[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Proposed Rules]
[Pages 53327-53334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22777]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH93


Revisions to the Regulations Applicable to Permits Issued Under 
the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to revise our 
regulations pertaining to permits issued under the Endangered Species 
Act. The proposed revisions will refine and clarify the application 
requirements and issuance criteria for such permits, particularly when 
used in connection with projects to improve habitat for listed species. 
The revisions will encourage and facilitate enhancement initiatives by 
landowners, natural resource agencies, and others.

DATES: Comments from all interested parties must be received by 
November 10, 2003.

ADDRESSES: Comments or materials concerning the proposed rule should be 
sent to Division of Conservation and Classification, U.S. Fish and 
Wildlife Service, Arlington Square Building, 4401 North Fairfax Drive, 
Suite 420, Arlington, Virginia 22203 (Telephone 703/358-2171, Facsimile 
703/358-1735). Comments and materials received on the proposed rule 
will be available for inspection, by appointment, during normal 
business hours, at the above address.

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, Fish and Wildlife Service (Telephone 
703/358-2171, Facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act (Act) was established to provide a means 
to conserve the ecosystems upon which endangered and threatened species 
depend, to provide a program for the conservation of these endangered 
and threatened species, and to take the appropriate steps that are 
necessary to bring any endangered or threatened species to the point 
where measures provided for under the Act are no longer necessary. 
Section 10(a)(1) of the Act authorizes the Service to issue permits 
allowing otherwise prohibited activities for certain actions that are 
consistent with the purposes of the Act. Section 10(a)(1)(A) authorizes 
such permits for scientific research or to enhance the propagation or 
survival of all listed species. Generic regulations for these permits 
are detailed at 50 CFR 17.22(a) and 17.32(a). Section 10(a)(1)(B) 
authorizes permits allowing the taking of listed species incidental to 
otherwise lawful activities (such as land development, timber harvest). 
Regulations for these permits are detailed at Sec. Sec.  17.22(b) and 
17.32(b).
    The Service issues section 10(a)(1)(A) permits for otherwise 
prohibited activities when the purpose of the permit is scientific or 
when there is a clear link between the proposed activity and the 
enhancement of propagation or survival of the affected species.

[[Page 53328]]

