Federal Register / Vol. 77, No. 81 / Thursday, April 26, 2012 / Proposed Rules 24915 

moderate to high ranking, meaning this 

ecoregion is more likely to have 

negative ecological impacts from 

warming (Enquist and Gori 2008, pp. 20, 

32). 

We acknowledge that current climate 

projections indicate that warming in the 

U.S. Southwest will persist, and may 

worsen (IPCC 2007b, p. 15; IPCC 2007c, 

p. 887). However, we find the 

information presented in the petition 

and readily available in our files on the 

subject of climate change to be 

insufficiently specific to Aztec gilia to 

be considered substantial. Additionally, 

no data are available to evaluate 

whether long-term weather patterns 

have negatively affected the habitat or 

population sizes of Aztec gilia. In fact, 

we are not aware of any Aztec gilia 

populations that have been extirpated 

since 1986, nor are we aware of 

monitoring data to compare population 

sizes to determine whether there has 

been a downward trend in the number 

of plants across the range of the species. 

Based on these results, we find that the 

information provided in the petition, as 

well as other information readily 

available in our files, does not present 

substantial scientific or commercial 

information indicating that the 

petitioned action may be warranted due 

to threats from climate change. 

Narrow Range 

The petitioner states that because the 

Service routinely recognizes small 

population size and restricted range as 

increasing the likelihood of extinction, 

Aztec gilia should be considered 

particularly vulnerable (WildEarth 

Guardians 2010, p. 21). The petitioner 

asserts that the species’ limited range 

indicates vulnerability to weather 

events, such as drought and storms, 

suggesting the Service should consider 

this plant’s narrow range a threat to the 

taxon (WildEarth Guardians 2010, 

p. 21). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

No specific information was provided 

or is available in our files to indicate 

that Aztec gilia may be imperiled by its 

population size or narrow range. The 

petitioner provides information about 

generalized threats to other species with 

limited population size or small 

geographic ranges, but they are located 

on islands in the Pacific Ocean and not 

relevant to Aztec gilia. Therefore, we 

find that the information provided in 

the petition, as well as other 

information readily available in our 

files, does not present substantial 

scientific or commercial information 

indicating that the petitioned action 

may be warranted due to concerns about 

small population sizes and a narrow 

range. 

Finding 

The petition does not present 

substantial information on whether oil 

and gas activities, surface mining, road 

construction and use, off-road vehicle 

use, electric transmission line 

construction, domestic livestock 

grazing, human population growth, 

other BLM land uses, inadequate 

regulatory mechanisms, limited ability 

to reseed or transplant, climate change, 

small population size, or a restricted 

range may threaten Aztec gilia 

populations and their habitat. Even 

though Aztec gilia and its habitat may 

be exposed to the factors listed above, 

this does not necessarily mean that the 

species may be threatened by those 

factors. We found very few negative 

impacts to the plant resulting, or 

documented, from the potential threats 

cited in the petition or in our review of 

information readily available in our 

files. The petitioner cites generalized 

information about potential impacts that 

can occur due to these situations and 

stressors. Little information is presented 

in the petition regarding the magnitude 

of potential impacts on the species, or 

whether the potential impacts may have 

population-level effects. The loss of a 

few individuals does not necessarily 

mean that the species may be in danger 

of extinction. Our review of the readily 

available information indicates that the 

species appears to be maintaining its 

presence in all known locations 

throughout its range. 

In summary, we find no information 

to suggest that threats are acting on 

Aztec gilia such that the species may be 

in danger of extinction now or in the 

foreseeable future. On the basis of our 

determination under section 4(b)(3)(A) 

of the Act, we conclude that the petition 

does not present substantial scientific or 

commercial information to indicate that 

listing Aztec gilia under the Act as 

endangered or threatened may be 

warranted at this time. 

Although we will not review the 

status of the species at this time, we 

encourage interested parties to continue 

to gather data that will assist with the 

conservation of Aztec gilia. If you wish 

to provide information regarding Aztec 

gilia, you may submit your information 

or materials to the Field Supervisor/ 

Listing Coordinator, New Mexico 

Ecological Services Field Office, U.S. 

Fish and Wildlife Service (see 

ADDRESSES section, above), at any time. 

References Cited 

A complete list of all references cited 

in this finding is available upon request 

from the New Mexico Ecological 

Services Field Office (see ADDRESSES

section, above). 

Authors 

The primary authors of this rule are 

the staff members of the New Mexico 

Ecological Services Office (see FOR

FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: April 18, 2012. 

Gregory E. Siekaniec, 

Deputy Director, Fish and Wildlife Service. 

[FR Doc. 2012–10049 Filed 4–25–12; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2011–0030; 

FXES11130900000C6–123–FF09E30000; 

92220–1113–0000–C6] 

RIN 1018–AW02 

Endangered and Threatened Wildlife 

and Plants; Revising the Proposed 

Special Rule for the Utah Prairie Dog 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Supplemental notice of 

proposed rulemaking; reopening of 

public comment period and notice of 

document availability. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service) notify the 

public that we are making changes to 

our proposed rule of June 2, 2011, to 

revise the special rule for the Utah 

prairie dog (Cynomys parvidens). We 

are reopening the comment period 

because we are making substantive 

changes and one addition to our 

proposed rule based on public and peer 

review comments received. Comments 

previously submitted will be considered 

and do not need to be resubmitted now. 

However, we invite comments on the 

new information presented in this 

announcement relevant to our 

consideration of these changes, as 

described below. We encourage those 

who may have commented previously to 

submit additional comments, if 

appropriate, in light of this new 

information. We are also making 

available for public review the draft 


emcdonald on DSK29S0YB1PROD with PROPOSALS
24916 Federal Register / Vol. 77, No. 81 / Thursday, April 26, 2012 / Proposed Rules 

Environmental Assessment (EA) on our 

proposed actions, in accordance with 

the National Environmental Policy Act. 

