[Federal Register: May 25, 2004 (Volume 69, Number 101)]
[Rules and Regulations]               
[Page 29669-29670]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT64

Withdrawal of Regulations Governing Incidental Take Permit 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 
regulations in part 17 of title 50 of the Code of Federal Regulations 
(CFR) regarding the revocation of incidental take permits issued under 
the authority of the Endangered Species Act (ESA). On December 11, 
2003, the U.S. District Court for the District of Columbia in Spirit of 
the Sage Council v. Norton, Civil Action No. 98-1873 (D.D.C.), 
invalidated 50 CFR 17.22(b)(8) and 17.32(b)(8), the regulations 
addressing Service authority to revoke incidental take permits under 
certain circumstances. The court ruled that we did not follow the 
public notice and comment procedures required by the Administrative 
Procedure Act (APA). This rule affects only 50 CFR 17.22(b)(8) and 
17.32(b)(8). In the Proposed Rules section of today's Federal Register 
is a rulemaking proposal to reestablish the provisions of 50 CFR 
17.22(b)(8) and 17.32(b)(8).

DATES: This rule is effective May 25, 2004.

ADDRESSES: The complete file for this rule is available, by 
appointment, during normal business hours, at 4401 North Fairfax Drive, 
Room 420, Arlington, VA 22203. You may call 703/358-2171 to make an 
appointment to view the files.

Consultation and Habitat Conservation Planning, at 4401 North Fairfax 
Drive, Room 420, Arlington, VA 22203 (Telephone 703/358-2106, Facsimile 

SUPPLEMENTARY INFORMATION: This rule applies to the U.S. Fish and 
Wildlife Service only. Therefore, the use of the terms ``Service'' and 
``we'' in this notice refers exclusively to the U.S. Fish and Wildlife 
    This rule applies only to 50 CFR 17.22(b)(8) and 17.32(b)(8), which 
pertain to revocation of incidental take permits. Regulations in 50 CFR 
17.22(c) and 17.32(c) that pertain to Safe Harbor Agreements (SHAs) and 
in 50 CFR 17.22(d) and 17.32(d) that pertain to Candidate Conservation 
Agreements with Assurances (CCAAs) are not affected by this final rule.


    On June 12, 1997 (62 FR 32189), we published proposed revisions to 
our general permitting regulations in 50 CFR part 13 to identify the 
situations in which permit provisions in part 13 would not apply to 
individual incidental take permits. On June 17, 1999 (64 FR 32706), we 
published final regulations that included a provision, hereafter 
referred to as the Permit Revocation Rule, that described circumstances 
under which incidental take permits could be revoked. The Permit 
Revocation Rule, which was codified at 50 CFR 17.22(b)(8) (endangered 
species) and 17.32(b)(8) (threatened species), provided that an 
incidental take permit ``may not be revoked * * * unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been 
remedied in a timely fashion.'' The criterion in 16 U.S.C. 
1539(a)(2)(B)(iv)--that ``the taking will not appreciably reduce the 
likelihood of the survival and recovery of the species in the wild''--
is substantially identical to the definition of ``jeopardize the 
continued existence of'' in the joint Department of the Interior/
Department of Commerce regulations implementing section 7 of the 
Endangered Species Act (50 CFR 402.02). In essence, the Permit 
Revocation Rule authorized the Service to revoke an incidental take 
permit if continuation of the permitted activity would jeopardize the 
continued existence of the listed species and the

[[Page 29670]]

jeopardy situation is not remedied in a timely fashion. On September 
30, 1999 (64 FR 52676), we published a correction to the regulations 
promulgated in our June 17, 1999 (64 FR 32706), final rule; however, 
the correction was not associated with permit revocation.
    On February 11, 2000 (65 FR 6916), we published a request for 
additional public comment on specific regulatory changes included in 
the June 17, 1999 (64 FR 32706), final rule, including the Permit 
Revocation Rule. Based on our review of the comments we received in 
response to the February 11, 2000 (65 FR 6916), request for comments, 
we published a notice on January 22, 2001 (66 FR 6483), that affirmed 
the provisions of the June 17, 1999 (64 FR 32706), final rule, 
including the Permit Revocation Rule.
    The plaintiffs in Spirit of the Sage Council v. Norton, Civil 
Action No. 98-1873 (D.D.C.), challenged the validity of the Permit 
Revocation Rule. On December 11, 2003, the court ruled that the public 
notice and comment procedures followed by the Service when promulgating 
the Permit Revocation Rule were in violation of the APA. The court 
vacated and remanded the Permit Revocation Rule to the Service for 
further consideration consistent with section 553 of the APA. In 
compliance with the court's order, we therefore withdraw the Permit 
Revocation Rule (50 CFR 17.22(b)(8) and 17.32(b)(8)).

Effective Date

    In accordance with 5 U.S.C. 553(d)(3), we find good cause to make 
this rule effective upon publication. Moreover, in accordance with 5 
U.S.C. 553(b)(3)(B), we find good cause that notice and public 
procedure for this rulemaking action are impracticable, unnecessary, or 
contrary to the public interest. We must remove the text identified in 
this rule from 50 CFR 17 because the December 11, 2003, court order in 
Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D.D.C.) 
vacated this text.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

For the reasons set out in the preamble, we amend title 50, chapter I, 
subchapter B of the Code of Federal Regulations, as set forth below.


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.

Sec.  17.22  [Amended]

2. Amend Sec.  17.22 by removing paragraph (b)(8).

Sec.  17.32  [Amended]

3. Amend Sec.  17.32 by removing paragraph (b)(8).

    Dated: April 12, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-11740 Filed 5-24-04; 8:45 am]