 § 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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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
§ 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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 rec-

ommendations 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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 decisionmaking 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

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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

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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 dayto-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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

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 mor-

tality; 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

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

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 § 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

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§ 17.84

50 CFR Ch. I (10–1–01 Edition)

10 miles from the nearest nonexperimental grizzly bear population recovery zone boundary.
Opportunistic, noninjurious harassment
means harassment (see definition of
‘‘harass’’ in § 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 § 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.

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U.S. Fish and Wildlife Serv., Interior

§ 17.84

[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]

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