Scientific purposes include activities such as, but not limited to, 
presence/absence surveys, monitoring, and mark/recapture studies that 
involve Federally-listed species. Enhancement permits are issued for 
activities that directly aid in the recovery of endangered and 
threatened species. The current regulations at 50 CFR 17.22(a) and 
17.32(a) refer to some of the activities that can be permitted under 
section 10(a)(1)(A) of the Act. The principal purpose of this proposed 
rule is to more explicitly describe and accommodate the different types 
of enhancement activities can be permitted under section 10(a)(1)(A) of 
the Act.
    Permits to enhance the propagation or survival of listed species 
have most commonly been issued in connection with captive breeding 
efforts and research activities. The Service has recognized, however, 
that such permits can be used in other contexts as well. For example, 
in 1999, the Service revised its regulations to recognize two special 
categories of permits to enhance the survival of listed species. One 
category, called ``permits for the enhancement of survival through Safe 
Harbor Agreements,'' is detailed at Sec. Sec.  17.22(c) and 17.32(c). 
The other category, called ``permits for the enhancement of survival 
through Candidate Conservation Agreements with Assurances,'' is 
detailed at Sec. Sec.  17.22(d) and 17.32(d).
    Both of the special categories of enhancement of survival permits 
authorize take that is incidental to beneficial management activities. 
The Service could have authorized such take under section 10(a)(1)(B), 
which authorizes permits for take incidental to any otherwise lawful 
activity. However, we concluded that it was more appropriate to utilize 
the authority of section 10(a)(1)(A) for both Safe Harbor Agreements 
and Candidate Conservation Agreements with Assurances because the 
purpose of such agreements is to enhance the survival of listed 
species. In addition, some of the requirements applicable to Habitat 
Conservation Plans and associated permits under section 10(a)(1)(B), 
such as mitigation, are ill-suited to the context of activities carried 
out for the purpose of benefitting listed and unlisted species.
    As a result of the 1999 revisions, the regulations now recognize 
three types of enhancement of survival permits: (1) The generic 
category of enhancement of propagation or survival permits (Sec. Sec.  
17.22 and 17.32(a)), and the specific categories of permits connected 
with (2) Safe Harbor Agreements (Sec. Sec.  17.22 and 17.32(c)) and (3) 
Candidate Conservation Agreements with Assurances (Sec. Sec.  17.22 and 
17.32(d)). As discussed above, the generic category has historically 
been used principally to authorize otherwise prohibited activities in 
connection with captive breeding or similar activities. However, the 
Service recognizes that there are many other types of activities that 
can appropriately be authorized under the first category.
    An example of such activities would be habitat management 
activities not associated with mitigation, such as management of parks, 
reserves or other conservation areas for the benefit of listed species. 
For example, a state natural reserve may use prescribed burning on a 
regular basis to maintain the habitat of a listed species such as the 
Karner blue butterfly. Regular prescribed burning is a beneficial 
management practice necessary simply for the long-term well-being of 
this (and many other) species, yet burning has the potential to take at 
least some individuals of the species, particularly in the sedentary 
and relatively cryptic egg, larval, or pupal life stages. The purpose 
of the activity is the maintenance of the species' required habitat in 
order to enhance the survival of the Karner blue butterfly. To 
authorize such activities through a Habitat Conservation Plan permit 
under section 10(a)(1)(B) would be inappropriate to require mitigation 
for impacts due to habitat management activities that enhance the 
propagation or survival of listed species.
    It may also be inappropriate in some cases to authorize these 
activities under a Safe Harbor Agreement. This may be particularly true 
if the landowner does not wish to return the habitat to its baseline 
condition, which would mean that the requirement of the Safe Harbor 
policy to quantify baseline responsibilities would result in an 
unnecessary expense. For these reasons, it would be most efficient and 
appropriate to authorize the anticipated take, incidental or not, under 
the generic authority to issue permits to enhance the propagation or 
survival of a listed species.
    The generic authority to issue permits to enhance the propagation 
or survival of listed species can authorize take that is intentional 
(as is the case with respect to removing animals from the wild in order 
to start a captive breeding program) and incidental (as in the 
prescribed burning example above). For example, a conservation 
initiative to improve and expand habitat for a species at a site where 
it currently occurs in only small numbers in degraded habitat may 
unavoidably result in the incidental take of some individuals of the 
species. In addition, if the species (e.g., prairie dogs) has the 
potential to continue to expand into areas not intended for enhancement 
under the conservation initiative and detrimentally affect crops or 
livestock, the conservation initiative may include provisions to 
relocate or remove individuals that disperse from the habitat enhanced 
under the conservation initiative into nearby agricultural areas. 
Provided that the conservation initiative clearly meets the requirement 
that its overall impact would be to enhance the survival of the 
affected species, a permit under Section 10(a)(1)(A) could authorize 
both the incidental and intentional take described here. These permits 
could not be used to authorize past take even if conservation measures 
could be used to compensate for that impact to the species.
    There are a number of activities that can appropriately be 
authorized under the first category to encourage in-situ conservation 
of foreign-listed species. An example would be the import of the 
Morelet's crocodile (Crocodylus moreletii) skins from ranched 
populations in Mexico. As part of an overall conservation program for 
this species, Mexico allows a regulated removal of live specimens from 
the wild to establish parental stock for captive-breeding operations. A 
certain portion of the young produced are returned to the wild and the 
remainder are used to produce ranched skins that are traded 
internationally. This is part of a comprehensive conservation and 
management program for Morelet's crocodiles, which includes sustainable 
use of the species to encourage its conservation. As a result of this 
management program, Mexico has been able to register its captive-
breeding facilities with the Convention on International Trade in 
Endangered Species for international commercial trade. However, this 
international trade is still excluded from the United States because of 
the species' endangered status under the Act. Allowing the regulated 
import of such skins or products could further encourage Mexico to 
enhance its conservation efforts for this species in the wild.
    Federal agencies generally would continue to be able to obtain 
permits authorized through parts 17.22(a) and 17.32(a). Federal 
agencies may not obtain authorization for intentional take associated 
with a Safe Harbor Agreements and Candidate Conservation Agreements 
with Assurances because the Safe Harbor Agreements and Candidate 
Conservation Agreements with

[[Page 53329]]

Assurances policies expressly prohibit Federal agencies from obtaining 
assurances included with Safe Harbor Agreements and Candidate 
Conservation Agreements with Assurances.
    The Service recognizes that its existing regulations at Sec. Sec.  
17.22(a) and 17.32(a) do not clearly describe the full range of 
activities that enhance species survival. Although our current 
regulations authorize the permitting of take that results from any 
activity that meets the standard under section 10(a)(1)(A), enhancement 
of propagation or survival, we propose to revise Sec. Sec.  17.22(a) 
and 17.32(a) to clarify the range of actions that may be permitted. 
Furthermore, we propose to clarify that these permits may also be 
issued in conjunction with Candidate Conservation Agreements with 
Assurances and Safe Harbor Agreements that contemplate intentional 
take.