DATES: To ensure that we are able to 

consider your comments and 

information, we request that we receive 

them no later than May 29, 2012. Please 

note that, if you are using the Federal 

eRulemaking Portal (see ADDRESSES, 

below), the deadline for submitting an 

electronic comment is 11:59 p.m., 

Eastern Daylight Saving Time on this 

date. We may not be able to address or 

incorporate information that is 

submitted after the above requested 

date. We must receive requests for 

public hearings, in writing, at the 

address shown in FOR FURTHER

INFORMATION CONTACT by May 11, 2012. 

ADDRESSES: Electronic copies of the 

2011 proposed revision to the special 

rule for the Utah prairie dog, comments 

received on that proposal, and the draft 

EA for the proposed special rule can be 

obtained at http://www.regulations.gov, 

Docket No. [FWS–R6–ES–2011–0030]. 

You may submit comments by one of 

the following methods: 

Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Search box, 

enter Docket No. [FWS–R6–ES–2011– 

0030], which is the docket number for 

this rulemaking. Follow the instructions 

for submitting a comment. 

By hard copy: Submit by U.S. mail or 

hand-delivery: to Public Comments 

Processing, Attention: [FWS–R6–ES– 

2011–0030]; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 North Fairfax 

Drive, MS 2042–PDM; Arlington, VA 

22203. 

We will post all comments on 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more details). 

Copies of Documents: The June 2, 

2011, proposed rule and draft EA are 

available on http://www.regulations.gov. 

In addition, the supporting files for the 

proposed rule and draft EA will be 

available for public inspection, by 

appointment, during normal business 

hours, at the Utah Ecological Services 

Field Office, 2369 West Orton Circle, 

West Valley City, Utah 84119, telephone 

801–975–3330. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

FOR FURTHER INFORMATION CONTACT: 

Larry Crist, Field Supervisor, (telephone 

801–975–3330; facsimile 801–975– 

3331). Direct all questions or request for 

additional information to: UTAH 

PRAIRIE DOG SPECIAL RULE 

QUESTIONS, U.S. Fish and Wildlife 

Service, Utah Ecological Services Field 

Office, 2369 West Orton Circle, Suite 50, 

West Valley City, UT 84119. Individuals 

who are hearing-impaired or speechimpaired may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339 for TTY assistance. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We want any final rule resulting from 

this proposal to be as effective as 

possible. Therefore, we invite tribal and 

governmental agencies, the scientific 

community, industry, and other 

interested parties to submit comments 

regarding our recommendations 

regarding the six substantive changes to 

our proposed rule, and comments on 

our draft EA associated with our 

proposed revised special rule for the 

Utah prairie dog. Comments should be 

as specific as possible. 

Before issuing a final rule to 

implement this proposed action, we will 

take into account all comments and any 

additional information we receive. Such 

communications may lead to a final rule 

that differs from our proposal. All 

comments, including commenters’ 

names and addresses, if provided to us, 

will become part of the supporting 

record. 

You may submit your comments and 

materials concerning our changes to the 

proposed rule, and/or our draft 

Environmental Assessment by one of 

the methods listed in the ADDRESSES

section. Comments must be submitted to 

http://www.regulations.gov before 

11:59 p.m. (Eastern Time) on the date 

specified in the DATES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If you provide 

personal identifying information in your 

comment, you may request at the top of 

your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours at the U.S. Fish and Wildlife 

Service, Utah Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

The Endangered Species Act of 1973, 

as amended (Act or ESA) (16 U.S.C. 

1531 et seq.), provides measures to 

prevent the loss of species and their 

habitats. Section 4 of the Act sets forth 

the procedures for adding species to the 

Lists of Endangered and Threatened 

Wildlife and Plants, and section 4(d) 

authorizes the Secretary of the Interior 

(Secretary) to extend to threatened 

species the prohibitions provided for 

endangered species under section 9. Our 

implementing regulations for threatened 

wildlife, found at title 50 of the Code of 

Federal Regulations (CFR) in § 17.31, 

incorporate the section 9 prohibitions 

for endangered wildlife, except when a 

special rule is promulgated. Under 

section 4(d) of the Act, the Secretary 

may specify the prohibitions and any 

exceptions to those prohibitions that are 

appropriate for a threatened species, 

provided that those prohibitions and 

exceptions are necessary and advisable 

to provide for the species’ conservation. 

A special rule issued under section 4(d) 

of the Act for a threatened species 

includes provisions tailored specifically 

for the conservation needs of that 

species, and these provisions may be 

more or less restrictive than the general 

provisions at 50 CFR 17.31. 

Since 1984, the Service has 

implemented a special rule for the Utah 

prairie dog. This special rule (also 

referred to as a ‘‘4(d) rule’’) is found in 

50 CFR 17.40(g). We published a 

proposed rule to revise the current 

special rule for the Utah prairie dog on 

June 2, 2011 (76 FR 31906). It is our 

intent in this document to discuss only 

those topics directly relevant to (1) our 

substantive changes to our June 2, 2011, 

proposed rule (76 FR 31906) to revise 

the special rule for the Utah prairie dog, 

and (2) information related to our draft 

environmental assessment. For more 

information on previous Federal actions 

concerning the special rule for Utah 

prairie dogs and species information, 

refer to the June 2, 2011, proposed rule, 

which is available online at http:// 

www.regulations.gov at Docket Number 

FWS–R6–ES–2011–0030, or by 

appointment during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Utah Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Previous Federal Actions 

Our 1984 special regulations for the 

Utah prairie dog, as amended in 1991, 

did not apply the take prohibitions 

described in section 9 of the ESA to 

activities occurring on private lands 

across the range of the species, under a 

permit system developed by the Utah 

Division of Wildlife Resources (UDWR), 

as authorized by Utah Code R657–19–6 

and R657–19–7. Our June 2, 2011 (76 FR 

31906), proposed rule would revise the 


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1991 rule to provide limits to the 

allowable take and to expand the range 

of otherwise legal activities where 

applying the take prohibitions in section 

9 of the Act is not necessary and 

advisable. Our June 2, 2011, proposal 

had a 60-day comment period, ending 

August 2, 2011. We received no requests 

for a public hearing; therefore, no public 

hearing was held. 

