50 Cfr 17.84

Electronic Code of Federal Regulations:

Page 1 of 66

Home Page > Executive Branch > Code of Federal Regulations > Electronic Code of Federal Regulations

e-CFR Data is current as of March 16, 2011
Title 50: Wildlife and Fisheries
PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS
Subpart H—Experimental Populations
Browse Previous | Browse Next

§ 17.84 Special rules—vertebrates.
(a) Delmarva Peninsula fox squirrel ( Sciurus niger cinereus ). (1) The Delmarva Peninsula fox squirrel
population identified in paragraph (a)(6) of this section is a nonessential experimental population.
(2) No person shall take this species, except:
(i) For educational purposes, scientific purposes, the enhancement of propagation or survival of the
species, zoological exhibition, and other conservation purposes consistent with the Act and in
accordance with applicable State fish and wildlife conservation laws and regulations; or
(ii) Incidental to recreational activities.
(3) Any violation of applicable State fish and wildlife conservation laws or regulations with respect to the
taking of this species (other than incidental taking as described in paragraph (a)(2)(ii) of this section) will
also be a violation of the Endangered Species Act.
(4) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any such species taken in violation of these regulations or in violation of applicable State
fish and wildlife laws or regulations or the Endangered Species Act.
(5) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be
committed, any offense defined in paragraph (a)(2) or (4) of this section.
(6) The site for reintroduction of Delmarva Peninsula fox squirrel is totally isolated from existing
populations of this species. The nearest extant population is in the Chincoteague National Wildlife
Refuge approximately 50 miles from the reintroduction site. The reintroduction site is within the historic
range of this species and is located at the Assawoman Wildlife Area, Sussex County, Delaware.
Observation of previous releases have shown that fox squirrels have not traveled more than 2 or 3 miles
from release sites, therefore, the possibility of this population contacting extant wild populations is
unlikely.
(7) The reintroduced population will be checked periodically to determine its condition and the success
of the reintroduction. Of special concern will be the establishment of breeding pairs and the reproductive
success of the population. The movement patterns of the released individuals and the overall health of
the population will also be observed.
(b) Colorado squawfish ( Ptychocheilus lucius ) and woundfin ( Plagopterus argentissimus). (1) The
Colorado squawfish and woundfin populations identified in paragraph (b)(6) of this section, are
experimental, nonessential populations.
(2) No person shall take the species, except in accordance with applicable State or Tribal fish and

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 2 of 66

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:

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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 3 of 66

(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 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;

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 4 of 66

(ii) Dispose of a dead specimen, or salvage a dead specimen which may be useful for scientific study;
(iii) Take an animal that constitutes a demonstrable but non-immediate threat to human safety or that is
responsible for depredations to lawfully present domestic animals or other personal property, if it has not
been possible to otherwise eliminate such depredation or loss of personal property, Provided That such
taking must be done in a humane manner, and may involve killing or injuring the animal only if it has not
been possible to eliminate such threat by live capturing and releasing the specimen unharmed on the
refuge or Park;
(iv) Move an animal for genetic purposes.
(6) Any taking pursuant to paragraphs (c) (3) through (5) of this section must be immediately reported to
either the Refuge Manager, Alligator River National Wildlife Refuge, Manteo, North Carolina, telephone
919/473–1131, or the Superintendent, Great Smoky Mountains National Park, Gatlinburg, Tennessee,
telephone 615/436–1294. Either of these persons will determine disposition of any live or dead
specimens.
(7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any such species taken in violation of these regulations or in violation of applicable State
fish and wildlife laws or regulations or the Endangered Species Act.
(8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be
committed, any offense defined in paragraphs (c) (2) through (7) of this section.
(9)(i) The Alligator River reintroduction site is within the historic range of the species in North Carolina, in
Dare, Hyde, Tyrrell, and Washington Counties; because of its proximity and potential conservation
value, Beaufort County is also included in the experimental population designation.
(ii) The red wolf also historically occurred on lands that now comprise the Great Smoky Mountains
National Park. The Park encompasses properties within Haywood and Swain Counties in North
Carolina, and Blount, Cocke, and Sevier Counties in Tennessee. Graham, Jackson, and Madison
Counties in North Carolina, and Monroe County in Tennessee, are also included in the experimental
designation because of the close proximity of these counties to the Park boundary.
(iii) Except for the three island propagation projects and these small reintroduced populations, the red
wolf is extirpated from the wild. Therefore, there are no other extant populations with which the refuge or
Park experimental populations could come into contact.
(10) The reintroduced populations will be monitored closely for the duration of the project, generally
using radio telemetry as appropriate. All animals released or captured will be vaccinated against
diseases prevalent in canids prior to release. Any animal that is determined to be in need of special care
or that moves onto lands where the landowner requests their removal will be recaptured, if possible, by
Service and/or Park Service and/or designated State wildlife agency personnel and will be given
appropriate care. Such animals will be released back into the wild as soon as possible, unless physical
or behavioral problems make it necessary to return the animals to a captive-breeding facility.
(11) The status of the Alligator River National Wildlife Refuge project will be reevaluated by October 1,
1992, to determine future management status and needs. This review will take into account the
reproductive success of the mated pairs, movement patterns of individual animals, food habits, and
overall health of the population. The duration of the first phase of the Park project is estimated to be 10
to 12 months. After that period, an assessment of the reintroduction potential of the Park for red wolves
will be made. If a second phase of reintroduction is attempted, the duration of that phase will be better
defined during the assessment. However, it is presently thought that a second phase would last for 3
years, after which time the red wolf would be treated as a resident species within the Park. Throughout
these periods, the experimental and nonessential designation of the animals will remain in effect.
(d) Southern sea otter ( Enhydra lutris nereis ). (1) Definitions. The definitions set out in §17.3 apply to
this paragraph (d). For purposes of this paragraph—
(i) The term defense-related agency action means an agency action proposed to be carried out directly
by a military department, which does not have as its intended purpose the taking of southern sea otters.
For purposes of this definition, the United States Coast Guard is not a military department.
(ii) The term management zone means that area delineated in paragraph (d)(5)(i) of this section which

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 5 of 66

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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 6 of 66

translocation period and into the foreseeable future. Monitoring of the experimental population will begin
with the first release of translocated otters and will continue at least until either the new population
reaches the carrying capacity of the habitat and establishes an equilibrium density or the translocation is
determined to have failed. Monitoring will include intensive studies of changes in key components of the
nearshore ecosystem of the translocation zone including benthic organisms, kelp and finfish. Monitoring,
using ground and aerial observations, will also include intensive observation and documentation of the
movements, distribution, foraging and reproductive behavior, dispersal tendencies, growth and
reproductive rates, prey selection, and social interactions of sea otters in the experimental population.
Results of monitoring the experimental population and the parent population will also be compared and
evaluated.
(v) Protection. At least two law enforcement officers will be specifically assigned, at least for the initial
three- to five-year period after the actual translocation of animals, to conduct patrols and prevent illegal
taking of southern sea otters in the translocation zone. Cooperative enforcement arrangements will be
developed with other agencies having law enforcement activities in the area such as the U.S. Coast
Guard, National Marine Fisheries Service, California Department of Fish and Game, U.S. Navy, and
National Park Service to assist with protecting the experimental population.
(4) Translocation zone. (i) There is established a translocation zone for southern sea otters comprised of
San Nicolas Island, Begg Rock, and the surrounding waters within the following coordinates:
N. Latitude/W. Longitude

33°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:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 7 of 66

View or download PDF
(iii) Prohibitions. Except as provided in paragraph (d)(4)(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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 8 of 66

(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 diver-held devices; surface entangling nets; dip nets;
or other effective methods which may be developed for capturing sea otters in the future. Animals either
will be flown or moved by air-conditioned van to the release site.
(ii) Artificial reduction of fecundity for some sea otters within the experimental population. [Reserved]
(iii) Selective or random, non-lethal removal of members of the experimental population within the
translocation zone. [Reserved]
Containment measures will be administered by the Fish and Wildlife Service's Office of Sea Otter
Management and Coordination (OSOMC), in consultation and cooperation with the California
Department of Fish and Game. The OSOMC will work closely with State biologists to remove otters from
the management zone. Federal funding received through the normal appropriations process will be used
for research, protection, and containment of the experimental population. Grants to the State of
California under 16 U.S.C. 1535, may be employed to facilitate the measures outlined above. Public
donations for management and containment of the experimental population will be accepted with
assistance from the National Fish and Wildlife Foundation.
(7) Effects of translocation on recovery and interagency cooperation —(i) Background. The Recovery
Plan specifically describes the importance of translocation to the delisting of the southern sea otter
under the Endangered Species Act. The Plan states:

Sea otter translocation, if properly designed and implemented, should provide the necessary
foundation for ultimately obtaining the Recovery Plan's objective and restoring the southern
sea otter to a non-threatened status and maintaining OSP by: (i) Establishing a second colony
(or colonies) sufficiently distant from the present population such that a smaller portion of
southern sea otters will be jeopardized in the event of a large-scale oil spill, and (ii)
establishing a data base for identifying the optimal sustainable population level for the sea
otter.
Thus the translocation, and establishment of a population of sea otters has been identified by the
Recovery Plan as a critical action necessary for the recovery and delisting of the species. With regard to
the relationship of a successful translocation to the initiation of a delisting action under the Endangered
Species Act. The Plan states:

Delisting should be considered when the southern sea otter population is stable or increasing
at sustainable rates in a large enough area of their original habitat that only a small proportion
of the population 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 9 of 66

as the Service determines that the experimental population is established. Once established, other
factors such as the status of the parent population and completion of other recovery tasks will be
considered. If the experimental population becomes established and the other recovery tasks identified
in the recovery plan for the southern sea otter are attained, the southern sea otter will be eligible for
consideration for delisting in accordance with the requirements of 50 CFR 424.11(d). If a catastrophic
event were to significantly diminish the parent population, the size of the experimental population would
be a factor in determining whether or not the southern sea otter should remain listed as “threatened” or
reclassified as “endangered,” or if relisting should be considered if a delisting action had been
completed.
(iii) Effect on interagency cooperation. In determining the likelihood of jeopardy or non-jeopardy opinions
for proposed Federal actions that “may affect” southern sea otters, the probability of jeopardy
determinations will decrease proportionally for comparable projects with comparable types of impacts as
the experimental population grows from the point of being established toward the maximum number that
its habitat can support, i.e., carrying capacity. Thus, there is an inverse relationship between the size of
the experimental population (after being determined to be established) and the probability of jeopardy
determinations associated with section 7 consultations under the Endangered Species Act for projects
affecting either the parent or the experimental population. However, the status of the experimental
population is not the only factor to be considered in section 7 evaluations. The status of the parent
population, as well as the cumulative impacts, baseline level of threats, and effects of the action on
either population, will also be taken into account. In addition to considering the size of the experimental
population, the contribution that such population could make toward helping restore a damaged parent
population will also be a factor that will be considered during section 7 evaluations. For section 7
purposes, once the translocated otters become stabilized and enter into the initial growth and
reestablishment stage, but before meeting the criteria for an established population, the experimental
population will have an existence value that will be taken into consideration both quantitatively and
qualitatively. Its numbers will be added to those of the parent population for purposes of analyzing the
impacts of a Federal action on the southern sea otter population. Moreover, during the initial growth and
reestablishment stage, as part of the analysis of the impacts on the population as a whole, the impacts
of proposed Federal actions will be analyzed to clearly determine the relative risk to each of the two
populations (parent population and the experimental population).
(8) Determination of a failed translocation. The translocation would generally be considered to have
failed if one or more of the following conditions exists:
(i) If, after the first year following initiation of translocation or any subsequent year, no translocated otters
remain within the translocation zone and 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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 10 of 66