Revisions to the Regulations

    In 1999, the Service's Office of Management Authority, which is 
responsible for activities involving non-native listed species and the 
international movement of all listed species, became the Division of 
Management Authority. As such, Sec.  17.8(a)(2) needs to be revised to 
reflect this change.
    Regulations at Sec. Sec.  17.22(a) (for endangered species) and 
17.32(a) (for threatened species) describe application requirements and 
issuance criteria for permits for scientific purposes or to enhance the 
propagation or survival of listed species (Sec.  17.32(a) also covers 
the issuance of permits for other purposes that are allowable for 
threatened species). As currently written, those regulations prescribe 
the same application requirements and issuance criteria for all such 
permits, regardless of whether the purpose of the application is to 
conduct scientific research, import, export, conduct interstate 
commerce, implement captive breeding efforts, carry out habitat 
restoration activities to enhance the survival of species associated 
with that habitat, or carry out other activities designed to benefit 
the species' survival in the wild. Some of these provisions, 
particularly the application requirements, are important for only 
certain purposes, but not for all. We propose to revise these 
application requirements and issuance criteria to indicate clearly 
which apply to which of the different purposes for which permits are 
sought. Specific changes are described as follows.
    Both Sec. Sec.  17.22(a)(1)(i) and 17.32(a)(1)(i) require 
applications to specify the number, age, and sex of animals to be 
covered by the permit. This information may be of considerable 
importance if the purpose of the permit is to acquire particular 
individuals from the wild for captive breeding or scientific research. 
It is generally not important, or determinable, in other contexts, such 
as when the permit applicant seeks authority to take the species 
incidental to carrying out habitat improvement activities to enhance 
the survival of the species, as in the case of prescribed burning of 
Karner blue butterfly habitat. Accordingly, we propose to revise this 
provision to require such information only insofar as it is 
determinable at the time of the permit application.
    A resume of the applicant's attempts to obtain specimens of 
wildlife sought to be covered by the permit in a manner that would not 
cause its death or removal is required by Sec. Sec.  17.22(a)(1)(iii) 
and 17.32(a)(1)(iii). This requirement is appropriate in those 
situations in which the permit applicant seeks to collect or obtain 
wildlife. In situations where that is not the case, such as when the 
applicant must inadvertently take wildlife as part of a program to 
enhance the species survival through habitat creation or improvement, 
the requirement is unnecessary. Accordingly, we propose to clarify this 
provision by adding a prefatory clause explaining that it applies only 
when an applicant seeks to obtain specimens under the permit.
    The requirements, at Sec. Sec.  17.22(a)(1)(v) and 17.32(a)(1)(v), 
that an application must include a description of an institution or 
facility only has relevance where the applicant intends to use, 
display, or maintain the covered wildlife. In other situations, such as 
those involving habitat restoration to enhance the survival of a 
species, the applicant will not use, display, or maintain the species. 
Accordingly, we propose to clarify this provision by adding a prefatory 
clause explaining that it applies only when an applicant intends to 
use, display, or maintain wildlife covered by the permit.
    Both Sec. Sec.  17.22(a)(1)(vi) and 17.32(a)(1)(vi) require an 
applicant to describe the facilities where wildlife covered by the 
permit will be housed or cared for. This provision is relevant if the 
applicant intends to house or care for live wildlife, but not if the 
applicant intends only to enhance the survival of a species through 
habitat improvement. Accordingly, we propose to clarify this provision 
by specifying that it applies only when the applicant intends to house 
or care for live wildlife.
    At present, Sec. Sec.  17.22(a)(2)(i) and 17.32(a)(2)(i) require 
evaluation of whether the purpose for which the permit is required is 
adequate to justify removing from the wild the wildlife sought to be 
covered under the permit or otherwise changing its status. Yet not all 
scientific research or enhancement of propagation or survival permits 
will entail removing wildlife from the wild, or changing its status. 
Some enhancement or research activities may take wildlife by means of 
harassment (such as handling individuals through banding, or disturbing 
individuals through habitat restoration), but will not remove it from 
the wild. Accordingly, we propose to revise Sec. Sec.  17.22(a)(2)(i) 
and 17.32(a)(2)(i) to a more general statement requiring the Director 
to consider whether the purpose for which the permit is sought is 
adequate to justify the otherwise prohibited activity.
    Considering whether issuance of the permit would conflict with any 
program to enhance the survival probabilities of the population from 
which the wildlife is to be removed is required by Sec. Sec.  
17.22(a)(2)(iii) and 17.32(a)(2)(iii). Because not all permits issued 
under this authority entail removing wildlife from the wild, we propose 
to revise this provision to state more generally that the Director must 
consider whether issuance of the permit would conflict with any program 
to enhance the survival probability of the wildlife covered by the 
permit.
    Permits for the enhancement of survival through Safe Harbor 
Agreements authorized by Sec. Sec.  17.22(c) and 17.32(c) only 
authorize take that is incidental to some otherwise lawful activity. In 
some limited circumstances in which a Safe Harbor Agreement would 
enhance the survival of a listed species by various activities, such as 
those discussed above, it may be appropriate to permit limited 
intentional taking of that species. Therefore, we propose a provision 
whereby a permit authorizing such intentional take associated with a 
Safe Harbor Agreement can be issued under Sec. Sec.  17.22(a) or 
17.32(a), in addition to incidental take under Sec. Sec.  17.22(c) or 
17.32(c), but only if the Director determines that all requirements of 
the Safe Harbor policy are met, other than its limitation for only 
incidental take. Thus, Safe Harbor Agreement permits issued under 
Sec. Sec.  17.22(a) or 17.32(a) covering intentional take will be 
administered in accordance with the responsibilities and assurances 
stated in the Safe Harbor policy. This means that holders of these 
permits will have assurances that their conservation efforts will not 
incur future regulatory

