[Federal Register: May 25, 2004 (Volume 69, Number 101)]
[Proposed Rules]               
[Page 29681-29685]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT64

Endangered Species Act Incidental Take Permit Revocation 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend part 17 of title 50 of the Code of Federal Regulations (CFR) to 
add regulations that describe circumstances in which the Service may 
revoke 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 had adopted these regulations 
without adequately complying with the public notice and comment 
procedures required by the Administrative Procedure Act (APA) and 
remanded the regulations to us for further proceedings consistent with 
the APA. In the Rules and Regulations section of today's Federal 
Register is a final rule withdrawing the permit revocations regulations 
in 50 CFR 17 vacated by the court order. In this document, we are 
requesting public comments on our proposal to reestablish the permit 
revocation regulations vacated by the court.

DATES: Comments must be received by July 26, 2004.

ADDRESSES: You may submit comments, identified by RIN number 1018-AT64, 
by any of the following methods: (1)

[[Page 29682]]

Mail or hand delivery to the Chief, Division of Consultation, Habitat 
Conservation Planning, Recovery and State Grants, U.S. Fish and 
Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 
22203; (2) FAX: 703/358-2229; (3) E-mail: pprr@fws.gov; or (4) through 
the Federal eRulemaking Portal: http://www.regulations.gov. All 

submissions must include the identification number RIN 1018-AT64. The 
complete file for this proposed rule, including public comments, is 
available, by appointment, during normal business hours at the same 
address. You may call 703/358-2171 to make an appointment to view the 

Consultation and Habitat Conservation Planning, at the above address 
(Telephone 703/358-2171, Facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking 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 Service.
    This proposed rule applies only to 50 CFR 17.22(b) and 17.32(b), 
which pertain to 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 proposed 


Promulgation of the ``Permit Revocation Rule''

    The Service administers a variety of conservation laws that 
authorize the issuance of permits for otherwise prohibited activities. 
In 1974, we published 50 CFR part 13 to consolidate the administration 
of various permitting programs. Part 13 established a uniform framework 
of general administrative conditions and procedures that would govern 
the application, processing, and issuance of all Service permits. We 
intended the general part 13 permitting provisions to be in addition 
to, and not in lieu of, other more specific permitting requirements of 
Federal wildlife laws.
    We subsequently added many wildlife regulatory programs to title 50 
of the CFR. For example, we added part 18 in 1974 to implement the 
Marine Mammal Protection Act; modified and expanded part 17 in 1975 to 
implement the Endangered Species Act of 1973; and added part 23 in 1977 
to implement the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES). The regulations in these parts 
contain their own specific permitting requirements that supplement the 
general permitting provisions of part 13.
    With respect to the ESA, the combination of the general permitting 
provisions in part 13 and the specific permitting provisions in part 17 
has worked well in most instances. However, the Service has found that, 
in some areas of permitting policy under the Act, the ``one size fits 
all'' approach of part 13 has been inappropriately constraining and 
narrow. These areas include specifically the Habitat Conservation 
Planning, Safe Harbor Agreement, and Candidate Conservation Agreement 
with Assurances programs. Incidental take permitting under section 
10(a)(1)(B) of the ESA is one such area.
    On June 12, 1997 (62 FR 32189), we published proposed revisions to 
our general permitting regulations in 50 CFR part 13 to identify, among 
other things, the situations in which the permit provisions in part 13 
would not apply to individual incidental take permits. On June 17, 1999 
(64 FR 32706), we published a final set of regulations that included 
two provisions that relate to revocation of incidental take permits. 
The first provides that the general revocation standard in 50 CFR 
13.28(a)(5) will not apply to several types of ESA permits, including 
incidental take permits. The second provision, hereafter referred to as 
the Permit Revocation Rule, described circumstances under which 
incidental take permits could be revoked. 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.
    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 section 10(a)(2)(B)(iv) of the ESA (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 
one of the statutory criteria that incidental take permit applicants 
must meet in order to obtain a permit. The criterion is substantively 
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 ESA (50 CFR 402.02). In 
essence, the Permit Revocation Rule authorizes the Service to revoke an 
incidental take permit if continuation of the permitted activity would 
jeopardize the continued existence of a listed species and the jeopardy 
situation is not remedied in a timely fashion.
    On February 11, 2000 (65 FR 6916), we published a request for 
additional public comment on several 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, 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 ``No Surprises'' Rule Litigation and the Order To Vacate the Permit 
Revocation Rule