Draft Environmental Assessment 

We have prepared a draft EA 

analyzing the proposed revisions to our 

4(d) regulations. The draft EA 

incorporates the substantive changes to 

our proposed rule, as described in the 

following section. We evaluated three 

alternatives in the draft EA: 

1. Alternative 1 (No Action)— 

continuation of the current special rule 

as implemented by the UDWR 

permitting process under Utah State 

Code R657–19–6 and R657–19–7. 

2. Alternative 2 (Preferred Action)— 

limiting where direct take can be 

permitted, limiting the amount of 

rangewide direct take allowed, 

providing site-specific limits on the 

amount of direct take, identifying timing 

of permitted direct take, identifying 

methods allowed to implement direct 

take, and adding incidental take 

authorization for standard agricultural 

practices. 

3. Alternative 3—promulgating the 

blanket 4(d) rule that applies all 

Endangered Species Act section 9(a) 

take prohibitions to the Utah prairie 

dog. Under this alternative, lethal take 

would not be allowed unless permitted 

pursuant to section 10(a)(1)(A) of the 

Act. 

We are seeking comment on the draft 

EA, which is available upon request or 

online at http://www.regulations.gov at 

Docket No. FWS–R6–ES–2011–0030 or 

at http://www.fws.gov/mountain-prairie/ 

species/mammals/UTprairiedog/ 

index.htm. 

Addition to the Proposed Rule— 

Allowing Take Where Utah Prairie Dogs 

Cause Serious Human Safety Hazards or 

Disturb the Sanctity of Significant 

Human Cultural or Burial Sites 

Public comments received on our 

June 2, 2011, proposed rule included a 

recommendation that we should amend 

the proposed 4(d) rule to allow take in 

situations where human safety is at risk 

and in cemeteries. We are now 

proposing to include properties where 

Utah prairie dogs create serious human 

safety hazards or disturb the sanctity of 

significant cultural or human burial 

sites as locations where take would not 

be prohibited. 

Take would be allowed in these areas 

when Utah prairie dogs are determined, 

with the written approval of the Service 

to be presenting a serious human safety 

hazard (e.g., airport safety areas, 

recreational sports fields, nursing 

homes, schools), or disturbing the 

sanctity of a significant human cultural 

or human burial site sites (e.g., public 

cemetery, sacred tribal sites) if these 

lands are determined not necessary for 

the conservation of the species. No 

UDWR permit would be required in 

these instances. This change would only 

apply to areas where a credible, serious 

public safety hazard or harm to 

significant human cultural or human 

burial sites could be clearly 

demonstrated. Areas of serious human 

safety hazards would not include public 

rangelands or properties being 

developed for residential or commercial 

uses. In addition, we would not intend 

for this rule to be used to eliminate 

prairie dogs because of concerns 

regarding plague transmission to 

humans, unless this disease becomes a 

proven human safety issue in the future, 

and is directly linked to the presence of 

Utah prairie dogs in specific 

circumstances. 

Lethal take in these situations would 

be used as a last resort, and only 

allowable after all practicable measures 

to resolve the conflict are implemented. 

All practicable measures means, with 

respect to these situations, the (1) 

construction of a prairie-dog proof 

fence, above and below grade to 

specifications approved by the Service, 

around the area in which there is 

concern, and (2) translocation of Utah 

prairie dogs out of the area in which 

there is a concern. Lethal take would be 

allowed only to remove prairie dogs that 

remain in these areas after the measures 

to fence and translocate are successfully 

carried out. Despite our best engineering 

efforts, prairie-dog proof fences may still 

be breached by prairie dogs. The local 

communities or private entities would 

be required to maintain the fence, fix 

any breaches, or modify the fences as 

necessary to limit access of prairie dogs 

in order for the lethal take authorization 

to be sustained long-term. These 

qualifying circumstances would be 

certified in writing by the Service 

following any necessary site visits and 

coordination with the requesting entity. 

As stated above, a UDWR permit would 

not be required to allow take under 

these conditions. 

We would not limit the amount, 

timing, or methods of lethal take 

allowed on lands where Utah prairie 

dogs create serious human safety 

hazards or disturb the sanctity of 

significant human cultural or human 

burial sites, as long as the qualifying 

circumstances described above are met. 

These sites are relatively small areas, 

would be fenced, and prairie dogs 

would be removed by translocation 

prior to the permitting of lethal take. 

Thus, we expect that the numbers of 

Utah prairie dogs lethally removed 

would be small. In addition, these areas 

do not contribute to conservation of the 

species because they are generally 

within otherwise developed areas with 

substantial human activity and habitat 

fragmentation. 

Substantive Changes to the Proposed 

Rule 

Based on public and peer review 

comments received on our June 2, 2011, 

proposed rule, we are proposing to 

make substantive changes for our final 

rule. These changes are described below 

in response to the comments received, 

and tables comparing the provisions of 

the current special rule, the proposed 

revisions to that rule, and the Utah code 

follows this discussion. 

Permitting Take 

We received a comment from the 

State of Utah recommending that 

entities other than the UDWR be 

allowed to issue permits for control of 

Utah prairie dogs. The previous special 

rules (49 FR 22330, May 29, 1984; 56 FR 

27438, June 14, 1991) allowed take of 

Utah prairie dogs when permitted by 

UDWR. Under these rules, UDWR 

biologists were required to count Utah 

prairie dogs, determine extent of 

damage, determine level of take, and 

issue permits to applicants who 

requested the ability to control prairie 

dogs on their lands. At the time the 

previous rules were published, UDWR 

biologists were likely the only persons 

with the expertise to perform these 

permitting tasks. However, we now have 

a larger partnership effort, in the form 

of the Utah Prairie Dog Recovery 

Implementation Program, in which 

members of other state, federal, tribal, 

local entities and the public are working 

together on various programs to 

facilitate the species’ recovery. Because 

of this partnership, we can reasonably 

assume that other entities may be 

available to conduct many of the 

permitting responsibilities previously 

undertaken by the UDWR. Approved 

permitting entities would at a minimum 

be required to employ a sufficient 

number of professional wildlife 

biologists to conduct all permitting 

responsibilities; request and complete 

permitting training from the UDWR for 

staff assigned to permitting; complete 

the Service’s annual Utah prairie dog 

survey training; maintain a complete 


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reporting and tracking system for take, 

including annual reports on the number 

and location of permits issued, spring 

population counts and boundaries of 

permitted colonies, number of animals 

allowed to be taken, number of animals 

actually taken, method of take, and 

method of disposal of all Utah prairie 

dogs taken. Thus, we are proposing that 

this special rule will allow, with the 

Service’s written approval, other entities 

to perform the permitting and reporting 

tasks for control activities formerly only 

conducted by UDWR. 