[[Page 53330]]

obligations in excess of those to which they agreed. These assurances 
cannot be provided to Federal agencies.
    Similarly, permits for the enhancement of survival through 
Candidate Conservation Agreements with Assurances, authorized by 
Sec. Sec.  17.22(d) and 17.32(d), only authorize future take that is 
incidental to some otherwise lawful activity should the species named 
on the permit become listed as endangered or threatened. However, in 
some limited circumstances in which a Candidate Conservation Agreement 
with Assurances enhances the survival of an unlisted species by 
creating, restoring, or improving its habitat, reintroducing it, or 
other similar activities, it may be appropriate to permit limited 
intentional taking of that species to reduce damage to or destruction 
of agricultural crops, livestock, domestic animals, buildings or other 
infrastructure, or negative effects to human health or safety. 
Therefore, we propose a provision whereby a permit authorizing such 
intentional take associated with a Candidate Conservation Agreement 
with Assurances can be issued under Sec. Sec.  17.22(a) or 17.32(a), in 
addition to incidental take under Sec. Sec.  17.22(d) or 17.32(d), but 
only if the Director determines that all requirements of the Candidate 
Conservation Agreements with Assurances policy are met, other than its 
limitation for only incidental take. Thus, Candidate Conservation 
Agreements with Assurances permits issued under Sec. Sec.  17.22(a) or 
17.32(a) covering intentional take will be administered in accordance 
with the responsibilities and assurances stated in the Candidate 
Conservation Agreements with Assurances policy. This means that holders 
of these permits will have assurances that their conservation efforts 
will not incur future regulatory obligations in excess of those to 
which they agreed. As with Safe Harbor Agreements, these assurances 
cannot be provided to Federal agencies.
    A notice to the Director in the event of escape of wildlife from 
captivity is a permit condition required by Sec. Sec.  17.22(a)(3) and 
17.32(a)(3). We propose to clarify that such a condition is required 
only in permits that authorize the keeping of wildlife in captivity. In 
addition, we propose to add a provision under this paragraph applicable 
to permits to undertake habitat creation, restoration, or improvement, 
reintroduction of a species, or similar activities. The Director shall 
condition these permits as he or she deems appropriate to ensure that 
the net effect of those activities, together with any taking to be 
authorized by the requested permit, is reasonably expected to be 
beneficial to the conservation of such species.