    On February 23, 1998 (63 FR 8859), the Service and the National 
Marine Fisheries Service jointly promulgated the so-called No Surprises 
Rule, which provides certainty to holders of incidental take permits by 
placing limits on the agencies' ability to require additional 
mitigation after an incidental take permit has been issued. The No 
Surprises Rule is codified by the Service at 50 CFR 17.22(b)(5) 
(endangered species) and 17.32(b)(5) (threatened species) and by the 
National Marine Fisheries Service at 50 CFR 222.307(g). For both 
agencies, the No Surprises Rule was added to pre-existing regulations 
pertaining to incidental take permits.
    In July 1998, a group of environmental plaintiffs challenged the No 
Surprises Rule in Spirit of the Sage Council v. Norton, Civil Action 
No. 98-1873 (D. D.C.). After the Service promulgated the Permit 
Revocation Rule on June 17, 1999 (64 FR 32706), the government referred 
to that rule in its briefs in the No Surprises Rule case to demonstrate 
that the agencies retained the ability to revoke incidental take 
permits notwithstanding the assurances in the No Surprises Rule. The 
plaintiffs subsequently amended their complaint to challenge 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.

[[Page 29683]]

The court did not rule on the validity of the No Surprises Rule, but 
found that the Permit Revocation Rule is relevant to the court's review 
of the No Surprises Rule. The court, therefore, ordered the Service to 
consider the No Surprises Rule together with the Permit Revocation Rule 
in any new rulemaking proceedings concerning revocation of incidental 
take permits containing No Surprises assurances.
    We are taking two rulemaking actions in response to the court 
order. First, in the Rules and Regulations section of today's Federal 
Register is a final rule withdrawing the permit revocation regulations, 
50 CFR 17.22(b)(8) and 17.32(b)(8), vacated by the court order. Second, 
in this notice we request public comments on our proposal to 
reestablish the permit revocation regulations the court vacated.

Summary of Previously Received Comments

    The following are comments we previously received on the Permit 
Revocation Rule; we will address these and other relevant issues in our 
final decision regarding this proposal. We received numerous comments 
on the provisions addressing permit revocation. The comments ranged 
widely, but generally fell into two categories: The agency did not go 
far enough with the revocation provision and the agency went too far 
with the revocation provision. With respect to comments that the 
revocation provision did not go far enough, many of the commenters 
stated that they did not see any reason why the old provision in Sec.  
13.28(a) should be replaced with a standard they viewed as less 
protective. These commenters also stated that the revocation provision 
should have mandatory language like the word ``shall'' to indicate that 
revocation is not discretionary. Many commenters questioned why the 
Service should have to step in at public expense to remedy jeopardy 
situations before a permit can be revoked. Some questioned what the 
standard ``in a timely fashion'' means. One commenter suggested that 
the revocation provision should also contain a reference to adverse 
modification of critical habitat, while another commenter recommended 
that the word ``jeopardy'' be used instead of ``appreciable reduction 
in the likelihood of survival and recovery'' because the commenter 
viewed ``jeopardy'' to be a higher standard.
    With respect to comments expressing concern that the Service has 
gone too far, a number of commenters stated that the revocation 
provision undermined the No Surprises Rule. These commenters strongly 
opposed any further expansion of the revocation provision and suggested 
further expansion would be contrary to congressional intent. A number 
of commenters requested that the Service reaffirm the principles of No 
Surprises and noted that revocation should be ``an action of last 
resort.'' Another commenter requested that we limit revocation to 
instances where the permittee is not in compliance with the permit or, 
at a minimum, add to the revocation provision a statement to indicate 
that the burden is on the agency to establish that the conditions for 
revocation exist.

Request for Public Comments

    This notice seeks public comment on our proposal to reestablish the 
Permit Revocation Rule as originally promulgated in June 1999. We 
specifically invite public comment on the following issues:
    1. The proposal to reestablish the Permit Revocation Rule. This 
rule would allow the Service to revoke an incidental take permit as a 
last resort in the unexpected and unlikely situation in which 
continuation of the permitted activities would likely jeopardize the 
continued existence of a species covered by the permit and the Service 
is not able to remedy the situation through other means in a timely 
    2. The interrelationship of the Permit Revocation Rule and the No 
Surprises Rule, including whether the revocation standard in the Permit 
Revocation Rule is appropriate in light of the regulatory assurances 
contained in the No Surprises Rule.
    3. Whether the revocation standard in 50 CFR 13.28(a)(5) or some 
other revocation standard would be more appropriate for incidental take 
permits with No Surprises assurances.