(vi) If, based on any one of these criteria, the Service concludes, after consultation with the affected
State and Marine Mammal Commission, that the translocation has failed to produce a viable, contained
experimental population, this rulemaking will be amended to terminate the experimental population, and
all otters remaining within the translocation zone will be captured and all healthy otters will be placed
back into the range of the parent population. Efforts to maintain the management zone free of otters will
be curtailed after all reasonable efforts have been made to remove all otters that are still within the
management zone at the time of the decision to terminate the translocated population. A joint StateService 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 theFederal Registerwith a proposed rulemaking to terminate the
experimental population.
(e) Yellowfin madtom ( Noturus flavipinnis ). (1) Where is the yellowfin madtom designated as a
nonessential experimental population (NEP)? We have designated three populations of this species as
NEPs: the North Fork Holston River Watershed NEP, the Tellico River NEP, and the French Broad River
and Holston River NEP.
(i) The North Fork Holston River Watershed NEP area is within the species' historic range and is defined
as follows: The North Fork Holston River watershed, Washington, Smyth, and Scott Counties, Virginia;
South Fork Holston River watershed upstream to Ft. Patrick Henry Dam, Sullivan County, Tennessee;
and the Holston River from the confluence of the North and South Forks downstream to the John Sevier
Detention Lake Dam, Hawkins County, Tennessee. This site is totally isolated from existing populations
of this species by large Tennessee River tributaries and reservoirs. As the species is not known to
inhabit reservoirs and because individuals of the species are not likely to move 100 river miles through
these large reservoirs, the possibility that this population could come in contact with extant wild
populations is unlikely.
(ii) The Tellico River NEP area is within the species' historic range and is defined as follows: The Tellico
River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4
kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County,
Tennessee. This species is not currently known to exist in the Tellico River or its tributaries. Based on its
habitat requirements, we do not expect this species to become established outside this NEP area.
However, if individuals of this population move upstream or downstream or into tributaries outside the
designated NEP area, we would presume that they came from the reintroduced population. We would
then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the
expanded population.
(iii) The French Broad River and Holston River NEP area is within the species' historic range and is
defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of
Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River;
then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee
Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.
This species is not known to exist in any of the tributaries to the free-flowing reaches of the French
Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below
the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat
requirements, we do not expect this species to become established outside this NEP area. However, if
individuals of this population move upstream or downstream or into tributaries outside the designated
NEP area, we would presume that they came from the reintroduced population. We would then amend
this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded
population.
(iv) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP areas. Additionally, we will not designate critical habitat for these NEPs, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP areas? (i) Except as expressly allowed in paragraph (e)(3)
of this section, all the prohibitions of §17.31(a) and (b) apply to the yellowfin madtom.
(ii) Any manner of take not described under paragraph (e)(3) of this section is prohibited in the NEP
area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 11 of 66

(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (e)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (e)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress
reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the yellowfin madtom in the Tellico River, Tennessee, appears
immediately following paragraph (m)(5) of this section.
(6) Note: Map of the NEP area for the yellowfin madtom in the French Broad River and Holston River,
Tennessee, appears immediately following paragraph (m)(7) of this section.
(f) Guam rail ( Rallus owstoni ). (1) The Guam rail population identified in paragraph (f)(7) of this section
is a nonessential experimental population.
(2) No person shall take this species, except:
(i) In accordance with a valid permit issued by the Service under §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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 12 of 66

committed, any offense defined in paragraphs (f) (2) through (5) of this section.
(7) The sites for introduction of Guam rails on Rota, Commonwealth of the Northern Mariana Islands, are
on an island separated from Guam by 50 kilometers of ocean. The last known observation of an
individual of this species occurred near the northern tip of Guam, which is closest to the island of Rota.
No intermingling of these populations will occur since this species has been extirpated in the wild on
Guam. The Rota release sites are of necessity outside the historic range of the Guam rail, as described
in this regulation, because its primary range has been unsuitably and irreversibly destroyed by the brown
tree snake.
(8) The nonessential experimental population on Rota will be checked periodically by staff of the
Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife and cooperating staff from
the University of Tennessee to determine dispersal patterns, mortality, and reproductive success. The
overall success of the releases and general health of the population will also be assessed.
(g) Black-footed ferret ( Mustela nigripes ). (1) The black-footed ferret populations identified in paragraph
(g)(9)(i) through (vii) of this section are nonessential experimental populations. We will manage each of
these populations in accordance with their respective management plans.
(2) No person may take this species in the wild in the experimental population area, except as provided
in paragraphs (g)(3), (4), (5), and (10) of this section.
(3) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under section
17.32 may take black-footed ferrets in the wild in the experimental population areas.
(4) Any employee or agent of the Service or appropriate State wildlife agency designated for such
purposes, acting in the course of official duties, may take a black-footed ferret in the wild in the
experimental population areas if such action is necessary:
(i) For scientific purposes;
(ii) To relocate a ferret to avoid conflict with human activities;
(iii) To relocate a ferret that has moved outside the Little Snake Black-footed Ferret Management
Area/Coyote Basin Primary Management Zone or the Rosebud Sioux Reservation Experimental
Population Area when that relocation is necessary to protect the ferret or is requested by an affected
landowner or land manager, or whose removal is requested pursuant to paragraph (g)(12) of this
section.
(iv) To relocate ferrets within the experimental population area to improve ferret survival and recovery
prospects;
(v) To relocate ferrets from the experimental population areas into other ferret reintroduction areas or
captivity;
(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).

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 13 of 66

(ii) Report such taking in the Conata Basin/Badlands experimental population area to the Field
Supervisor, Ecological Services, Fish and Wildlife Service, Pierre, South Dakota (telephone: 605/224–
8693).
(iii) Report such taking in the northcentral Montana experimental population area to the Field Supervisor,
Ecological Services, Fish and Wildlife Service, Helena, Montana (telephone: 406/449–5225).
(iv) Report such taking in the Aubrey Valley experimental population area to the Field Supervisor,
Ecological Services, Fish and Wildlife Service, Phoenix, Arizona (telephone: 602/640–2720).
(v) Report such taking in the northwestern Colorado/northeastern Utah experimental population area to
the appropriate Field Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Lakewood,
Colorado (telephone: 303/275–2370), or Salt Lake City, Utah (telephone: 801/524–5001).
(vi) Report such taking in the Cheyenne River Sioux Tribe Experimental Population Area to the Field
Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone
605/224–8693).
(vii) Report such taking in the Rosebud Sioux Reservation Experimental Population Area to the Field
Supervisor, Ecological Services, U.S. Fish and Wildlife Service, Pierre, South Dakota (telephone
605/224–8693).
(7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any ferret or part thereof from the experimental populations taken in violation of these
regulations or in violation of applicable State fish and wildlife laws or regulations or the Endangered
Species Act.
(8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to commit, any
offense defined in paragraphs (g)(2) and (7) of this section.
(9) The sites for reintroduction of black-footed ferrets are within the historical range of the species.
(i) We consider the Shirley Basin/Medicine Bow Management Area on the attached map of Wyoming to
be the core recovery area for this species in southeastern Wyoming. The boundaries of the nonessential
experimental population are that part of Wyoming south and east of the North Platte River within
Natrona, Carbon, and Albany Counties (see Wyoming map). All marked ferrets found in the wild within
these boundaries prior to the first breeding season following the first year of releases constituted the
nonessential experimental population during this period. All ferrets found in the wild within these
boundaries during and after the first breeding season following the first year of releases comprise the
nonessential experimental population, thereafter.
(ii) We consider the Conata Basin/Badlands Reintroduction Area on the attached map for South Dakota
to be the core recovery area for this species in southwestern South Dakota. The boundaries of the
nonessential experimental population area occur north of State Highway 44 and BIA Highway 2 east of
the Cheyenne River and BIA Highway 41, south of I–90, and west of State Highway 73 within
Pennington, Shannon, and Jackson Counties, South 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 blackfooted ferret occurring outside the experimental population area in South Dakota is considered as
endangered but may be captured for genetic testing. We will dispose of the captured animal in one of
the following ways if necessary:
(A) We may return an animal genetically related to the experimental population to the Reintroduction
Area or to a captive facility.
(B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated
to the experimental population in the captive-breeding program. If a landowner outside the experimental
population area wishes to retain black-footed ferrets on his property, we will develop a conservation
agreement or easement with the landowner.
(iii) We consider the Northcentral Montana Reintroduction Area shown on the attached map for Montana
to be the core recovery area for this species in northcentral Montana. The boundaries of the
nonessential experimental population are those parts of Phillips and Blaine Counties, Montana,
described as the area bounded on the north beginning at the northwest corner of the Fort Belknap

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 14 of 66

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 a captive facility. If a landowner outside the experimental population area wishes to retain blackfooted 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 15 of 66

thereafter. A black-footed ferret occurring outside the Experimental Population Area is initially
considered as endangered but may be captured for genetic testing. We will dispose of the captured
animal in one of the following ways if necessary:
(A) We may return an animal genetically related to the experimental population to the Reintroduction
Area or to a captive facility.
(B) Under an existing contingency plan, we will use up to nine black-footed ferrets genetically unrelated
to the experimental population in the captive-breeding program. If a landowner outside the experimental
population area wishes to retain black-footed ferrets on his property, we will develop a conservation
agreement or easement with the landowner.
(vi) The Cheyenne River Sioux Tribe Reintroduction Area is shown on the map of north-central South
Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential experimental
population area are the exterior boundaries of the Cheyenne River Sioux Reservation which includes all
of Dewey and Ziebach Counties, South Dakota. Any black-footed ferret found in the wild within these
counties will be considered part of the nonessential experimental population after the first breeding
season following the first year of black-footed ferret release. A black-footed ferret occurring outside the
Experimental Population Area in north-central South Dakota would initially be considered as endangered
but may be captured for genetic testing. When a ferret is found outside the Experimental Population
Area, the following may occur:
(A) If an animal is genetically determined to have originated from the experimental population, we may
return it to the reintroduction area or to a captive-breeding facility.
(B) If an animal is determined to be genetically unrelated to the experimental population, we will place it
in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in
the captive-breeding program.
(vii) The Rosebud Sioux Reservation Experimental Population Area is shown on the map of southcentral South Dakota at the end of paragraph (g) of this section. The boundaries of the nonessential
experimental population area include all of Gregory, Mellette, Todd, and Tripp Counties in South Dakota.
Any black-footed ferret found within these four counties will be considered part of the nonessential
experimental population after the first breeding season following the first year of black-footed ferret
release. A black-footed ferret occurring outside the nonessential experimental population area in southcentral South Dakota will initially be considered as endangered but may be captured for genetic testing.
If necessary, disposition of the captured animal may occur in the following ways:
(A) If an animal is genetically determined to have originated from the experimental population, we may
return it to the reintroduction area or to a captive-breeding facility.
(B) If an animal is determined to be genetically unrelated to the experimental population, we will place it
in captivity under an existing contingency plan. Up to nine black-footed ferrets may be taken for use in
the captive-breeding program.
(10) Monitoring the reintroduced populations will occur continually during the life of the project, including
the use of radio telemetry and other remote sensing devices, as appropriate. Vaccination of all released
animals will occur prior to release, as appropriate, to prevent diseases prevalent in mustelids. Any
animal that is sick, injured, or otherwise in need of special care may be captured by authorized
personnel of the Service or appropriate State wildlife agency or their agents and given appropriate care.
Such an animal may be released back to its appropriate reintroduction area or another authorized site as
soon as possible, unless physical or behavioral problems make it necessary to return the animal to
captivity.
(11) We will reevaluate the status of the experimental population within the first five years after the first
year of release of black-footed ferrets to determine future management needs. This review will take into
account the reproductive success and movement patterns of the individuals released into the area, as
well as the overall health of the experimental population and the prairie dog ecosystem in the above
described areas. We will propose reclassification of the black-footed ferret when we meet the
appropriate recovery objectives for the species.
(12) We will not include a reevaluation of the “nonessential experimental” designation for these
populations during our review of the initial five year reintroduction program. We do not foresee any likely
situation justifying alteration of the nonessential experimental status of these populations. Should any
such alteration prove necessary and it results in a substantial modification to black-footed ferret