Limiting the Amount and Distribution 

of Direct Take That Can Be Permitted 

In this section of the proposed rule, 

we propose to make changes to (1) 

limiting take by season and (2) limiting 

the amount of take— 

(1) Limiting Take by Season—One 

commenter recommended that we revise 

our timing of permitted take from June 

1 to July 1 on the Awapa and 

Paunsaugunt recovery units to protect 

pups in these areas, which emerge later 

than those within the West Desert 

Recovery Unit. We reviewed the 

available literature and discussed the 

permit dates with the Utah Prairie Dog 

Recovery Team relative to differences in 

pup emergence from dens in the lower 

elevations of the West Desert Recovery 

Unit as compared to the Awapa and 

Paunsaugunt Recovery Units. Generally, 

pups emerge from their dens earlier in 

the West Desert Recovery Unit as 

compared to the Awapa and 

Paunsaugunt Recovery Units. We 

propose to allow direct lethal take to 

start on June 15 each year throughout 

the range of the species, including the 

West Desert Recovery Area. Despite the 

earlier emergence of pups in the West 

Desert, we find it prudent for 

consistency and simplicity to select a 

range of dates best supported by the 

available scientific information to apply 

throughout the range of the species. 

This is a moderate change from the 

dates of June 1 through December 31 

proposed in our June 2, 2011 proposed 

rule and authorized by the 1991 special 

rule. 

Our proposed change is based on our 

most current knowledge of the species 

biology: pups emerge from their 

burrows by mid to late June at which 

time they are foraging independently 

(Hoogland 2003, p. 236). Therefore, the 

loss of female adult prairie dogs after 

the pups emerge from their dens would 

not negatively affect the survivability of 

the remaining young. In addition, 

prairie dog populations with seasonal 

shooting closures of March 14 to June 15 

show positive population growths and 

low to negligible risk of extirpation 

(Colorado Division of Wildlife 2007, p. 

135). These seasonal shooting closure 

dates directly correspond to our 

proposed timing of June 15 through 

December 31 for allowing direct lethal 

take. Thus, we can conclude that 

restricting use of the 4(d) rule between 

the dates of January 1 through June 14 

would result in positive population 

growths with low to negligible risk of 

extinction. This conclusion is supported 

by our observations that we have never 

verified the loss of a Utah prairie dog 

colony because of take permitted by 

UDWR, and prairie dog counts have 

remained stable to increasing on sites 

where permits were repeatedly 

requested over the last 25 years (Day 

2010). In this timeframe, UDWR 

provided permits to landowners 

beginning June 1. Thus, our proposed 

revision to June 15 is more conservative 

than past practice, and is based on the 

best current available science. 

(2) Limiting the Amount of Take—We 

received comments from a couple of 

peer reviewers questioning whether our 

proposed rule was supported by the 

available modeling of population 

responses to shooting. Based on the 

comments, we reevaluated the available 

literature. 

According to the literature, a harvest 

rate based on a percentage of the known 

population (i.e., fluctuating harvest rate) 

can ensure the maintenance of a 

sustainable population, with no risk of 

extinction (Reeve and Vosburgh 2006, 

pp. 123–125). Our June 2, 2011, 

proposed rule limits the allowable 

permitted direct take on agricultural 

lands and properties neighboring 

conservation lands to no more than 10 

percent of the estimated annual 

rangewide population (adults and 

juveniles)—agricultural lands would be 

limited to take not exceeding 7 percent 

of the estimated annual rangewide 

population and the remaining allowable 

take is reserved for properties 

neighboring conservation lands. We 

conclude that our proposed limit is a 

fluctuating harvest rate, is conservative, 

based on available modeling, and will 

continue to result in stable to increasing 

Utah prairie dog population trends. 

Therefore, we do not propose to change 

this portion of our proposed rule based 

on the available literature. 

Our proposed rule of June 2, 2011, 

established that UDWR could only 

permit direct lethal take under the 

revised 4(d) rule on prairie dog colonies 

that had a minimum spring count of five 

animals (total population estimate = 36 

animals; see our June 2, 2011, proposed 

rule for population calculations). After 

reviewing public and peer review 

comments, we are now proposing that a 

minimum spring count of seven animals 

(total population estimate = 50 animals) 

is established to ensure that permits are 

authorized only where resident prairie 

dogs have become established on 

agricultural lands and to ensure that 

shooting does not result in the loss of a 

colony. If the maximum amount of take 

(one-half of the colony’s productivity = 

18 prairie dogs) occurs on this size 

colony, it would reduce the total colony 

size to 32 animals prior to the following 

breeding season. Colonies of at least 25 

prairie dogs are likely to show 

population growth with very little risk 

of extinction. Populations with 50 or 

greater animals show no risk of 

extinction and strong population growth 

(Colorado Division of Wildlife 2007, p. 

128). Therefore, we would expect 

prairie dog colonies of 32 animals to 

continue to exist long-term with annual, 

regulated shooting pressure. This 

conclusion is supported by our 

observations that we have never verified 

the loss of a Utah prairie dog colony 

because of take permitted by UDWR and 

prairie dog counts have remained stable 

to increasing on sites where permits 

were repeatedly requested since 1985 

(Day 2010). 

In addition, we are proposing to 

include a provision that UDWR or other 

entities (as described above) would 

spatially distribute the 7 percent 

allowed take on agricultural lands 

across the three Recovery Units, based 

on the distribution of the total annual 

population estimate within each 

Recovery Unit. This spatial distribution 

will help ensure that the take is not 

clustered in one area, and is instead 

more uniform based on comparative 

annual population numbers. 