Required Determinations

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.,) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the rule?
    (6) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant proposed rule because it may raise novel legal or policy 
issues, and was reviewed by the Office of Management and Budget (OMB) 
in accordance with the four criteria discussed below.
    (a) This proposed rule will not have an annual economic effect of 
$100 million or more or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government.
    (b) This proposed rule is not expected to create inconsistencies 
with other agencies' actions. These regulations would amend potentially 
conflicting permitting regulations established for a voluntary program, 
Habitat Conservation Planning, for non-Federal property owners and 
would not create inconsistencies with the actions of non-Federal 
    (c) This regulation is not expected to significantly affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review. The 
proposed rule is a direct response to a previous legal challenge.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. The 
Regulatory Flexibility Act requires Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant

[[Page 29684]]

economic impact on a substantial number of small entities.
    Pursuant to the Regulatory Flexibility Act, we certified to the 
Small Business Administration that these regulations would not have a 
significant economic impact on a substantial number of small entities. 
The proposed changes clarify the circumstances under which an 
incidental take permit issued under the authority of section 
10(a)(1)(B) of the Endangered Species Act might be subject to 
revocation. As of February 29, 2004, the Service has issued 327 
incidental take permits, and none have required revocation. As 
identified in the preamble, the specific circumstances under which the 
proposed regulations would provide for revocation are expected to be 
extraordinarily rare.

Small Business Regulatory Enforcement Fairness Act

    This regulation will not be a major rule under 5 U.S.C. 801 et 
seq., the Small Business Regulatory Enforcement Fairness Act.
    (a) This regulation would not produce an annual economic effect of 
$100 million.
    (b) This regulation would not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions.
    (c) This regulation would not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant action under Executive Order 12866, 
it is not expected 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.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) The Service has determined and certifies pursuant to the 
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. No additional 
information will be required from a non-Federal entity solely as a 
result of the proposed rule. These regulations implement a voluntary 
program; no incremental costs are being imposed on non-Federal 
    (b) These regulations will not produce a Federal mandate of $100 
million or greater in any year; that is, this rule is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 


    In accordance with Executive Order 12630, these regulations do not 
have significant takings implications concerning taking of private 
property by the Federal Government. These regulations pertain to a 
voluntary program that does not require individuals to participate 
unless they volunteer to do so. Therefore, these regulations have no 
impact on personal property rights.


    These regulations will not have substantial direct effects on the 
States, in the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among 
various levels of government. Therefore, in accordance with Executive 
Order 13132, the Service has determined that this rule does not have 
sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this proposed rule does not unduly burden 
the judicial system and meets the applicable standards provided in 
sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This rule would not impose any new requirements for collection of 
information associated with incidental take permits other than those 
already approved for incidental take permits under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. We 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

    The Department of the Interior has determined that the issuance of 
the proposed rule is categorically excluded under the Department's NEPA 
procedures in 516 DM 2, Appendix 1.10.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); 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 understand that we 
must relate to recognized Federal Indian Tribes on a Government-to-
Government basis. However, these regulations pertain to voluntary 
agreements, Habitat Conservation Plans, in which Tribes and individuals 
are not required to participate unless they volunteer to do so. 
Therefore, these regulations may have effects on Tribal resources and 
Native American Tribes, but solely at their discretion, should those 
Tribes or individuals choose to participate in the voluntary program.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons set out in the preamble, we propose to 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.

    2. Amend Sec.  17.22 by adding a new paragraph (b)(8) to read as 

Sec.  17.22  Permits for scientific purposes, enhancement of 
propagation or survival, or for incidental taking.

* * * * *
    (b) * * *
    (8) Criteria for revocation. A permit issued under paragraph (b) of 
this section may not be revoked for any reason except those set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter or 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 

[[Page 29685]]

has not been remedied in a timely fashion.
* * * * *
    3. Amend Sec.  17.32 by adding a new paragraph (b)(8) to read as 

Sec.  17.32  Permits--general.

* * * * *
    (b) * * *
    (8) Criteria for revocation. A permit issued under paragraph (b) of 
this section may not be revoked for any reason except those set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter or 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.
* * * * *

    Dated: April 12, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-11741 Filed 5-24-04; 8:45 am]