Required Determinations

    We have evaluated the effects of the proposed regulation revisions 
described in this rule. We have concluded that the resulting economic 
benefits would be limited by the number of persons obtaining permits, 
and that the number of permits issued would be limited by our resources 
available to develop and process permit applications. This proposed 
rule clarifies the regulations pertaining to scientific purposes or 
enhancement of propagation or survival permits to encourage habitat 
enhancement activities. Although we anticipate issuing these types of 
permits, we do not anticipate that the level of participation in these 
permitting programs will significantly increase as a result of this 
rule because our resources available to process permit applications 
will not change as a result of this rule. Therefore, we conclude that 
this proposed rule will have little effect. Based on this finding, we 
have made the following determinations for this proposed rule.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant proposed rule 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. 
Since most of the proposed rule deals with clarification of current 
regulations, we do not anticipate this rule will cause any economic 
changes, either positive or negative. We have concluded that the 
portion of the proposed rule that deals with issuing permits for 
habitat improvement will have a beneficial economic effect, but that 
the effect would be small because of the small number of permits 
anticipated to be issued and the relatively small economic benefits 
that would accrue to permittees who take advantage of this provision.
    (b) This proposed rule is not expected to create inconsistencies 
with other agencies' actions.
    (c) This proposed rule 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.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    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). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our determination.
    We have examined this proposed rule's potential effects on small 
entities as required by the Regulatory Flexibility Act. The proposed 
rule does not establish any new implementation burdens. Submitting 
applications for permits under the Act is voluntary, and participation 
in activities that enhance the survival or propagation of species is 
also voluntary on the part of the applicant. We expect that any impacts 
of this rule would be beneficial by making it easier to understand the 
issuance requirements for permits under the Act and particularly for 
undertaking enhancement of survival or propagation activities that 
would be beneficial for habitat restoration and improvements. While the 
Service currently issues a large number of permits for activities such 
as research and captive breeding (currently over 1,200 permits issued, 
with 485 permits issued in 2001) and incidental take (currently over 
400 permits issued, with 141 of incidental take permits issued in 
2001), we only anticipate issuing a small number of permits that take 
advantage of this new habitat enhancement provision. We, therefore, do 
not expect these changes to affect a substantial number of small 
entities. We expect to issue approximately 10 additional of these 
habitat enhancement permits per year during the first several years of 
the program's operation. Therefore, given the low number of habitat 
enhancement permits expected to be issued and the

[[Page 53331]]

fact that the remaining portion of this proposed rule only clarifies 
current regulation, we certify that this rule will not have a 
significant economic impact on a substantial number of small entities.

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 proposed rule is a significant regulatory 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 (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. We expect that this proposed rule will not result in any 
significant additional expenditures by entities that develop 
Agreements.
    (b) This proposed rule will not produce a Federal mandate on State, 
local, or tribal governments or the private sector of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This proposed rule 
imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this proposed rule does 
not have significant takings implications. This proposed rule has no 
provision that would take private property rights. Participation in 
this permitting program is strictly voluntary.

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with appropriate resource agencies throughout the United States.

Civil Justice Reform

    In accordance with Executive Order 12988, this proposed rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order.

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 512 DM 2, this proposed 
rule does not directly affect Tribal resources. The effect of this 
proposed rule on Native American Tribes would be determined on a case-
by-case basis with individual evaluations of permit applications. Under 
Secretarial Order 3206, we will, at a minimum, share with the entity 
that developed the permit application any information provided by the 
Tribes, through the public comment period or formal submissions, and 
advocate the incorporation of conservation measures that will restore 
or enhance Tribal trust resources. After consultation with the Tribes 
and the entity that developed the permit application and after careful 
consideration of the Tribe's concerns, we must clearly state the 
rationale for the recommended final decision and explain how the 
decision relates to our trust responsibility. Accordingly:
    (a) We have not yet consulted with affected Tribes. This 
requirement will be addressed during individual evaluations of permit 
applications.
    (b) We have not yet treated Tribes on a government-to-government 
basis. This requirement will be addressed during individual evaluations 
of permit applications.
    (c) We will consider Tribal views in individual evaluations of 
permit applications.
    (d) We have not yet consulted with the appropriate bureaus and 
offices of the Department about the identified effects of this proposed 
rule on Tribes. This requirement will be addressed during individual 
evaluations of permit applications.

Paperwork Reduction Act

    This rule does not contain any new collections of information under 
permit application forms other than those already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned OMB 
clearance number 1018-0094. This rule clarifies the range of activities 
that may be permitted under 50 CFR 17.22(a) and 17.32(a). Our current 
application approval number 1018-0094, already accommodates this 
clarification and the changes proposed herein. Therefore, no change in 
the approved application forms is needed. 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 control number. This 
proposed rule is being submitted to OMB for review.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act (NEPA) and the Department of the 
Interior Manual (318 DM 2.2(g) and 6.3(D)). This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. The Fish and Wildlife Service has determined 
that this rule is categorically excluded under the Department of the 
Interior's NEPA procedures in 516 DM 2, Appendix 1 and 516 DM 6, 
Appendix 1.