Several commenters, including peer 

reviewers, were confused because we 

used two numeric limits to take—an 

upper annual limit of 6,000 Utah prairie 

dogs, and a limit based on calculating 

10 percent of the total estimated annual 

rangewide Utah prairie dog population. 

We propose to limit take using only 

the 10 percent limit. This is a 

fluctuating harvest rate that is supported 

by the available literature and based on 

total annual Utah prairie dog population 

numbers. Therefore, we do not believe 

there is a need to place an additional 

limit at 6,000 animals annually. 

We conclude that these proposed 

changes are consistent with the 

available population models and ensure 

that our proposed rule is based on the 

best available science. These proposed 

changes are more restrictive than past 

practice under the 1984 special rule, as 

amended in 1991. In the last 25 years, 

Utah prairie dog population trends have 

remained stable to increasing. Thus, we 


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conclude that these proposed changes 

will continue to support Utah prairie 

dog conservation efforts and are based 

on the best available science. 

Limiting Methods Allowed To 

Implement Direct Take 

One peer reviewer recommended that 

we prohibit the use of gas cartridges, 

anticoagulants, and explosive devices as 

methods of permissible lethal control. 

The revised 4(d) rule would specifically 

prohibit the use of gas cartridges, 

anticoagulants, and explosive devices as 

methods of permissible lethal control on 

agricultural lands and properties 

adjacent to conservation lands. These 

types of methods could be applied 

across large areas and kill large numbers 

of prairie dogs. These techniques do not 

allow control agents to target a specific 

number of prairie dogs or track actual 

take. However, the use of any 

methodology will be allowed in areas 

where Utah prairie dogs create serious 

human safety hazards or disturb the 

sanctity of significant cultural or human 

burial sites (see Addition to the 

Proposed Rule—Allowing Take at 

Significant Human Cultural or Burial 

Sites, above). 

Summary 

Table 1 describes the Current Special 

Rule and Practice of 1991, the revisions 

we proposed in our June 2, 2011 rule 

(76 FR 311906), and the additions and 

changes included in this revised 

proposed rule. Table 2 provides a 

summary of our proposed amendments 

to the existing special rule based on 

both our June 2, 2011, proposed rule 

and the additions and changes 

described in this revised proposed rule. 

TABLE 1—COMPARISON OF THE CURRENT RULE AND PRACTICE (1991); THE PROPOSED RULE OF JUNE 2, 2011 AND THIS

REVISED PROPOSED RULE

Current rule and practice 

(1991) 

Proposed rule 

(2011) 

Revised proposed rule 

(2012) 

Who Can Allow 

Take.

Utah Division of Wildlife Resources 

(UDWR).

UDWR ................................................... UDWR, or other entities with the Service’s written approval. 

Add that no permit is needed where 

prairie dogs create serious human 

safety hazards or disturb the sanctity 

of significant human cultural or burial 

sites. Written approval from the 

Service is sufficient in these circumstances. 

Where Direct Take 

Is Allowed.

Existing Special Rule—private lands ....

Utah Code— agricultural lands 

Agricultural lands and properties adjacent to conservation lands.Retain agricultural lands and properties 

adjacent to conservation lands. 

Add properties where prairie dogs create serious human safety hazards or 

disturb the sanctity of significant 

human cultural or burial sites. 

Amount of 

Rangewide Direct 

Take Allowed.

6,000 animals annually ......................... Maintains the current rule’s upper annual permitted take limit of 6,000 

animals. Adds a condition that the 

upper permitted take limit may not 

exceed 10 percent of the estimated 

rangewide population annually.

The upper annual permitted take limit 

of 6,000 animals annually is removed. 

The upper permitted take limit may not 

exceed 10 percent of the estimated 

rangewide population annually; and, 

on agricultural lands, may not exceed 7 percent of the estimated annual rangewide population annually. 

Take in areas where prairie dogs create serious human safety hazards or 

disturb the sanctity of significant 

human cultural or burial sites does 

not contribute to the take allowance. 

Site Specific Limits 

on Amount of Direct Take.

No restrictions specified ....................... On agricultural lands, within-colony 

take is limited to one-half of a colony’s estimated annual production 

(approximately 36 percent of estimated total population). On properties neighboring conservation 

lands, take is restricted to animals in 

excess of the baseline population.

Retain limits of Proposed Rule for agricultural lands and properties neighboring conservation lands. 

Add that there are no limits on the 

amount of direct take where prairie 

dogs create serious human safety 

hazards or disturb the sanctity of significant human cultural or burial 

sites. 

Timing of Allowed 

Direct Take.

June 1 to December 31 ........................ June 15 to December 31 ...................... Retain the June 15 to December 31 

seasonal limits on agricultural lands 

and properties neighboring conservation lands. 

Add that there is no timing restriction 

where prairie dogs create serious 

human safety hazards or disturb the 

sanctity of significant human cultural 

or burial sites, except that 

translocations will be conducted before lethal measures of control are 

allowed. 


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TABLE 1—COMPARISON OF THE CURRENT RULE AND PRACTICE (1991); THE PROPOSED RULE OF JUNE 2, 2011 AND THIS

REVISED PROPOSED RULE—Continued 

Current rule and practice 

(1991) 

Proposed rule 

(2011) 

Revised proposed rule 

(2012) 

Methods Allowed to 

Implement Direct 

Take.

Existing Special Rule—no restrictions 

specified.

Utah Code—limited to firearms and 

trapping, and chemical toxicants 

specifically prohibited 

Limited to translocations, trapping intended to lethally remove prairie 

dogs, and shooting. Actions intended 

to drown or poison prairie dogs, and 

the use of gas cartridges, 

anticoagulants, and explosive devices are prohibited.

Retain restrictions on agricultural lands 

and properties neighboring conservation lands. 

Add that no restrictions on methods to 

implement direct take are applied to 

areas where prairie dogs create serious human safety hazards or disturb 

the sanctity of significant human cultural or burial sites, except that 

translocations will be conducted before lethal measures of control are 

allowed. 

Service Ability to 

Further Restrict 

Direct Take.