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 16 of 66

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.

View or download PDF

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 17 of 66

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 18 of 66

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 19 of 66

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 20 of 66

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 21 of 66

View or download PDF
(h) Whooping crane (Grus americana). (1) The whooping crane populations identified in paragraphs (h)
(9)(i) through (iv) of this section are nonessential experimental populations (NEPs) as defined in §17.80.
(i) The only natural extant population of whooping cranes, known as the Aransas/Wood Buffalo National
Park population, occurs well west of the Mississippi River. This population nests in the Northwest
Territories and adjacent areas of Alberta, Canada, primarily within the boundaries of the Wood Buffalo
National Park, and winters along the Central Texas Gulf of Mexico coast at Aransas National Wildlife
Refuge.
(ii) No natural populations of whooping cranes are likely to come into contact with the NEPs set forth in
paragraphs (h)(9)(i) through (iv) of this section. Whooping cranes adhere to ancestral breeding grounds,
leaving little possibility that individuals from the extant Aransas/Wood Buffalo National Park population
will stray into the NEPs. Studies of whooping cranes have shown that migration is a learned rather than
an innate behavior.
(2) No person may take this species in the wild in the experimental population areas, except when such
take is accidental and incidental to an otherwise lawful activity, or as provided in paragraphs (h)(3) and
(4) of this section. Examples of otherwise lawful activities include, but are not limited to, oil and gas
exploration and extraction, aquacultural practices, agricultural practices, pesticide application, water
management, construction, recreation, trapping, or hunting, when such activities are in full compliance
with all applicable laws and regulations.
(3) Any person with a valid permit issued by the Fish and Wildlife Service (Service) under §17.32 may
take whooping cranes in the wild in the experimental population areas for educational purposes,

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 22 of 66

scientific purposes, the enhancement of propagation or survival of the species, and other conservation
purposes consistent with the ESA 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 areas 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 any of the areas identified in paragraphs (h)(9)(i)
through (iv) of this section, 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 whooping crane; or
(vi) Dispose of a dead specimen or salvage a dead specimen that 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, TX
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 whooping cranes in the NEPs identified in paragraphs (h)(9)(i)
through (iv) of this section;
(ii) If a clearly marked whooping crane from the NEPs identified in paragraphs (h)(9)(i) through (iv) of this
section wanders outside the designated NEP areas. In this situation, 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 (iv)
of this section will be considered nonessential experimental animals. Geographic areas the nonessential
experimental populations may inhabit are within the historic range of the whooping crane in the United
States and include the following:
(i) The entire State of Florida (the Kissimmee Prairie NEP). The reintroduction site is the Kissimmee
Prairie portions of Polk, Osceola, Highlands, and Okeechobee Counties. 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, and Utah, and the western half of the State of Wyoming
(the Rocky Mountain NEP).
(iii) That portion of the eastern contiguous United States that 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 (the Eastern
Migratory NEP). Whooping cranes within this population are expected to occur mostly within the States

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 23 of 66

of Wisconsin, Illinois, Indiana, Kentucky, Tennessee, Georgia, and Florida. 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.
(iv) The entire State of Louisiana (the Louisiana Nonmigratory NEP). The reintroduction site is the White
Lake Wetlands Conservation Area of southwestern Louisiana in Vermilion Parish. Current information
indicates that White Lake is the historic location of a resident nonmigratory population of whooping
cranes that bred and reared young in Louisiana. Whooping cranes within this nonmigratory population
are expected to occur mostly within the White Lake Wetlands Conservation Area and the nearby
wetlands in Vermilion Parish. The marshes and wetlands of southwestern Louisiana are expected to
receive occasional use by the cranes and may be used in the event of future population expansion.
(v) A map of all NEP areas in the United States for whooping cranes follows:

View or download PDF
(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 Service will reevaluate the status of the experimental populations 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.
(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 paragraph (i).
(2) The Service finds that reintroduction of nonessential experimental gray wolves, as defined in
paragraph (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) who are
legally using public land (Federal land and any other public lands designated in State and tribal wolf

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 24 of 66

management plans as approved by the Service) may harass any wolf in an opportunistic (the wolf
cannot be purposely attracted, tracked, waited for, or searched out, then harassed) and noninjurious (no
temporary or permanent physical damage may result) manner at any time, provided that such
harassment is nonlethal 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 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.
(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 has completed agency efforts to resolve the problem. Such
take must be reported 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) of this section, 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 that 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 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, nonlethal measures such as: Aversive
conditioning, nonlethal control, and/or translocating wolves. Such taking may be done when five or fewer
breeding pairs are established in an experimental population area. If the take results in a wolf mortality,
then evidence that the mortality was nondeliberate, accidental, nonnegligent, and unavoidable must be
provided. When six or more breeding pairs are established in the experimental population area, lethal
control of problem wolves or permanent placement in captivity will be authorized but only after other
methods to resolve livestock depredations have been exhausted. Depredations occurring on Federal
lands or other public lands identified in State or tribal wolf management plans and prior to six breeding
pairs becoming established in an experimental population area may result in capture and release of the
female wolf 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 in captivity). The
following three criteria will be used in determining the status of problem wolves within the nonessential
experimental population area:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 25 of 66

(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 that 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 of 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) of this section,
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 that 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 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 apply only to public lands
or 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 26 of 66

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 paragraph (i).
(7) The sites for reintroduction are 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.

View or download PDF
(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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 27 of 66

Great Falls, Montana, to the eastern Montana border; and all of Wyoming.

View or download PDF
(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
Service-designated agency. Disposition of the captured animal may take any of the following courses:
(A) If the animal was not involved in conflicts with humans and is determined likely to be an experimental
wolf, it will be returned to the reintroduction area.
(B) If the animal is determined likely to be an experimental wolf and was involved in conflicts with
humans as identified in the management plan for the closest experimental area, it may be relocated,
placed in captivity, or killed.
(C) If the animal is determined not likely to be an experimental animal, it will be managed according to
any Service-approved plans for that area or will be marked and released near its point of capture.
(D) If the animal is determined not to be a wild gray wolf or if the Service or agencies designated by the
Service determine the animal shows physical or behavioral evidence of hybridization with other canids,
such as domestic dogs or coyotes, or of being an animal raised in captivity, it will be returned to captivity
or killed.
(8) The reintroduced wolves will be monitored during the life of the project, including by the use of radio
telemetry and other remote sensing devices as appropriate. All released animals will be vaccinated
against diseases and parasites prevalent in canids, as appropriate, prior to release and during
subsequent handling. Any animal that is sick, injured, or otherwise in need of special care may be
captured by authorized personnel of the Service or Service-designated agencies and given appropriate

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 28 of 66

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 Service does not intend to reevaluate the “nonessential experimental” designation. The Service
does not foresee any likely situation that 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.
(j) California condor ( Gymnogyps californianus ). (1) The California condor ( Gymnogyps californianus )
population identified in paragraph (j)(8) of this section is a nonessential experimental population, and the
release of such population will further the conservation of the species.
(2) You must not take any California condor in the wild in the experimental population area except as
provided by this rule:
(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 relocations from outside the experimental population area will be coordinated with Service
Cooperators, and conducted with the permission of the landowner(s) or appropriate land management
agency(s).
(iv) To aid a sick, injured, or orphaned California condor;
(v) To salvage a dead specimen that may be useful for scientific study; or
(vi) To dispose of a dead specimen.
(5) Any taking pursuant to paragraphs (j)(2), (j)(4)(iv), (j)(4)(v), and (j)(4)(vi), of this section must be
reported as soon as possible to the Field Supervisor, U.S. Fish and Wildlife Service, Ecological
Services, Arizona Field Office, Phoenix, 2321 W. Royal Palm Road, Suite 103, Arizona (telephone
602/640–2720) who will determine the disposition of any live or dead specimens.
(6) You must not possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any California condor or part thereof from the experimental population taken in violation of
this paragraph (j) or in violation of applicable State or Tribal laws or regulations or the Act.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 29 of 66

(7) It is unlawful for you to attempt to commit, solicit another to commit, or cause to be committed, any
offense defined in paragraphs (j)(2) and (j)(6) of this section.
(8) The designated experimental population area of the California condor includes portions of three
states—Arizona, Nevada, and Utah. The southern boundary is Interstate Highway 40 in Arizona from its
junction with Highway 191 west across Arizona to Kingman; the western boundary starts at Kingman,
goes northwest on Highway 93 to Interstate Highway 15, continues northeasterly on Interstate Highway
15 in Nevada and Utah, to Interstate Highway 70 in Utah; where the northern boundary starts and goes
across Utah to Highway 191; where the eastern boundary starts and goes south through Utah until
Highway 191 meets Interstate Highway 40 in Arizona (See map at end of this paragraph (j)).
(i) All California condors released into the experimental population area, and their offspring, are to be
marked and visually identifiable by colored and coded patagial wing markers.
(ii) The Service has designated the experimental population area to accommodate the potential future
movements of a wild population of condors. All released condors and their progeny 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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 30 of 66

View or download PDF
(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 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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 31 of 66

(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 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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 32 of 66

(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 Serviceapproved 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.
(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 1mile 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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 33 of 66

(9) The two designated wolf recovery areas and the experimental population area for Mexican wolves
classified as a nonessential experimental population by this rule are described in the following
subsections. Both designated wolf recovery areas are within the subspecies' probable historic range and
are wholly separate geographically from the current range of any known Mexican wolves or other gray
wolves.
(i) The Blue Range Wolf Recovery Area includes all of the Apache National Forest and all of the Gila
National Forest in east-central Arizona and west-central New Mexico (Figure 1). Initial releases of
captive-raised Mexican wolves will take place, generally as described in our Preferred Alternative in the
FEIS on Mexican wolf reintroduction, within the Blue Range Wolf Recovery Area “primary recovery
zone” [see definition in paragraph (k)(15) of this section]. This is the area within the Apache National
Forest bounded on the north by the Apache-Greenlee County line; on the east by the Arizona-New
Mexico state line; on the south by the San Francisco River (eastern half) and the southern boundary of
the Apache National Forest (western half); and on the west by the Greenlee-Graham County line (San
Carlos Apache Reservation boundary). The Service will allow the wolf population to expand into the Blue
Range Wolf Recovery Area “secondary recovery zone” [see definition in paragraph (k)(15) of this
section], which is the remainder of the Blue Range Wolf Recovery Area not in the primary recovery
zone.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 34 of 66

View or download PDF
(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 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;

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 35 of 66

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.