Section 7 Consultation

    Though these revisions to the regulations will clarify the range of 
actions that may be permitted under enhancement of survival permits, it 
will not change the issuance standards for these enhancement of 
survival permits, or the manner in which the Service makes its issuance 
determinations. In addition, the Service will continue to consult on 
the issuance of each individual permit. During consultation, the 
potential risks to listed and proposed species and designated and 
proposed critical habitat areas will be evaluated. Therefore, at this 
time the Service has determined that the present action of revising 
these regulations for section 10(a)(1)(A) permits will not affect 
listed species or designated critical habitat.

Public Comments Solicited

    We request public comments on this proposed rule to revise the 
regulations applicable to permits for scientific purposes or 
enhancement of propagation or survival. We will take into consideration 
all comments and any additional information received by the close of 
comment period (listed above in DATES) in making a final determination 
on this proposal. Comments on the proposed rule and policy changes 
should go to the Division of Conservation and Classification (listed 
above in ADDRESSES). Comments on the required determinations should be 
submitted to the Office of Information and Regulatory Affairs, Office 
of Management and Budget via facsimile (202/395-6566), or e-mailed to

[[Page 53332]]

[email protected], and to the Fish and Wildlife Information 
Collection Officer, Room 222, 4401 N. Fairfax Drive, Arlington, VA 
22203.
    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? (A ``section'' appears in bold type 
and is preceded by the symbol ``Sec.  '' and a numbered heading; for 
example, Sec.  17.8 Permit applications and information collection 
requirements.) (5) Is the description of the rule in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? 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 the Executive Secretariate and 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street NW, Washington, DC 20240. You may also e-mail the comments to 
this address: [email protected].
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

List of Subjects in 50 CFR Part 17

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

    For the reasons set out in the preamble, the Service proposes to 
amend Title 50, Chapter I, subchapter B of the Code of Federal 
Regulations, as set forth below:

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 Sec.  17.8 by revising paragraph (a)(2) to read as 
follows:


Sec.  17.8  Permit applications and information collection 
requirements.

    (a) * * *
    (2) Submit permit applications for activities affecting native 
endangered and threatened species in international movement or 
commerce, and all activities affecting nonnative endangered and 
threatened species, to the U.S. Fish and Wildlife Service, Division of 
Management Authority, 4401 N. Fairfax Drive, Room 700, Arlington, VA 
22203.
* * * * *
    3. Amend Sec.  17.22 by revising paragraphs (a)(1), (a)(2), and 
(a)(3) to read as follows:


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

* * * * *
    (a)(1) Application requirements for permits for scientific purposes 
or for the enhancement of propagation or survival. A person wishing to 
get a permit for an activity prohibited by Sec.  17.21 submits an 
application for activities under this section. The Service provides 
Form 3-200 for the application to which all of the following must be 
attached:
    (i) The common and scientific names of the species to be covered by 
the permit, as well as the number, age, and sex of such species, and 
the activity to be authorized (such as take, export, or interstate 
commerce). If the purpose of the permit is for habitat restoration, in-
situ conservation for foreign listed species, or other such situations 
where this information is undeterminable, the number, age, and sex of 
the species may not be required;
    (ii) A statement as to whether, at the time of application, the 
wildlife to be covered by the permit
    (A) Is still in the wild,
    (B) Has already been removed from the wild,
    (C) Was born in captivity, or
    (D) Was artificially propagated;
    (iii) If the applicant seeks to obtain specimens of the wildlife to 
be covered by the permit, a resume of the applicant's attempts to 
obtain the wildlife in a manner that would not cause the death or 
removal from the wild of such wildlife. If the purpose of the permit is 
to promote in-situ conservation of foreign-listed species, such 
information may not be required;
    (iv) If the wildlife to be covered by the permit has already been 
removed from the wild, the country and place where such removal 
occurred; if the wildlife to be covered by the permit was born in 
captivity or artificially propagated, the country and place where such 
wildlife was born or artificially propagated, as well as the name and 
address of the breeder;
    (v) If the wildlife to be covered by the permit is to be used for 
scientific purposes, displayed for educational purposes, or maintained 
for any reason at an institution of other facility, a complete 
description and address of the institution or other facility;
    (vi) If the applicant intends to house and/or care for live 
wildlife covered by the permit, a complete description, including 
photographs or diagrams, of the facilities to house the wildlife and a 
resume of the experience of those persons who will be caring for the 
wildlife;
    (vii) A full statement of the reasons why the applicant is 
justified in obtaining a permit, including the details of the 
activities to be authorized by the permit; and
    (viii) If the application is for the purpose of enhancement of 
propagation, a statement of
    (A) The applicant's willingness to participate in a nationally or 
internationally recognized cooperative breeding program,
    (B) A description of how participation in such a breeding program 
will be carried out,
    (C) The applicant's willingness to maintain or contribute data to a 
studbook, and
    (D) A description of how the propagation of the species will 
benefit the species in the wild.
    (2) Issuance criteria.
    (i) Upon receiving an application completed in accordance with 
paragraph (a)(1) of this section, the Director will decide whether the 
Service should issue a permit. In making this decision, the Director 
will consider, in addition to the general criteria in Sec.  13.21(b) of 
this subchapter, the following factors:
    (A) Whether the applicant's intended purpose for which the permit 
is required justifies allowing the applicant to engage in an otherwise 
prohibited activity;