The Service may immediately prohibit 

or restrict such taking as appropriate 

for the conservation of the species.

Unchanged ............................................ Unchanged. 

Incidental Take ...... Not authorized ...................................... Authorized when take is incidental to 

otherwise legal activities associated 

with standard agricultural practices.

Unchanged. 

TABLE 2—SUMMARY OF OUR PROPOSED AMENDMENTS

Proposed amendments 

Who Can Allow Take ...................... UDWR or, with the Service’s written approval, other entities can perform the permitting and reporting tasks 

for control activities on agricultural lands or properties adjacent to conservation lands. No permits are required for take in areas where prairie dogs create serious human safety hazards or disturb the sanctity 

of significant human cultural or burial sites. 

Where Direct Take Is Allowed ........ Direct take is limited to: Agricultural land being physically or economically impacted by Utah prairie dogs 

when the spring count on the agricultural lands is seven or more individuals; private properties within 0.8 

km (0.5 mi) of Utah prairie dog conservation land; and areas where human safety hazards or the sanctity of significant cultural or human burial sites are a serious concern, but only after all practicable measures to resolve the conflict are implemented. 

Amount of Rangewide Direct Take 

Allowed.

The upper permitted take limit may not exceed 10 percent of the estimated rangewide population annually 

for agricultural lands and properties adjacent to conservation lands; and, on agricultural lands, may not 

exceed 7 percent of the estimated annual rangewide population annually. There is no limit for the 

amount of take in areas where prairie dogs create serious human safety hazards or disturb the sanctity 

of significant human cultural or burial sites, and take in these circumstances does not contribute to the 

upper permitted take limits described above. 

Site-Specific Limits on Amount of 

Direct Take.

On agricultural lands, within-colony take is limited to one-half of a colony’s estimated annual production 

(approximately 36 percent of estimated total population). On properties neighboring conservation lands, 

take is restricted to animals in excess of the baseline population. The baseline population is the highest 

estimated total (summer) population size on that property during the 5 years prior to establishment of the 

conservation property. There are no site-specific direct take limits in areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites. 

Timing of Allowed Direct Take ........ The timing of permitted direct take on agricultural lands and properties adjacent to conservation lands is 

limited to June 15 through December 31. There is no timing restriction where prairie dogs create serious 

human safety hazards or disturb the sanctity of significant human cultural or burial sites, except that 

translocations must be completed prior to conducting any lethal take. 

Methods Allowed to Implement Direct Take.On agricultural lands and properties adjacent to conservation lands, direct take is limited to activities associated with translocation efforts by trained and permitted individuals complying with current Service-approved guidance, trapping intended to lethally remove prairie dogs, and shooting. Actions intended to 

drown or poison prairie dogs, and the use of gas cartridges, anticoagulants, or explosive devices is prohibited in these areas. There are no restrictions on methods to implement take in areas where prairie 

dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial 

sites, except that translocations will be conducted before lethal measures of control are allowed. 

Service Ability to Further Restrict 

Direct Take.

Unchanged. 

Incidental Take ................................ Utah prairie dogs may be taken when take is incidental to otherwise legal activities associated with standard agricultural practices (see rule for specifics). 

Required Determinations 

Regulatory Planning and Review 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this proposed rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination upon the following 

four criteria: 

a. Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government; 


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b. Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions; 

c. Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients; or 

d. Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended RFA to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Thus, for a regulatory flexibility analysis 

to be required, impacts must exceed a 

threshold for ‘‘significant impact’’ and a 

threshold for a ‘‘substantial number of 

small entities.’’ See 5 U.S.C. 605(b). 

Based on the information that is 

available to us at this time, we certify 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

Utah prairie dogs have been listed 

under the ESA since the early 1970s (38 

FR 14678, June 4, 1973; 39 FR 1158, 

January 4, 1974). A 4(d) special rule has 

been in place since 1984 that provides 

protections deemed necessary and 

advisable to provide for the 

conservation of the species (49 FR 

22330, May 29, 1984; 56 FR 27438, June 

14, 1991). These special regulations 

allow limited take of Utah prairie dogs 

on private land from June 1 through 

December 31, as permitted by UDWR 

(50 CFR 17.40(g)). While this proposed 

rule places limits on the current special 

rule, the proposed changes are largely 

consistent with current UDWR 

permitting practices. Because this 

proposal largely institutionalizes 

current practices, there should be little 

or no increased costs associated with 

this proposed regulation compared to 

the past similar special rules that were 

in effect for the last several decades. 

In summary, we have considered 

whether the proposed rule would result 

in a significant economic impact on a 

substantial number of small entities. For 

the above reasons and based on 

currently available information, we 

certify that these amendments if 

promulgated would not have a 

significant economic impact on a 

substantial number of small entities. 

Therefore, an initial regulatory 

flexibility analysis is not required. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

a. If adopted, this proposal will not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, or Tribal governments, or 

the private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or [T]ribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

This proposed rule would not impose 

a legally binding duty on non-Federal 

Government entities or private parties. 

Instead, this proposed amendment to 

the existing special rule proposes to 

establish take authorizations and 

limitations deemed necessary and 

advisable to provide for the 

conservation of the Utah prairie dog. 

Application of the provisions within 

this proposed rule, as limited by 

existing regulations and this proposed 

amendment, is optional. 

b. We do not believe that this rule 

would significantly or uniquely affect 

small governments. The State of Utah 

originally requested measures such as 

this proposed regulation to assist with 

reducing conflicts between Utah prairie 

dogs and local landowners on 

agricultural lands (49 FR 22331, May 29, 

1984). In addition, the UDWR actively 

assists with implementation of the 

current special rule, and would do the 

same under this proposed regulation, 

through a permitting system. Thus, no 

intrusion on State policy or 

administration is expected; roles or 

responsibilities of Federal or State 

governments will not change; and fiscal 

capacity will not be substantially 

directly affected. The special rule 

operates to maintain the existing 

relationship between the States and the 

Federal Government. Furthermore, the 

proposed limitations on where 

permitted take can occur, the amount of 

take that can be permitted, and methods 

of take that can be permitted, are largely 

consistent with current UDWR 

practices. Therefore, the rule would not 

have a significant or unique effect on 

State, local, or Tribal governments or 

the private sector. A statement 

containing the information required by 

the Unfunded Mandates Reform Act is 

not required. 