View or download PDF
(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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 36 of 66

recovery area, put into the captive population, or otherwise managed according to provisions of a
Service-approved management plan or action. If a wolf is found in the United States outside the
boundaries of the Mexican Wolf Experimental Population Area (and not within any other wolf
experimental population area) the Service will presume it to be of wild origin with full endangered status
(or threatened in Minnesota) under the Act, unless evidence, such as a radio collar, identification mark,
or physical or behavioral traits (see paragraph (k)(3)(x) of this section), establishes otherwise. If such
evidence exists, the Service or an authorized agency will attempt to promptly capture the wolf and rerelease 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.

View or download PDF

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 37 of 66

(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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 38 of 66

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 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 Serviceapproved management plans. Until such time the term will mean the following—2 consecutive years with
a cumulative 35 percent decrease in population or hunter harvest estimates for a particular species of
ungulate in a game management unit or distinct herd segment compared to the pre-wolf 5-year average
(unit or herd must contain average of greater than 100 animals). If wolf predation is shown to be a
primary cause of ungulate population declines (greater than 50 percent of documented adult or young
mortality), then wolves may be moved to reduce ungulate mortality rates and assist in herd recovery, but
only in conjunction with application of other common, professionally acceptable, wildlife management
techniques.
Livestock means cattle, sheep, horses, mules, and burros or other domestic animals defined as livestock
in State and Tribal wolf management plans approved by the Service.
Occupied Mexican wolf range means an area of confirmed presence of resident breeding packs or pairs
of wolves or area consistently used by at least one resident wolf over a period of at least one month. The
Service must confirm or corroborate wolf presence. Exact delineation of the area will be described by:
(1) 5-mile (8 km) radius around all locations of wolves and wolf sign confirmed as described above
(nonradio-monitored);
(2) 5-mile (8 km) radius around radio locations of resident wolves when fewer than 20 radio locations are
available (for radio-monitored wolves only); or
(3) 3-mile (4.8 km) radius around the convex polygon developed from more than 20 radio locations of a
pack, pair, or single wolf acquired over a period of at least 6 months (for radio-monitored wolves).
This definition applies only within the Mexican Wolf Experimental Population Area.
Opportunistic, noninjurious harassment (see “harass”) means as the wolf presents itself (for example,
the wolf travels onto and is observed on private land or near livestock). This is the only type of
harassment permitted by this rule. You cannot track, attract, search out, or chase a wolf and then harass
it. Any harassment must not cause bodily injury or death to the wolf. The basic intent of harassment
permitted by this rule is to scare wolves away from the immediate area. It is limited to approaching
wolves and discharging firearms or other projectile launching devices in proximity to but not in the
direction of wolves; throwing objects in the general direction of but not at wolves; or making any loud
noise in proximity to wolves.
Primary recovery zone means an area where the Service—
(1) Will release captive-raised Mexican wolves,
(2) May return and re-release previously released Mexican wolves,
(3) May release translocated wild-born Mexican wolves, and
(4) Will actively support recovery of the reintroduced population.
Problem wolves means wolves that—
(1) Have depredated lawfully present domestic livestock,
(2) Are members of a group or pack (including adults, yearlings, and young-of-the-year) that were
directly involved in livestock depredations,

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 39 of 66

(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, Fish and Wildlife Service, Forest Service,
Department of Energy, and Department of Defense; and State-owned lands within the boundary of a
designated wolf recovery area. All State-owned lands within the boundary of the experimental population
area, but outside designated wolf recovery areas, will be subject to the provisions of this rule that apply
to private lands.
Rendezvous site means a gathering and activity area regularly used by a litter of young wolf pups after
they have emerged from the den. Typically, the site is used for a period ranging from about one week to
one month in the summer. Several sites may be used in succession.
Secondary recovery zone means an area adjacent to a primary recovery zone in which the Service
allows released wolves to disperse, where wolves captured in the wild for authorized management
purposes may be translocated and released, and where managers will actively support recovery of the
reintroduced population.
Take means“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct” (16 U.S.C. 1532(19)). Also, see definitions of “harass”, “opportunistic,
noninjurious harassment”, and “unavoidable and unintentional take.”
Unavoidable and unintentional take means accidental, unintentional take (see definition of “Take”) which
occurs despite reasonable care, is incidental to an otherwise lawful activity, and is not done on purpose.
Examples would be striking a wolf with an automobile and catching a wolf in a trap outside of known
occupied wolf range. Taking a wolf with a trap, snare, or other type of capture device within occupied
wolf range (except as authorized in paragraph (k)(3)(ix) and (x) of this section) will not be considered
unavoidable, accidental, or unintentional take, unless due care was exercised to avoid taking a wolf.
Taking a wolf by shooting will not be considered unavoidable, accidental, or unintentional take. Shooters
have the responsibility to be sure of their targets.
Wolf recovery area means a designated area where managers will actively support reestablishment of
Mexican wolf populations.
(l) Grizzly bear ( Ursus arctos horribilis ). (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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 40 of 66

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
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 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).

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 41 of 66

(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
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.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 42 of 66

(A) Membership will consist of seven individuals appointed by the Secretary based upon the
recommendations of the Governor of Idaho, five members appointed by the Secretary based upon the
recommendations of the Governor of Montana, one member representing the Nez Perce Tribe
appointed by the Secretary based on the recommendation of the Nez Perce Tribe, one member
representing the Forest Service appointed by the Secretary of Agriculture, and one member
representing the Fish and Wildlife Service appointed by the Secretary. Members recommended by the
Governors of Idaho and Montana will be based on the recommendations of interested parties and will
include at least one representative each from the appropriate State wildlife agencies. If either Governor
or the Tribe fails to make recommendations within 60 days, the Secretary (or his/her designee) will
accept recommendations from interested parties, and will make the appointments.
(B) The Committee will consist of a cross-section of interests reflecting a balance of viewpoints, and
members are to be selected for their diversity of knowledge and experience in natural resource issues,
and for their commitment to collaborative decision-making. In their recommendations to the Secretary,
the Governors of Idaho and Montana will attach written documentation of the qualifications of those
nominated relating to their knowledge of, and experience in, natural resource issues and their
commitment to collaborative decision-making.
(C) Except for the representatives from Federal agencies, the Committee will be selected from
communities within and adjacent to the Recovery and Experimental Population Areas.
(D) The Secretary will fill vacancies as they occur with the appropriate members based on the
recommendation of the appropriate Governor, the Nez Perce Tribe, or agency.
(7) Will independent scientific information be readily available to the Committee? The Secretary will
appoint two scientific advisors to the Committee as nonvoting members to attend all meetings of the
Committee and to provide scientific expertise to the Committee. These scientific advisors will not be
employed by Federal agencies involved in grizzly bear recovery. The Secretary will contact the Wildlife
Society Chapters in Idaho and Montana and the Universities of Idaho and Montana for nominations and
will select one wildlife scientist representing each State and appoint them as advisors to the Committee.
(8) What is the overall mission of the Committee, and how will it operate? (i) The mission of the
Committee is to facilitate recovery of the grizzly bear in the Bitterroot ecosystem by assisting in
implementing the Bitterroot ecosystem chapter of the recovery plan (Bitterroot Ecosystem Recovery
Plan Chapter—Supplement to the Grizzly Bear Recovery Plan, U.S. Fish and Wildlife Service, Missoula,
Montana, 1996). The Committee will make recommendations to land and wildlife management agencies
that it believes will lead to recovery of the grizzly bear. Decisions on, and implementation of, these
recommendations are the responsibility of the land and wildlife management agencies.
(ii) The Committee will meet a minimum of two times per year. These meetings will be open to the
public. Additionally, the committee will provide reasonable public notice of meetings, produce and
provide written minutes of meetings to interested persons, and involve the public in its decision-making
process. This public participation process will allow members of the public and/or special interest groups
to have input to Committee decisions and management actions.
(9) What authority will the Committee have, and what will be its primary tasks? The Committee will have
the authority and the responsibility to carry out the following functions:
(i) Developing a process for obtaining the best biological, social, and economic data. This process will
include an explicit mechanism for soliciting peer-reviewed, scientific articles on grizzly bears and their
management, and holding periodic public meetings not less than every 2 years, in which qualified
scientists may submit comments to and be questioned by the Committee. The two scientific advisors will
lead this process. The Committee will base its decisions upon the best scientific and commercial data
available. All decisions of the Committee, including components of its management plans, must lead
toward recovery of the grizzly bear in the Bitterroot ecosystem and minimize social and economic
impacts to the extent practicable within the context of the existing recovery goals for the species.
(ii) Soliciting technical advice and guidance from outside experts. The scientific advisors will lead the
development of an ongoing process to provide the Committee with the best scientific and commercial
data available. The scientific advisors will provide this information in the form of peer-reviewed scientific
articles on grizzly bears and their management, Committee meetings with presentations by scientific
experts, and requests to State and Federal management agencies and the private sector for scientific
expertise and advice.
(iii) Implementing the Bitterroot Ecosystem Chapter of the Grizzly Bear Recovery Plan consistent with

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 43 of 66

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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 44 of 66