[[Page 53333]]

    (B) The probable direct and indirect effect that issuing the permit 
would have on the wild populations of the wildlife to be covered by the 
permit;
    (C) Whether the permit, if issued, would, in any way, directly or 
indirectly conflict with any known program intended to enhance the 
survival probabilities of any population of the wildlife to be covered 
by the permit;
    (D) Whether the purpose for which the permit is required would be 
likely to reduce the threat of extinction facing the species of 
wildlife to be covered by the permit;
    (E) The opinions or views of scientists or other persons or 
organizations having expertise concerning the wildlife or other mattes 
germane to the application; and
    (F) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to accomplish the objectives stated in 
the application;
    (ii) The Director may issue a permit for enhancement of survival of 
a species that allows the applicant to create, restore, or improve 
habitat, reintroduce the species, contribute to in-situ conservation of 
foreign-listed species, or conduct similar activities if the Director 
finds that the net effect of those activities, together with any 
incidental or other taking to be authorized by the permit, will likely 
be beneficial to the conservation of that species. In determining 
whether these actions are beneficial, the Director will consider 
factors including, but not limited to: whether the action is expected 
to increase the number of individuals or amount of suitable habitats, 
whether the potential benefits outweigh any negative effects associated 
with the action, whether the action eliminates or reduces threats to 
the species, and whether the duration of planned activities is 
sufficient to achieve the expected benefits. In the case of an 
application for a permit to allow intentional take of any species in 
association with a Safe Harbor Agreement, the Director must find that 
the activity will be in accordance with the terms of an associated Safe 
Harbor Agreement and will comply with all requirements of the Safe 
Harbor Agreements Policy, except for the limitation in that policy to 
incidental take. In the case of an application for a permit to allow 
intentional take of any species not yet listed at the time of the 
permit application, the Director must find that the activity will be in 
accordance with the terms of an associated Candidate Conservation 
Agreement with Assurances and will comply with all requirements of the 
Candidate Conservation Agreements with Assurance Policy, except for the 
limitation in that policy to incidental take;
    (3) Permit conditions. (i) In addition to the general conditions 
set forth in part 13 of this subchapter, every permit issued under this 
section that authorizes the keeping living wildlife in captivity will 
be subject to the condition that the escape of wildlife covered by the 
permit will be immediately reported to the Service office designated in 
the permit;
    (ii) Permits issued under this section for enhancement of survival 
to undertake habitat creation, restoration, or improvement, or 
reintroduction of a species, or similar activities will be subject to 
such conditions as the Director deems appropriate to ensure that the 
net effect of those activities, together with any incidental or 
intentional take to be authorized by the requested permit, will be 
beneficial to the conservation of such species.
* * * * *
    4. Amend Sec.  17.32 by revising paragraphs (a)(1)(i)-(viii), 
(a)(2), and (a)(3) to read as follows:


Sec.  17.32  Permits--general.