Takings 

This action is exempt from the 

requirements of E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights). Specifically, according 

to section VI (D) (3) of the Attorney 

General’s Guidelines for the Evaluation 

of Risk and Avoidance of Unanticipated 

Takings, regulations allowing the take of 

wildlife issued under the ESA are 

categorically exempt. This proposed 

amendment pertains to regulation of 

take (defined by the ESA as ‘‘to harass, 

harm, pursue, hunt, shoot, wound, kill, 

trap, capture, or collect, or to attempt to 

engage in any such conduct’’) deemed 

necessary and advisable to provide for 

the conservation of the Utah prairie dog. 

Thus, this exemption applies to this 

action. 

Regardless, we do not believe this 

action would pose significant takings 

implications. This rule will 

substantially advance a legitimate 

government interest (conservation and 

recovery of listed species). However, it 

will not deny property owners 

economically viable use of their land, 

and will not present a bar to all 

reasonable and expected beneficial use 

of private property. We believe the 

existing special regulation and the 

proposed amendments provide 


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substantial flexibility to our partners 

while still providing for the 

conservation of the Utah prairie dog. 

Should additional take provisions be 

required, an applicant has the option to 

develop a Habitat Conservation Plan 

and request an incidental take permit 

(see Section 10(a)(1)(B) of the ESA). 

This approach would allow permit 

holders to proceed with an activity that 

is legal in all other respects, but that 

results in the ‘‘incidental’’ take of a 

listed species. 

We have concluded that this action 

would not result in any takings of 

private property. Should any takings 

implications associated with the 

proposed amendment be realized, they 

will likely be insignificant. 

Federalism 

In accordance with E.O. 13132 

(Federalism), this proposed rule would 

not have significant Federalism effects. 

A Federalism assessment is not 

required. In keeping with Department of 

the Interior and Department of 

Commerce policy, we requested 

information from, and coordinated 

development of this proposed 

amendment with, appropriate State 

resource agencies in Utah. The State of 

Utah originally requested measures such 

as this proposed regulation to assist 

with reducing conflicts between Utah 

prairie dogs and local landowners on 

agricultural lands (49 FR 22331, May 29, 

1984). In addition, the UDWR actively 

assists with implementation of the 

current special rule, and would do the 

same under this proposed regulation, 

through a permitting system. Thus, no 

intrusion on State policy or 

administration is expected; roles or 

responsibilities of Federal or State 

governments will not change, and fiscal 

capacity will not be substantially 

directly affected. The special rule 

operates and, if amended, would 

continue to operate to maintain the 

existing relationship between the State 

and the Federal government. Therefore, 

this rule does not have significant 

Federalism effects or implications to 

warrant the preparation of a Federalism 

Assessment pursuant to the provisions 

of Executive Order 13132. 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed this 

amendment to the existing special rule 

for the Utah prairie dog in accordance 

with the provisions of the ESA. Under 

section 4(d) of the ESA, the Secretary 

may extend to a threatened species 

those protections provided to an 

endangered species as deemed 

necessary and advisable to provide for 

the conservation of the species. The 

amendments proposed here satisfy this 

standard. 

Paperwork Reduction Act 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

In 1983, upon recommendation of the 

Council on Environmental Quality, the 

Service determined that National 

Environmental Policy Act (NEPA) 

documents need not be prepared in 

connection with regulations adopted 

pursuant to section 4(a) of the ESA. The 

Service subsequently expanded this 

determination to section 4(d) rules. A 

section 4(d) rule provides the 

appropriate and necessary prohibitions 

and authorizations for a species that has 

been determined to be threatened under 

section 4(a) of the ESA. It is our view 

that NEPA procedures unnecessarily 

overlay NEPA’s own matrix upon the 

ESA section 4 decisionmaking process. 

For example, the opportunity for public 

comment—one of the goals of NEPA— 

is already provided through section 4 

rulemaking procedures. This 

determination was upheld in Center for 

Biological Diversity v. U.S. Fish and 

Wildlife Service, No. 04–04324 (N.D. 

Cal. 2005). 

However, out of an abundance of 

caution, we developed a draft 

Environmental Assessment that is 

available for public inspection and 

comment. All appropriate NEPA 

documents will be finalized before this 

rule is finalized. 

Clarity of This Proposed Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

a. Be logically organized; 

b. Use the active voice to address 

readers directly; 

c. Use clear language rather than 

jargon; 

d. Be divided into short sections and 

sentences; and 

e. Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, and the sections where you 

feel lists or tables would be useful. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

Therefore, we intend to coordinate with 

affected Tribes within the range of the 

Utah prairie dog. We will fully consider 

all of the comments on the proposed 

special regulations that are submitted by 

Tribes and Tribal members during the 

public comment period, and we will 

attempt to address those concerns, new 

data, and new information where 

appropriate. 

Energy Supply, Distribution, or Use 

E.O. 13211, Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use, 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. We do not expect this 

action to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 


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References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from our Utah Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to further 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as proposed to be amended 

at 76 FR 31906, June 2, 2011, as follows: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

2. Amend § 17.40 by revising 

paragraphs (g)(1), (g)(2), (g)(3) 

introductory text, (g)(3)(i)(A), 

(g)(3)(ii)(A), (g)(3)(iii), (g)(4), and (g)(5) 

and adding paragraphs (g)(3)(iv) and 

(g)(6), to read as follows: 

§ 17.40 Special rules—mammals. 

* * * * * 

(g) * * * 

(1) Except as noted in paragraphs 

(g)(2) through (6) of this section, all 

prohibitions of § 17.31(a) and (b) and 

exemptions of § 17.32 apply to the Utah 

prairie dog. 

(2) A Utah prairie dog may be directly 

or intentionally taken as described in 

paragraphs (g)(3) and ((4) of this section 

on agricultural lands, properties 

adjacent to conservation lands, and 

areas where prairie dogs create serious 

human safety hazards or disturb the 

sanctity of significant human cultural or 

human burial sites. 