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 fewer than 20 years. General guidelines for the standards by which failure will be
measured include, but are not limited to, one or more of the following conditions:
(A) If, within the number of years established by the Committee following initial reintroduction, no
relocated grizzly bear remains within the Experimental Population Area and the reasons for emigration
or mortality cannot be identified and/or remedied; or
(B) If, within the number of years established by the Committee following initial reintroduction, no cubs of
the year or yearlings exist and the relocated bears are not showing signs of successful reproduction as
evidenced by no cubs of the year or yearlings.
(xiv) Developing procedures for the expeditious issuance of permits described in paragraphs (l)(5)(iv)
and (l)(5)(v) of this section, and making recommendations on such procedures to appropriate agencies.
(xv) Developing 2-year work plans for the recovery effort for submittal to the Secretary pursuant to
paragraph (l)(11)(i) of this section.
(xvi) Establishing, based on the best available science, a refined interim recovery goal for the Bitterroot
Ecosystem Chapter of the Grizzly Bear Recovery Plan and a final recovery goal when sufficient
information is available and after grizzly bears are reintroduced and occupy suitable habitats in the
Experimental Population Area. As this information becomes available, the Committee may recommend
the recovery goal to the Secretary along with procedures for determining how this goal will be measured.
The recovery goal for the Bitterroot grizzly bear population will be consistent with the habitat available
within the Recovery Area. Additional adjacent areas of public land can be considered for contribution of
suitable habitat when setting the recovery goal if additional land is shown to be necessary by the best
scientific and commercial data available. Any recommendations for revised recovery goals developed by
the Committee will require public review and our approval as appropriate prior to revision of any
recovery plan. Grizzly bears outside the Recovery Area and within the Experimental Population Area
can contribute to meeting the recovery goal if their long-term occupancy in such habitats outside the
Recovery Area is reasonably certain.
(10) What agencies will be responsible for day-to-day management activities? The Idaho Department of
Fish and Game, the Montana Department of Fish, Wildlife and Parks, the Nez Perce Tribe, and the
Forest Service, in coordination with us, will exercise day-to-day management responsibility within the
Experimental Population Area in accordance with this paragaraph (l). The Service and these cooperating
agencies will share management responsibility as per agreements with, and in consideration of,
recommendations from the Committee.
(11) How will progress of the Committee be monitored; and what process will be followed by the
Secretary to resolve disputes over whether Committee actions are leading to recovery? (i) The Secretary
or our representative on the Committee will review the Committee's 2-year work plans (see paragraph (l)
(9)(xv) of this section). If the Secretary determines, through our representative on the Committee, that
the Committee's decisions, work plans, or the implementation of those plans are not leading to the
recovery of the grizzly bear within the Experimental Population Area or are not in compliance with this
paragraph (l), our representative will ask the Committee to determine whether such a decision, plan, or
implementation of a plan is leading to recovery and is in compliance with this paragraph (l). The
Secretary, who retains final responsibility and authority for implementation of the Act, will review the
Committee's determination, as provided in paragraphs (l)(11)(ii) through (iv) of this section, and then
make a final determination. Should the Secretary find that a decision, work plan, or implementation of a
plan by the Committee is inadequate for recovery of the grizzly bear or is not in compliance with this
paragraph (l), the Secretary may assume lead management responsibility.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 45 of 66

(ii) The Service representative will consider Committee input before making any determination that
Committee actions are not leading to recovery or are not in compliance with this paragraph (l). In the
event that our representative on the Committee determines that the actions of the Committee are not
leading to recovery of the Bitterroot grizzly bear population or are not in compliance with this paragraph
(l), he or she will recommend to the Committee, based on the best scientific and commercial data
available, alternative or corrective actions and provide 6 months for the Committee to accomplish those
actions. Should the Committee reject these corrective actions, our representative will convene a
Scientific Review Panel of three and will submit to the panel for review those Committee actions or
decisions that he or she has determined are not leading to recovery or are not in compliance with this
paragrpah (l). The Service representative will consider the views of all Committee members prior to
convening a Scientific Review Panel.
(iii) Members of the Scientific Review Panel will be professional scientists who have had no involvement
with the Committee and are not employed by Federal agencies responsible for grizzly bear recovery
efforts. The Secretary will select one member of the panel, and the Governors of Idaho and Montana in
consultation with the Universities of Idaho and Montana (respectively), will select one panel member
each. The Scientific Review Panel will review Committee actions or decisions, solicit additional
information if necessary and, using the best scientific and commercial data available, make timely
recommendations to the Committee as to whether Committee actions will lead to recovery of the grizzly
bear in the Bitterroot ecosystem and are in compliance with paragraph (l). Examples of Committee
actions, decisions, or lack of actions that can be submitted to the Scientific Review Panel include, but
are not limited to, the following: sufficiency of public involvement in Committee activities; decisions
involving sanitation and outreach activities; management of nuisance bears; adequacy of
recommendations to land and wildlife management agencies; adequacy of Committee actions in
addressing issues such as excessive human-caused grizzly bear mortality; and other actions important
to recovery of the grizzly bear in the Bitterroot ecosystem. Committee compliance with paragraph (l)
provides the basis for the recommendations of the Scientific Review Panel.
(iv) If, after timely review, the Committee rejects the recommendations of the Scientific Review Panel,
and our representative determines that Committee actions are not leading to recovery of the Bitterroot
population, he or she will notify the Secretary. The Secretary will review the Panel's recommendations
and determine the disposition of the Committee.
(A) If the Secretary determines that the Committee should maintain lead management responsibility, the
Committee will continue to operate according to the provisions of this paragraph (l) until the recovery
objectives under paragraph (l)(9)(xvi) of this section or the Bitterroot Ecosystem Chapter of the Recovery
Plan have been met and the Secretary has completed delisting.
(B) If the Secretary decides to assume lead management responsibility, the Secretary will consult with
the Governors of Idaho and Montana regarding that decision and further attempt to resolve the
disagreement. If, after such consultation, the Secretary assumes lead management responsibility, the
Secretary will publish a notice in theFederal Registerexplaining 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
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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 46 of 66

such reasonable measures cannot be identified and implemented, we will publish the results of our
evaluation in theFederal Registerin 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 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

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 47 of 66

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.

View or download PDF
(m) Spotfin chub (=turquoise shiner) ( Erimonax monachus ). (1) Where is the spotfin chub designated
as a nonessential experimental population (NEP)? We have designated three populations of this species
as NEPs: the Tellico River NEP, the Shoal Creek NEP, and the French Broad River and Holston River
NEP. This species is not currently known to exist in the Tellico River or its tributaries, the Shoal Creek or
its tributaries, or any of the tributaries to the free-flowing reaches of the French Broad River below
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam,
Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat requirements, we do not
expect this species to become established outside the NEP areas. However, if individuals move
upstream or downstream or into tributaries outside any of the designated NEP areas, we would presume
that those individuals came from the closest reintroduced population. We would then amend this
regulation and enlarge the boundaries of the NEP area to include the entire range of the expanded
population.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 48 of 66

(i) The Tellico River NEP area is within the species' probable historic range and is defined as follows:
The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19
(30.4 kilometers (km)) and Tellico River mile 33 (52.8 km), near the Tellico Ranger Station, Monroe
County, Tennessee.
(ii) The Shoal Creek NEP area is within the species' historic range and is defined as follows: Shoal
Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Lawrence County, TN,
downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals,
Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.
(iii) The French Broad River and Holston River NEP area is within the species' historic range and is
defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of
Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River;
then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee
Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.
(iv) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (m)(3)
of this section, all the provisions of §17.31(a) and (b) apply to the spotfin chub.
(ii) Any manner of take not described under paragraph (m)(3) of this section is prohibited in the NEP
area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (m)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (m)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? (i) In the Tellico River NEP area,
we will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10
years to determine whether to continue or terminate the reintroduction efforts.
(ii) In the Shoal Creek NEP area, after the initial stocking of fish, we will monitor annually their presence
or absence and document any spawning behavior or young-of-the-year fish that might be present. This
monitoring will be conducted primarily by snorkeling or seining and will be accomplished by contracting
with the appropriate species experts. We will produce annual reports detailing the stocking rates and
monitoring activities that took place during the previous year. We will also fully evaluate these
reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the
reintroduction efforts.
(iii) In the Lower French Broad and Lower Holston Rivers NEP area , after the initial stocking of these
species, we will monitor annually their presence or absence and document any spawning behavior or
young-of-the-year that might be present. This monitoring will be conducted primarily by snorkeling or
seining and will be accomplished by contracting with the appropriate species experts. Annual reports will
be produced detailing the stocking rates and monitoring activities that took place during the previous
year. We will also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the Tellico River NEP area for spotfin chub, dusky darter, smoky madtom, and yellowfin
madtom in Tennessee follows:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 49 of 66

View or download PDF
(6) Note: Map of the Shoal Creek NEP area for spotfin chub and boulder darter in Tennessee and
Alabama follows:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 50 of 66

View or download PDF
(7) Note: Map of the French Broad River and Holston River NEP area for spotfin chub, slender chub,
duskytail darter, pygmy madtom, and yellowtail madtom in Tennessee follows:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 51 of 66

View or download PDF
(n) Gray wolf ( Canis lupus ). (1) The gray wolves (wolf) identified in paragraphs (n)(9)(i) and (ii) of this
section are nonessential experimental populations. These wolves will be managed in accordance with
the respective provisions of this paragraph (n) in the boundaries of the nonessential experimental
population (NEP) areas within any State or Tribal reservation that has a wolf management plan that has
been approved by the Service, as further provided in this paragraph (n). Furthermore, any State or Tribe
that has a wolf management plan approved by the Service can petition the Secretary of the Department
of the Interior (DOI) to assume the lead authority for wolf management under this rule within the borders
of the NEP areas in their respective State or reservation.
(2) The Service finds that management of nonessential experimental gray wolves, as defined in this
paragraph (n), will further the conservation of the species.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 52 of 66

(3) Definitions of terms used in paragraph (n) of this section follow:
Active den site —A den or a specific above-ground site that is being used on a daily basis by wolves to
raise newborn pups during the period April 1 to June 30.
Breeding pair —An adult male and an adult female wolf that, during the previous breeding season,
produced at least two pups that survived until December 31 of the year of their birth.
Designated agent —Includes Federal agencies authorized or directed by the Service, and States or
Tribes with a wolf management plan approved by the Director of the Service and with established
cooperative agreements with us or Memoranda of Agreement (MOAs) approved by the Secretary of the
DOI. Federal agencies, States, or Tribes may become “designated agents” through cooperative
agreements with the Service whereby they agree to assist the Service to implement some portions of
this rule. If a State or Tribe becomes a “designated agent” through a cooperative agreement, the Service
will help coordinate their activities and retain authority for program direction, oversight, and guidance.
States and Tribes with approved plans also may become “designated agents” by submitting a petition to
the Secretary to establish an MOA under this rule. Once accepted by the Secretary, the MOA may allow
the State or Tribe to assume lead authority for wolf management and to implement the portions of their
State or Tribal plans that are consistent with this rule. The Service oversight (aside from Service law
enforcement investigations) under an MOA is limited to monitoring compliance with this rule, issuing
written authorizations for wolf take on reservations without approved wolf management plans, and an
annual review of the State or Tribal program to ensure the wolf population is being maintained above
recovery levels.
Domestic animals —Animals that have been selectively bred over many generations to enhance specific
traits for their use by humans, including use as pets. This includes livestock (as defined below) and
dogs.
Intentional harassment —The deliberate and pre-planned harassment of wolves, including by less-thanlethal munitions (such as 12-gauge shotgun rubber-bullets and bean-bag shells), that are designed to
cause physical discomfort and temporary physical injury but not death. The wolf may have been tracked,
waited for, chased, or searched out and then harassed.
In the act of attacking —The actual biting, wounding, grasping, or killing of livestock or dogs, or chasing,
molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding,
grasping, or killing of livestock or dogs is likely to occur at any moment.
Landowner —An owner of private land, or his/her immediate family members, or the owner's employees
who are currently employed to actively work on that private land. In addition, the owner(s) (or his/her
employees) of livestock that are currently and legally grazed on that private land and other lease-holders
on that private land (such as outfitters or guides who lease hunting rights from private landowners), are
considered landowners on that private land for the purposes of this regulation. Private land, under this
regulation, also includes all non-Federal land and land within Tribal reservations. Individuals legally
using Tribal lands in States with approved plans are considered landowners for the purposes of this rule.
“Landowner” in this regulation includes legal grazing permittees or their current employees on State,
county, or city public or Tribal grazing lands.
Legally present —A person is legally present when (i) on his or her own property, (ii) not trespassing and
has the landowner's permission to bring his or her stock animal or dog on the property, or (iii) abiding by
regulations governing legal presence on public lands.
Livestock —Cattle, sheep, horses, mules, goats, domestic bison, and herding and guarding animals
(llamas, donkeys, and certain breeds of dogs commonly used for herding or guarding livestock).
Livestock excludes dogs that are not being used for livestock guarding or herding.
Non injurious —Does not cause either temporary or permanent physical damage or death.
Opportunistic harassment —Harassment without the conduct of prior purposeful actions to attract, track,
wait for, or search out the wolf.
Private land —All land other than that under Federal Government ownership and administration and
including Tribal reservations.
Problem wolves —Wolves that have been confirmed by the Service or our designated agent(s) to have