    (a)(1) * * *
    (i) The common and scientific names of the species to be covered by 
the permit, as well as the number, age, and sex of such species, and 
the activity to be authorized (such as take, export, or interstate 
commerce). If the purposes of the permit is for habitat restoration, 
in-situ conservation of foreign listed species, or other such 
situations where this information is undeterminable, the number, age, 
and sex of the species may not be required;
    (ii) A statement as to whether, at the time of application, the 
wildlife to be covered by the permit
    (A) Is still in the wild,
    (B) Has already been removed from the wild,
    (C) Was born in captivity, or
    (D) Was artificially propagated;
    (iii) If the applicant seeks to obtain specimens of the wildlife to 
be covered by the permit, a resume of the applicant's attempt to obtain 
the wildlife in a manner that would not cause the death or removal from 
the wild of such wildlife. If the purpose of the permit is to promote 
in-situ conservation of foreign-listed species such information may not 
be required.
    (iv) If the wildlife to be covered by the permit has already been 
removed from the wild, the country and place where such removal 
occurred; if the wildlife to be covered by the permit was born in 
captivity or artificially propagated, the country and place where such 
wildlife was born or artificially propagated, as well as the name and 
address of the breeder;
    (v) If the wildlife to be covered by the permit is to be used for 
scientific purposes, displayed for educational purposes, or maintained 
for any reason at an institution or other facility, a complete 
description and address of the institution or other facility;
    (vi) If the applicant intends to house and/or care for live 
wildlife covered by the permit, a complete description, including 
photographs or diagrams, of the facilities to house the wildlife and a 
resume of the experience of those persons who will be caring for the 
wildlife;
    (vii) A full statement of the reasons why the applicant is 
justified in obtaining a permit, including the details of the 
activities to be authorized by the permit; and
    (viii) If the application is for the purpose of enhancement of 
propagation, a statement of
    (A) The applicant's willingness to participate in a nationally or 
internationally recognized cooperative breeding program,
    (B) A description of how participation in such a breeding program 
will be carried out,
    (C) The applicant's willingness to maintain or contribute data to a 
studbook, and
    (D) A description of how the propagation of the species will 
benefit the species in the wild.
    (2) Issuance criteria. (i) Upon receiving an application completed 
in accordance with paragraph (a)(1) of this section, the Director will 
decide whether the Service should issue a permit. In making this 
decision, the Director will consider, in addition to the general 
criteria in Sec.  13.21(b) of this subchapter, the following factors:
    (A) Whether the applicant's intended purpose for which the permit 
is required justifies allowing the applicant to engage in an otherwise 
prohibited activity;
    (B) The probable direct and indirect effect that issuing the permit 
would have on the wild populations of the wildlife to be covered by the 
permit;
    (C) Whether the permit, if issued, would, in any way, directly or 
indirectly conflict with any known program intended to enhance the 
survival probabilities of any population of the wildlife to be covered 
by the permit;
    (D) Whether the purpose for which the permit is required would be 
likely to reduce the threat of extinction facing the species of 
wildlife to be covered by the permit;

[[Page 53334]]

    (E) The opinions or views of scientists or other persons or 
organizations having expertise concerning the wildlife or other matters 
germane to the application; and
    (F) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to accomplish the objectives stated in 
the application.
    (ii) The Director may issue a permit for enhancement of survival of 
a species that allows the applicant to create, restore, or improve 
habitat, reintroduce the species, contribute to in-situ conservation of 
foreign-listed species, or conduct similar activities if the Director 
finds that the net effect of those activities, together with any 
incidental or other taking to be authorized by the permit, will likely 
be beneficial to the conservation of that species. In determining 
whether these actions are beneficial, the Director will consider 
factors including, but not limited to: whether the action is expected 
to increase the number of individuals or amount of suitable habitats, 
whether the potential benefits outweigh any negative effects associated 
with the action, whether the action eliminates or reduces threats to 
the species, and whether the duration of planned activities is 
sufficient to achieve the expected benefits. In the case of an 
application for a permit to allow intentional take of any species in 
association with a Safe Harbor Agreement, the Director must find that 
the activity will be in accordance with the terms of an associated Safe 
Harbor Agreement and will comply with all requirements of the Safe 
Harbor Agreements Policy, except for the limitation in that policy to 
incidental take. In the case of an application for a permit to allow 
intentional take of any species not yet listed at the time of the 
permit application, the Director must find that the activity will be in 
accordance with the terms of an associated Candidate Conservation 
Agreement with Assurances and will comply with all requirements of the 
Candidate Conservation Agreements with Assurances Policy, except for 
the limitation in that policy to incidental take.
    (3) Permit conditions. (i) In addition to the general conditions 
set forth in part 13 of this subchapter, every permit issued under this 
section that authorizes the keeping of living wildlife in captivity 
will be subject to the condition that the escape of wildlife covered by 
the permit will be immediately reported to the Service office 
designated in the permit.
    (ii) Permits issued under this section for enhancement of survival 
to undertake habitat creation, restoration, or improvement, or 
reintroduction of a species, or similar activities will be subject to 
such conditions as the Director deems appropriate to ensure that the 
net effect of those activities, together with any incidental or 
intentional take to be authorized by the requested permit, will be 
beneficial to the conservation of such species.
* * * * *

    Dated: May 3, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-22777 Filed 9-9-03; 8:45 am]
BILLING CODE 4310-55-P