(3) Agricultural lands and properties 

adjacent to conservation lands. When 

permitted by the Utah Division of 

Wildlife Resources, or other parties as 

authorized in writing by the Service, 

direct or intentional take is allowed on 

agricultural land and private property 

near conservation land. Records on 

permitted take will be maintained by 

the State and made available to the 

Service upon request. 

(i) * * * 

(A) Take may be permitted only on 

agricultural land being physically or 

economically affected by Utah prairie 

dogs, only when the spring count on the 

agricultural lands is seven or more 

individuals, and only during the period 

of June 15 to December 31. 

* * * * * 

(ii) * * * 

(A) Take may be permitted on private 

properties near (within 0.8 km (0.5 mi)) 

of Utah prairie dog conservation land 

during the period of June 15 to 

December 31. 

* * * * * 

(iii) Amount of permitted take on 

agricultural lands and private property 

near conservation land. (A) The Utah 

Division of Wildlife Resources, or other 

parties as authorized in writing by the 

Service, will ensure that permitted take 

on agricultural lands and properties 

within 0.8 km (0.5 mi) of conservation 

lands does not exceed 10 percent of the 

estimated rangewide population 

annually. 

(B) On agricultural lands, the Utah 

Division of Wildlife Resources, or other 

parties as authorized in writing by the 

Service, will limit permitted take to 7 

percent of the estimated annual 

rangewide population and will limit 

within-colony take to one-half of a 

colony’s estimated annual production. 

The Utah Division of Wildlife 

Resources, or other parties as authorized 

in writing by the Service, will spatially 

distribute the 7 percent allowed take on 

agricultural lands across the three 

Recovery Units, based on the 

distribution of the total annual 

population estimate within each 

Recovery Unit. 

(C) In setting take limits on properties 

near conservation lands, the Utah 

Division of Wildlife Resources, or other 

parties as authorized in writing by the 

Service, will consider the amount of 

take that occurs on agricultural lands. 

The State will restrict the remaining 

permitted take (the amount that would 

bring the total take up to 10 percent of 

the estimated annual rangewide 

population) on properties neighboring 

conservation lands to animals in excess 

of the baseline population. The baseline 

population is determined in accordance 

with paragraph (g)(3)(iii)(D) of this 

section. 

(D) Take on properties within 0.8 km 

(0.5 mi) of conservation lands is 

restricted to prairie dogs in excess of the 

baseline population. The baseline 

population is the highest estimated total 

(summer) population size on that 

property during the 5 years prior to the 

establishment of the conservation 

property. The baseline population will 

be established by the Utah Division of 

Wildlife Resources, or other parties as 

authorized in writing by the Service. 

(E) Translocated Utah prairie dogs 

will count toward the take limits in 

paragraphs (g)(3)(iii)(A) through (D) of 

this section. 

(iv) Methods of allowed direct take on 

agricultural lands and private properties 

near conservation land. Methods for 

controlling Utah prairie dogs on 

agricultural lands and properties 

bordering conservation lands are limited 

to activities associated with 

translocation efforts by trained and 

permitted individuals complying with 

current Service-approved guidance, 

trapping intended for lethal removal, 

and shooting. Actions intended to 

drown or poison Utah prairie dogs and 

the use of gas cartridges, anticoagulants, 

and explosive devices are prohibited. 

(4) Human safety hazards and 

significant human cultural or burial 

sites. Direct or intentional take is 

allowed where Utah prairie dogs create 

serious human safety hazards or disturb 

the sanctity of significant human 

cultural or human burial sites, but only 

after all practicable measures to resolve 

the conflict are implemented, and only 

as approved in writing by the Service. 

A Utah Division of Wildlife Resources 

permit is not required to allow take 

under these conditions. 

(i) All practicable measures means, 

with respect to these situations: 

(A) Construction of prairie-dog-proof 

fence, above and below grade to 

specifications approved by the Service, 

around the area in which there is 

concern. 

(B) Translocation of Utah prairie dogs 

out of the area in which there is a 

concern. Lethal take is allowed only to 

remove prairie dogs that remain in these 

areas after the measures to fence and 

translocate are successfully carried out. 

(C) Continued maintenance or 

modification of the fence as needed to 

preclude Utah prairie dogs from 

entering the fenced sites. 

(ii) There are no restrictions on the 

amount, timing, or methods of lethal 

take allowed on lands where Utah 

prairie dogs create serious human safety 

hazards or disturb the sanctity of 

significant human cultural or human 

burial sites, as long as all qualifications 

in paragraphs (g)(4)(i)(A) through (C) of 

this section are met. 

(iii) The amount of take in areas 

where Utah prairie dogs create serious 

human safety hazards or disturb the 

sanctity of significant human cultural or 

human burial sites does not contribute 

to the upper permitted take limits 

described above for agricultural lands 

and private properties near conservation 

lands. 

(5) Incidental take. Utah prairie dogs 

may be taken when take is incidental to 

otherwise-legal activities associated 

with standard agricultural practices on 


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legitimately operating agricultural 

lands. Acceptable practices include 

plowing to depths that do not exceed 46 

cm (18 in.), discing, harrowing, 

irrigating crops, mowing, harvesting, 

and bailing, as long as these activities 

are not intended to eradicate Utah 

prairie dogs. There is no numeric limit 

established for incidental take 

associated with standard agricultural 

practices. Incidental take is in addition 

to, and does not contribute to the take 

limits described in paragraphs (g)(2) 

through (4) of this section. A Utah 

Division of Wildlife Resources permit is 

not required for incidental take 

associated with agricultural practices. 

(6) If the Service receives evidence 

that take pursuant to paragraphs (g)(2) 

through (5) of this section is having an 

effect that is inconsistent with the 

conservation of the Utah prairie dog, the 

Service may immediately prohibit or 

restrict such take as appropriate for the 

conservation of the species. 

* * * * * 

Dated: April 16, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–9884 Filed 4–25–12; 8:45 am] 

BILLING CODE 4310–55–P 


emcdonald on DSK29S0YB1PROD with PROPOSALS