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 53 of 66

attacked or been in the act of attacking livestock or dogs on private land or livestock on public land
within the past 45 days. Wolves that we or our designated agent(s) confirm to have attacked any other
domestic animals on private land twice within a calendar year are considered problem wolves for
purposes of agency wolf control actions.
Public land —Federal land such as that administered by the National Park Service, Bureau of Land
Management, USDA Forest Service, Bureau of Reclamation, Department of Defense, or other agencies
with the Federal Government.
Public land permittee —A person or that person's employee who has an active, valid Federal land-use
permit to use specific Federal lands to graze livestock, or operate an outfitter or guiding business that
uses livestock. This definition does not include private individuals or organizations who have Federal
permits for other activities on public land such as collecting firewood, mushrooms, antlers, or Christmas
trees; logging; mining; oil or gas development; or other uses that do not require livestock. In recognition
of the special and unique authorities of Tribes and their relationship with the U.S. Government, for the
purposes of this rule, the definition includes Tribal members who legally graze their livestock on ceded
public lands under recognized Tribal treaty rights.
Remove —Place in captivity, relocate to another location, or kill.
Research —Scientific studies resulting in data that will lend to enhancement of the survival of the gray
wolf.
Rule — Federal regulations —“This rule” or “this regulation” refers to this final NEP regulation.
Stock animal —A horse, mule, donkey, llama, or goat used to transport people or their possessions.
Unacceptable impact —Impact to ungulate population or herd where a State or Tribe has determined
that wolves are one of the major causes of the population or herd not meeting established State or Tribal
management goals.
Ungulate population or herd —An assemblage of wild ungulates living in a given area.
Wounded —Exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage
caused by a wolf bite.
(4) Allowable forms of take of gray wolves. The following activities, only in the specific circumstances
described under this paragraph (n)(4), are allowed: Opportunistic harassment; intentional harassment;
take on private land; take on public land except land administered by National Parks; take in response to
impacts on wild ungulate populations; take in defense of human life; take to protect human safety; take
by designated agents to remove problem wolves; incidental take; take under permits; take per
authorizations for employees of designated agents; take for research purposes; and take to protect stock
animals and dogs. Other than as expressly provided in this rule, all other forms of take are considered a
violation of section 9 of the Act. Any wolf or wolf part taken legally must be turned over to the Service
unless otherwise specified in this paragraph (n). Any take of wolves must be reported as outlined in
paragraph (n)(6) of this section.
(i) Opportunistic harassment. Anyone may conduct opportunistic harassment of any gray wolf in a noninjurious manner at any time. Opportunistic harassment must be reported to the Service or our
designated agent(s) within 7 days as outlined in paragraph (n)(6) of this section.
(ii) Intentional harassment. After we or our designated agent(s) have confirmed wolf activity on private
land, on a public land grazing allotment, or on a Tribal reservation, we or our designated agent(s) may
issue written take authorization valid for not longer than 1 year, with appropriate conditions, to any
landowner or public land permittee to intentionally harass wolves. The harassment must occur in the
area and under the conditions as specifically identified in the written take authorization.
(iii) Take by landowners on their private land. Landowners may take wolves on their private land in the
following two additional circumstances:
(A) Any landowner may immediately take a gray wolf in the act of attacking livestock or dogs on his or
her private land, provided the landowner provides evidence of livestock or dogs recently (less than 24
hours) wounded, harassed, molested, or killed by wolves, and we or our designated agent(s) are able to

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 54 of 66

confirm that the livestock or dogs were wounded, harassed, molested, or killed by wolves. The carcass
of any wolf taken and the area surrounding it should not be disturbed in order to preserve physical
evidence that the take was conducted according to this rule. The take of any wolf without such evidence
of a direct and immediate threat may be referred to the appropriate authorities for prosecution.
(B) A landowner may take wolves on his or her private land if we or our designated agent issued a
“shoot-on-sight” written take authorization of limited duration (45 days or less), and if:
( 1 ) This landowner's property has had at least one depredation by wolves on livestock or dogs that has
been confirmed by us or our designated agent(s) within the past 30 days; and
( 2 ) We or our designated agent(s) have determined that problem wolves are routinely present on that
private property and present a significant risk to the health and safety of other livestock or dogs; and
( 3 ) We or our designated agent(s) have authorized lethal removal of problem wolves from that same
property. The landowner must conduct the take in compliance with the written take authorization issued
by the Service or our designated agent(s).
(iv) Take on public land. Any livestock producer and public land permittee (see definitions in paragraph
(n)(3) of this section) who is legally using public land under a valid Federal land-use permit may
immediately take a gray wolf in the act of attacking his or her livestock on the person's allotment or other
area authorized for his or her use without prior written authorization, provided that that producer or
permittee provides evidence of livestock recently (less than 24 hours) wounded, harassed, molested, or
killed by wolves, and we or our designated agent(s) are able to confirm that the livestock were wounded,
harassed, molested, or killed by wolves. The carcass of any wolf taken and the area surrounding it
should not be disturbed, in order to preserve physical evidence that the take was conducted according
to this rule. The take of any wolf without such evidence may be referred to the appropriate authorities for
prosecution.
(A) At our or our designated agent(s)' discretion, we or our designated agent(s) also may issue a shootonsight written take authorization of limited duration (45 days or less) to a public land grazing permittee
to take problem wolves on that permittee's active livestock grazing allotment if:
( 1 ) The grazing allotment has had at least one depredation by wolves on livestock that has been
confirmed by us or our designated agent(s) within the past 30 days; and
( 2 ) We or our designated agent(s) have determined that problem wolves are routinely present on that
allotment and present a significant risk to the health and safety of livestock; and
( 3 ) We or our designated agent(s) have authorized lethal removal of problem wolves from that same
allotment.
(B) The permittee must conduct the take in compliance with the written take authorization issued by the
Service or our designated agent(s).
(v) Take in response to wild ungulate impacts. If wolf predation is having an unacceptable impact on wild
ungulate populations (deer, elk, moose, bighorn sheep, mountain goats, antelope, or bison) as
determined by the respective State or Tribe, a State or Tribe may lethally remove the wolves in question.
(A) In order for this provision to apply, the State or Tribes must prepare a science-based document that:
( 1 ) Describes the basis of ungulate population or herd management objectives, what data indicate that
the ungulate population or herd is below management objectives, what data indicate that wolves are a
major cause of the unacceptable impact to the ungulate population or herd, why wolf removal is a
warranted solution to help restore the ungulate population or herd to State or Tribal management
objectives, the level and duration of wolf removal being proposed, and how ungulate population or herd
response to wolf removal will be measured and control actions adjusted for effectiveness;
( 2 ) Demonstrates that attempts were and are being made to address other identified major causes of
ungulate herd or population declines or the State or Tribe commits to implement possible remedies or
conservation measures in addition to wolf removal; and
( 3 ) Provides an opportunity for peer review and public comment on their proposal prior to submitting it

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 55 of 66

to the Service for written concurrence. The State or Tribe must:
( i ) Conduct the peer review process in conformance with the Office of Management and Budget's Final
Information Quality Bulletin for Peer Review (70 FR 2664, January 14, 2005) and include in their
proposal an explanation of how the bulletin's standards were considered and satisfied; and
( ii ) Obtain at least five independent peer reviews from individuals with relevant expertise other than
staff employed by a State, Tribal, or Federal agency directly or indirectly involved with predator control or
ungulate management in Idaho, Montana, or Wyoming.
(B) Before we authorize lethal removal, we must determine that an unacceptable impact to wild ungulate
populations or herds has occurred. We also must determine that the proposed lethal removal is sciencebased, will not contribute to reducing the wolf population in the State below 20 breeding pairs and 200
wolves, and will not impede wolf recovery.
(vi) Take in defense of human life. Any person may take a gray wolf in defense of the individual's life or
the life of another person. The unauthorized taking of a wolf without demonstration of an immediate and
direct threat to human life may be referred to the appropriate authorities for prosecution.
(vii) Take to protect human safety. We or our designated agent(s) may promptly remove any wolf that we
or our designated agent(s) determines to be a threat to human life or safety.
(viii) Take of problem wolves by Service personnel or our designated agent(s). We or our designated
agent(s) may carry out harassment, nonlethal control measures, relocation, placement in captivity, or
lethal control of problem wolves. To determine the presence of problem wolves, we or our designated
agent(s) will consider all of the following:
(A) Evidence of wounded livestock, dogs, or other domestic animals, or remains of livestock, dogs, or
domestic animals that show that the injury or death was caused by wolves, or evidence that wolves were
in the act of attacking livestock, dogs, or domestic animals;
(B) The likelihood that additional wolf-caused losses or attacks may occur if no control action is taken;
(C) Evidence of unusual attractants or artificial or intentional feeding of wolves; and
(D) Evidence that animal husbandry practices recommended in approved allotment plans and annual
operating plans were followed.
(ix) Incidental take. Take of a gray wolf is allowed if the take is accidental and incidental to an otherwise
lawful activity and if reasonable due care was practiced to avoid such take, and such take is reported
within 24 hours. Incidental take is not allowed if the take is not accidental or if reasonable due care was
not practiced to avoid such take, or it was not reported within 24 hours (we may allow additional time if
access to the site of the take is limited), and we may refer such taking to the appropriate authorities for
prosecution. Shooters have the responsibility to identify their target before shooting. Shooting a wolf as a
result of mistaking it for another species is not considered accidental and may be referred to the
appropriate authorities for prosecution.
(x) Take under permits. Any person with a valid permit issued by the Service under §17.32, or our
designated agent(s), may take wolves in the wild, pursuant to terms of the permit.
(xi) Additional take authorization for agency employees. When acting in the course of official duties, any
employee of the Service or our designated agent(s) may take a wolf or wolf-like canid for the following
purposes:
(A) Scientific purposes;
(B) To avoid conflict with human activities;
(C) To further wolf survival and recovery;
(D) To aid or euthanize sick, injured, or orphaned wolves;

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 56 of 66

(E) To dispose of a dead specimen;
(F) To salvage a dead specimen that may be used for scientific study;
(G) To aid in law enforcement investigations involving wolves; or
(H) To prevent wolves or wolf-like canids with abnormal physical or behavioral characteristics, as
determined by the Service or our designated agent(s), from passing on or teaching those traits to other
wolves.
(I) Such take must be reported to the Service within 7 days as outlined in paragraph (n)(6) of this
section, and specimens are to be retained or disposed of only in accordance with directions from the
Service.
(xii) Take for research purposes. We may issue permits under §17.32, or our designated agent(s) may
issue written authorization, for individuals to take wolves in the wild pursuant to approved scientific study
proposals. Scientific studies should be reasonably expected to result in data that will lend to
development of sound management of the gray wolf, and lend to enhancement of its survival as a
species.
(xiii) Take to protect stock animals and dogs. Any person legally present on private or public land, except
land administered by the National Park Service, may immediately take a wolf that is in the act of
attacking the individual's stock animal or dog, provided that there is no evidence of intentional baiting,
feeding, or deliberate attractants of wolves. The person must be able to provide evidence of stock
animals or dogs recently (less than 24 hours) wounded, harassed, molested, or killed by wolves, and we
or our designated agents must be able to confirm that the stock animals or dogs were wounded,
harassed, molested, or killed by wolves. To preserve evidence that the take of a wolf was conducted
according to this rule, the person must not disturb the carcass and the area surrounding it. The take of
any wolf without such evidence of a direct and immediate threat may be referred to the appropriate
authorities for prosecution.
(5) Federal land use. Restrictions on the use of any Federal lands may be put in place to prevent the
take of wolves at active den sites between April 1 and June 30. Otherwise, no additional land-use
restrictions on Federal lands, except for National Parks or National Wildlife Refuges, may be necessary
to reduce or prevent take of wolves solely to benefit gray wolf recovery under the Act. This prohibition
does not preclude restricting land use when necessary to reduce negative impacts of wolf restoration
efforts on other endangered or threatened species.
(6) Reporting requirements. Except as otherwise specified in paragraph (n) of this section or in a permit,
any take of a gray wolf must be reported to the Service or our designated agent(s) within 24 hours. We
will allow additional reasonable time if access to the site is limited. Report any take of wolves, including
opportunistic harassment, to U.S. Fish and Wildlife Service, Western Gray Wolf Recovery Coordinator
(100 North Park, Suite 320, Helena, Montana 59601, 406–449–5225 extension 204; facsimile 406–449–
5339), or a Service-designated agent of another Federal, State, or Tribal agency. Unless otherwise
specified in paragraph (n) of this section, any wolf or wolf part taken legally must be turned over to the
Service, which will determine the disposition of any live or dead wolves.
(7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any wolf or part thereof from the experimental populations taken in violation of the
regulations in paragraph (n) of this section or in violation of applicable State or Tribal fish and wildlife
laws or regulations or the Act.
(8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed
any offense defined in this section.
(9) The sites for these experimental populations are within the historic range of the species as
designated in §17.84(i)(7):
(i) The central Idaho NEP area is shown on the following map. The boundaries of the NEP area are
those portions of Idaho that are south of Interstate Highway 90 and west of Interstate 15, and those
portions of Montana south of Interstate 90, Highways 93 and 12 from Missoula, Montana, west of
Interstate 15.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 57 of 66

View or download PDF
(ii) The Yellowstone NEP is shown on the following map. The boundaries of the NEP area are that
portion of Idaho that is east of Interstate Highway 15; that portion of Montana that is east of Interstate
Highway 15 and south of the Missouri River from Great Falls, Montana, to the eastern Montana border;
and all of Wyoming.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 58 of 66

View or download PDF
(iii) All wolves found in the wild within the boundaries of these experimental areas are considered
nonessential experimental animals.
(10) Wolves in the experimental population areas will be monitored by radio-telemetry or other standard
wolf population monitoring techniques as appropriate. Any animal that is sick, injured, or otherwise in
need of special care may be captured by authorized personnel of the Service or our designated agent(s)
and given appropriate care. Such an animal will be released back into its respective area as soon as
possible, unless physical or behavioral problems make it necessary to return the animal to captivity or
euthanize it.
(11) Memoranda of Agreement (MOAs). Any State or Tribe with gray wolves, subject to the terms of this
paragraph (n), may petition the Secretary for an MOA to take over lead management responsibility and
authority to implement this rule by managing the nonessential experimental gray wolves in that State or
on that Tribal reservation, and implement all parts of their approved State or Tribal plan that are
consistent with this rule, provided that the State or Tribe has a wolf management plan approved by the
Secretary.
(i) A State or Tribal petition for wolf management under an MOA must show:
(A) That authority and management capability resides in the State or Tribe to conserve the gray wolf
throughout the geographical range of all experimental populations within the State or within the Tribal
reservation.
(B) That the State or Tribe has an acceptable conservation program for the gray wolf, throughout all of
the NEP areas within the State or Tribal reservation, including the requisite authority and capacity to
carry out that conservation program.
(C) A description of exactly what parts of the approved State or Tribal plan the State or Tribe intends to
implement within the framework of this rule.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 59 of 66

(D) A description of the State or Tribal management progress will be reported to the Service on at least
an annual basis so the Service can determine if State or Tribal management has maintained the wolf
population above recovery levels and was conducted in full compliance with this rule.
(ii) The Secretary will approve such a petition upon a finding that the applicable criteria are met and that
approval is not likely to jeopardize the continued existence of the endangered gray wolf, as defined in
§17.11(h).
(iii) If the Secretary approves the petition, the Secretary will enter into an MOA with the Governor of that
State or appropriate Tribal representative.
(iv) An MOA for State or Tribal management as provided in this section may allow a State or Tribe to
become designated agents and lead management of nonessential experimental gray wolf populations
within the borders of their jurisdictions in accordance with the State's or Tribe's wolf management plan
approved by the Service, except that:
(A) The MOA may not provide for any form of management inconsistent with the protection provided to
the species under this rule, without further opportunity for appropriate public comment and review and
amendment of this rule;
(B) The MOA cannot vest the State or Tribe with any authority over matters concerning section 4 of the
Act (determining whether a species warrants listing);
(C) The MOA may not provide for public hunting or trapping absent a finding by the Secretary of an
extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved;
and
(D) In the absence of a Tribal wolf management plan or cooperative agreement, the MOA cannot vest a
State with the authority to issue written authorizations for wolf take on reservations. The Service will
retain the authority to issue these written authorizations until a Tribal wolf management plan is approved.
(v) The MOA for State or Tribal wolf management must provide for joint law enforcement responsibilities
to ensure that the Service also has the authority to enforce the State or Tribal management program
prohibitions on take.
(vi) The MOA may not authorize wolf take beyond that stated in the experimental population rules but
may be more restrictive.
(vii) The MOA will expressly provide that the results of implementing the MOA may be the basis upon
which State or Tribal regulatory measures will be judged for delisting purposes.
(viii) The authority for the MOA will be the Act, the Fish and Wildlife Act of 1956 (16 U.S.C. 742a–742j),
and the Fish and Wildlife Coordination Act (16 U.S.C. 661–667e), and any applicable treaty.
(ix) In order for the MOA to remain in effect, the Secretary must find, on an annual basis, that the
management under the MOA is not jeopardizing the continued existence of the endangered gray wolf as
defined in §17.11(h). The Secretary or State or Tribe may terminate the MOA upon 90 days notice if:
(A) Management under the MOA is likely to jeopardize the continued existence of the endangered gray
wolf as defined in §17.11(h); or
(B) The State or Tribe has failed materially to comply with this rule, the MOA, or any relevant provision of
the State or Tribal wolf management plan; or
(C) The Service determines that biological circumstances within the range of the gray wolf indicate that
delisting the species is not warranted; or
(D) The States or Tribes determine that they no longer want the wolf management authority vested in
them by the Secretary in the MOA.
(o) Boulder darter ( Etheostoma wapiti ). (1) Where is the boulder darter designated as a nonessential
experimental population (NEP) ? (i) The NEP area for the boulder darter is within the species' historic

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 60 of 66

range and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of
Long Branch, Lawrence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek
mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all
tributaries that enter this reach.
(ii) The boulder darter is not currently known to exist in Shoal Creek or its tributaries. Based on the
habitat requirements of this fish, we do not expect it to become established outside the NEP area.
However, if any individuals of the species move upstream or downstream or into tributaries outside the
designated NEP area, we would presume that they came from the reintroduced population. We would
then amend this rule through our normal rulemaking process in order to enlarge the boundaries of the
NEP area to include the entire range of the expanded population.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (o)(3)
of this section, all the provisions of §17.31(a) and (b) apply to the boulder darter.
(ii) Any manner of take not described under paragraph (o)(3) of this section is prohibited in the NEP
area. We may refer unauthorized take of these species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (o)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (o)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? After the initial stocking of fish, we
will monitor annually their presence or absence and document any spawning behavior or young-of-theyear fish that might be present. This monitoring will be conducted primarily by snorkeling or seining and
will be accomplished by contracting with the appropriate species experts. We will produce annual reports
detailing the stocking rates and monitoring activities that took place during the previous year. We will
also fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or
terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the boulder darter in the Shoal Creek, Tennessee and Alabama,
appears immediately following paragraph (m)(6) of this section.
(p) Northern aplomado falcon ( Falco femoralis septentrionalis ). (1) The northern aplomado falcon
( Falco femoralis septentrionalis ) (falcon) population identified in paragraph (p)(9)(i) of this section is a
nonessential experimental population (NEP).
(2) No person may take this species, except as provided in paragraphs (p)(3) through (5) and (p)(10) of
this section.
(3) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under §17.32
may take falcons for educational purposes, scientific purposes, the enhancement of propagation or
survival of the species, zoological exhibition, and other conservation purposes consistent with the
Endangered Species Act (Act);
(4) A falcon may be taken within the NEP area, provided that such take is not willful, knowing, or due to
negligence, or is incidental to and not the purpose of the carrying out of an otherwise lawful activity; and
that such taking is reported within 24 hours, as provided under paragraph (p)(6) of this section.
(5) Any employee of the Service, New Mexico Department of Game and Fish, or Arizona Game and Fish
Department, who is designated for such purpose, or any person with a valid permit issued by the Service

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 61 of 66

under 50 CFR 17.32, may, when acting in the course of official duties, take a falcon if such action is
necessary to:
(i) Aid a sick, injured, or orphaned specimen;
(ii) Dispose of a dead specimen, or salvage a dead specimen that may be useful for scientific study;
(iii) Move a bird within the NEP area for genetic purposes or to improve the health of the population;
(iv) Relocate falcons that have moved outside the NEP area, by returning the falcon to the NEP area or
moving it to a captive breeding facility. All captures and relocations from outside the NEP area will be
conducted with the permission of the landowner(s) or appropriate land management agencies; or
(v) Collect nesting data or band individuals.
(6) Any taking pursuant to paragraphs (p)(3) through (5) of this section must be reported within 24 hours
by contacting the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105
Osuna NE, Albuquerque, NM 87113; (505) 346–2525. Upon contact, a determination will be made as to
the disposition of any live or dead specimens.
(7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means
whatsoever, any such species taken in violation of these regulations.
(8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be
committed, any offense defined in paragraphs (p)(2) and (p)(7) of this section.
(9)(i) The boundaries of the designated NEP area are based on county borders and include the entire
States of New Mexico and Arizona. The reintroduction area is within the historical range of the species in
New Mexico.
(ii) All falcons found in the wild within the boundaries of the NEP area after the first releases will be
considered members of the NEP. A falcon occurring outside of the NEP area is considered endangered
under the Act unless it is marked or otherwise known to be a member of the NEP.
(iii) The Service has designated the NEP area to accommodate the potential future movements of a wild
population of falcons. All released birds and their progeny are expected to remain in the NEP area due
to the geographic extent of the designation.
(10) The NEP will be monitored closely for the duration of the reintroduction program. Any bird that is
determined to be sick, injured, or otherwise in need of special care will be recaptured to the extent
possible by Service and/or State or permitted Tribal wildlife personnel and given appropriate care. Such
birds will be released back to the wild as soon as possible, unless physical or behavioral problems make
it necessary to return them to a captive-breeding facility or they are euthanized if treatment would be
unlikely to be effective.
(11) The Service plans to evaluate the status of the NEP every 5 years to determine future management
status and needs, with the first evaluation expected to be not more than 5 years after the first release of
birds into the NEP area. All reviews will take into account the reproductive success and movement
patterns of individuals released, food habits, and overall health of the population. This evaluation will
include a progress report.
(q) Duskytail darter ( Etheostoma percnurum ). (1) Where is the duskytail darter designated as a
nonessential experimental population (NEP) ? We have designated two populations of this species as
NEPs: The Tellico River NEP and the French Broad River and Holston River NEP. This species is not
currently known to exist in the Tellico River or its tributaries or in any of the tributaries to the free-flowing
reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of
the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based
on its habitat requirements, we do not expect this species to become established outside these NEP
areas. However, if individuals move upstream or downstream or into tributaries outside either of the
designated NEP areas, we would presume that these individuals came from the reintroduced population.
We would then amend this rule and enlarge the boundaries of the NEP area to include the entire range
of the expanded population.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 62 of 66

(i) The Tellico River NEP area is within the species' historic range and is defined as follows: The Tellico
River, between the backwaters of the Tellico Reservoir (approximately Tellico River mile 19 (30.4
kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station, Monroe County,
Tennessee.
(ii) The French Broad River and Holston River NEP area is within the species' historic range and is
defined as follows: the French Broad River, Knox and Sevier Counties, Tennessee, from the base of
Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River;
then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee
Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (q)(3)
of this section, all the prohibitions of §17.31(a) and (b) apply to the duskytail darter.
(ii) Any manner of take not described under paragraph (q)(3) of this section is prohibited in the NEP
area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (q)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (q)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress
reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the duskytail darter in the Tellico River, Tennessee, appears
immediately following paragraph (m)(5) of this section.
(6) Note: Map of the NEP area for the duskytail darter in the French Broad River and Holston River,
Tennessee, appears immediately following paragraph (m)(7) of this section.
(r) Smoky madtom ( Noturus baileyi ). (1) Where is the smoky madtom designated as a nonessential
experimental population (NEP)?
(i) The NEP area for the smoky madtom is within the species' probable historic range and is defined as
follows: The Tellico River, between the backwaters of the Tellico Reservoir (approximately Tellico River
mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near the Tellico Ranger Station,
Monroe County, Tennessee.
(ii) The smoky madtom is not currently known to exist in the Tellico River or its tributaries. Based on the
habitat requirements of this fish, we do not expect it to become established outside the NEP area.
However, if any individuals of the species move upstream or downstream or into tributaries outside the
designated NEP area, we would presume that they came from the reintroduced population. We would
then amend paragraph (r)(1)(i) of this section and enlarge the boundaries of the NEP area to include the
entire range of the expanded population.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (r)(3)

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 63 of 66

of this section, all the prohibitions of §17.31(a) and (b) apply to the smoky madtom.
(ii) Any manner of take not described under paragraph (r)(3) of this section is prohibited in the NEP area.
We may refer unauthorized take of this species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (r)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (r)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress
reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the smoky madtom in the Tellico River, Tennessee, appears
immediately following paragraph (m)(6) of this section.
(s) Slender chub ( Erimystax cahni ). (1) Where is the slender chub designated as a nonessential
experimental population (NEP)?
(i) The NEP area for the slender chub is within the species' historic range and is defined as follows: the
French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile
(RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston River,
Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km));
and the lower 5 RM (8 km) of all tributaries that enter these river reaches.
(ii) The slender chub is not known to exist in any of the tributaries to the free-flowing reaches of the
French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River
below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat
requirements, we do not expect this species to become established outside this NEP area. However, if
individuals of this population move upstream or downstream or into tributaries outside the designated
NEP area, we would presume that they came from the reintroduced population. We would then amend
this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded
population.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (s)(3)
of this section, all the prohibitions of §17.31(a) and (b) apply to the slender chub.
(ii) Any manner of take not described under paragraph (s)(3) of this section is prohibited in the NEP
area. We may refer unauthorized take of this species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (s)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (s)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 64 of 66

(4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress
reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the slender chub in the French Broad River and Holston River,
Tennessee, appears immediately following paragraph (m)(7) of this section.
(t) Pygmy madtom ( Noturus stanauli ). (1) Where is the pygmy madtom designated as a nonessential
experimental population (NEP)?
(i) The NEP area for the pygmy madtom is within the species' historic range and is defined as follows:
the French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river
mile (RM) 32.3 (51.7 km)) downstream to the confluence with the Holston River; then up the Holston
River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3
(83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches.
(ii) The pygmy madtom is not known to exist in any of the tributaries to the free-flowing reaches of the
French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River
below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on its habitat
requirements, we do not expect this species to become established outside this NEP area. However, if
individuals of this population move upstream or downstream or into tributaries outside the designated
NEP area, we would presume that they came from the reintroduced population. We would then amend
this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded
population.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as expressly allowed in paragraph (t)(3)
of this section, all the prohibitions of §17.31(a) and (b) apply to the pygmy madtom.
(ii) Any manner of take not described under paragraph (t)(3) of this section is prohibited in the NEP area.
We may refer unauthorized take of this species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (t)(2)
of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (t)(2) of this section.
(3) What take is allowed in the NEP area? Take of this species that is accidental and incidental to an
otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations, is allowed.
(4) How will the effectiveness of these reintroductions be monitored? We will prepare periodic progress
reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to
continue or terminate the reintroduction efforts.
(5) Note: Map of the NEP area for the pygmy madtom in the French Broad River and Holston River,
Tennessee, appears immediately following paragraph (m)(7) of this section.
(u) Rio Grande silvery minnow ( Hybognathus amarus ).
(1) Where are populations of this fish designated as nonessential experimental populations (NEP)?
(i) The NEP area for the Rio Grande silvery minnow is within the species' historical range and is defined
as follows: Rio Grande, from Little Box Canyon downstream of Fort Quitman, Hudspeth County, Texas,
through Big Bend National Park and the Rio Grande Wild and Scenic River, to Amistad Dam; and on the
Pecos River, from its confluence with Independence Creek to its confluence with the Rio Grande.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 65 of 66

(ii) The Rio Grande silvery minnow is not currently known to exist in the Rio Grande or Pecos River in
Texas. Based on the habitat requirements of this fish, we do not expect it to become established outside
the NEP area. However, if any individuals of this species move upstream or downstream or into
tributaries outside the designated NEP area, we would presume that they came from the reestablished
populations. We would then amend paragraph (u)(1)(i) of this section to enlarge the boundaries of the
NEP to include the entire range of the expanded population.
(iii) We do not intend to change the NEP designation to “essential experimental,” “threatened,” or
“endangered” within the NEP area. Additionally, we will not designate critical habitat for this NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What take is allowed of this species in the NEP area?
(i) A Rio Grande silvery minnow may be taken within the NEP area, provided that such take is either not
willful, knowing, or due to negligence, or is incidental to and not the purpose of the carrying out of an
otherwise lawful activity, such as recreation (e.g., fishing, boating, wading, trapping, or swimming),
agriculture, and other activities that are in accordance with Federal, State, and local laws and
regulations. However, Federal agencies, must consult under section 7 of the Act on their activities that
may affect the Rio Grande silvery minnow within Big Bend National Park or the Wild and Scenic River.
(ii) Any person with a valid permit issued by the U.S. Fish and Wildlife Service (Service) under 50 CFR
17.32 may take Rio Grande silvery minnows for educational purposes, scientific purposes, the
enhancement of propagation or survival of the species, zoological exhibition, and other conservation
purposes consistent with the Act;
(iii) Any taking pursuant to paragraph (u)(2)(i) of this section must be reported within 7 days by
contacting the Service, Austin Ecological Services Field Office, 107011 Burnet Road, Suite 200, Austin,
TX 78758; (512) 490-0057. Once the Service is contacted, a determination will be made as to the
disposition of any live or dead specimens. Reporting requirements for take pursuant to paragraph (u)(2)
(ii) of this section will be specifically defined in the permit issued by the Service.
(3) What take of this species is not allowed in the NEP area?
(i) Except as expressly allowed in paragraph (u)(2) of this section, all the provisions of 50 CFR 17.31(a)
and (b) apply to the fish identified in paragraph (u)(1) of this section.
(ii) Any manner of take not described under paragraph (u)(2) of this section is prohibited in the NEP
area.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever
any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (u)(3)
of this section or in violation of the applicable State or local fish and wildlife laws or regulations or the
Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense
defined in paragraph (u)(3) of this section.
(4) How will the effectiveness of the reestablishment be monitored?
(a) After the initial stocking of this fish, we will monitor their presence or absence at least annually and
document any spawning behavior or young-of-year fish that might be present. Depending on available
resources, monitoring may occur more frequently, especially during the first few years of
reestablishment efforts. This monitoring will be conducted primarily by seining and will be accomplished
by Service, National Park Service, or State employees or by contracting with the appropriate species
experts. Annual reports will be produced detailing stocking and monitoring activities that took place
during the previous year.
(b) The Service will fully evaluate these reestablishment efforts every 5 years to determine whether to
continue or terminate them.
(c) Note: Map of the NEP area for the Rio Grande silvery minnow in Texas follows:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011

Electronic Code of Federal Regulations:

Page 66 of 66

View or download PDF
[49 FR 35954, Sept. 13, 1984; 50 FR 30194, July 24, 1985]
Editorial Note: ForFederal Registercitations affecting §17.84, see the List of CFR Sections Affected,
which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.
Browse Previous | Browse Next

For questions or comments regarding e-CFR editorial content, features, or design, email [email protected].
For questions concerning e-CFR programming and delivery issues, email [email protected].
Section 508 / Accessibility

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=805fbfde50eeb6e9024c4d5e7504c... 3/17/2011