Federal Register, Volume 88 Issue 119 (Thursday, June 22, 2023)

[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Proposed Rules]
[Pages 40742-40753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13055]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2023-0018; FF09E41000 201 FXES111609C0000]
RIN 1018-BF88

Endangered and Threatened Wildlife and Plants; Regulations
Pertaining to Endangered and Threatened Wildlife and Plants

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise our regulations concerning protections of endangered species and
threatened species under the Endangered Species Act (Act). We are
proposing to reinstate the general application of the ``blanket rule''
option for protecting newly listed threatened species pursuant to
section 4(d) of the Act, with the continued option to promulgate
species-specific rules. We are also proposing to extend to federally
recognized Tribes the exceptions to prohibitions for threatened species
that the regulations currently provide to the employees or agents of
the Service and other Federal and State agencies to aid, salvage, or
dispose of threatened species. We are also proposing minor changes to
clarify or correct the existing regulations for endangered and
threatened species; these proposed minor changes would not alter the
substance or scope of the regulations. We also request comments on an
additional provision under consideration, but not currently proposed,
that would extend to federally recognized Tribes the exceptions to
prohibitions for threatened species that the regulations currently
provide to employees or agents of the Service, the National Marine
Fisheries Service, and State agencies for take associated with
conservation-related activities.

DATES: We will accept comments received or postmarked on or before
August 21, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2023-0018,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2023-0018, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Availability of supporting materials: Supporting materials are
available at https://www.regulations.gov at Docket No. FWS-HQ-ES-2023-
0018.

FOR FURTHER INFORMATION CONTACT: Carey Galst, Branch of Listing and
Policy Support, U.S. Fish and Wildlife Service, 5275 Leesburg Pike,
Falls Church, VA 22041-3803, telephone 703/358-1954. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make

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international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

The purposes of the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq. (the Act)), are to provide a means to conserve the
ecosystems upon which listed species depend, develop a program for the
conservation of listed species, and achieve the purposes of certain
treaties and conventions. Moreover, it is the policy of Congress that
the Federal Government will seek to conserve threatened and endangered
species and use its authorities to further the purposes of the Act (16
U.S.C. 1531(c)(1)). This proposed rulemaking action pertains primarily
to sections 4 and 9 of the Act.
Section 9 of the Act provides a specific list of prohibitions for
endangered species but does not provide these same prohibitions to
threatened species. Instead, section 4(d) of the Act requires that the
Secretary issue regulations necessary and advisable to provide for the
conservation of threatened species; these are referred to as ``4(d)
rules.'' Congress delegated the authority to the Secretary to determine
what protections would meet this standard for a given species. Early in
the administration of the Act, the Service promulgated ``blanket
rules,'' two sets of protective regulations that generally applied to
threatened species of wildlife and plants, at 50 CFR 17.31 and 17.71,
respectively. These regulations extended the majority of the
protections (all of the prohibitions that apply to endangered species
under section 9 and additional exceptions to the prohibitions) (e.g.,
50 CFR 17.31(a) and 17.71(a) (2018)) to threatened species, unless we
issued an alternative rule under section 4(d) of the Act for a
particular species (i.e., a species-specific rule). For species with a
species-specific rule, that rule contained all of the protective
regulations for that species.
On August 27, 2019, we issued a final rule that revised 50 CFR
17.31 and 17.71 (84 FR 44753; hereinafter, ``the 2019 4(d) rule'') and
ended the blanket rule option for application of section 9 prohibitions
to species newly listed as threatened after the effective date of those
regulatory revisions (September 26, 2019). The blanket rule protections
continued to apply to threatened species that were listed prior to
September 26, 2019, without an associated species-specific rule. Under
the 2019 4(d) rule, the only way to apply protections to a species
newly listed as threatened is for us to issue a species-specific rule
setting out the protective regulations that are appropriate for that
species.
On January 20, 2021, the President issued Executive Order 13990 (86
FR 7037, January 25, 2021; hereinafter referred to as ``the E.O.''),
which required all agencies to review agency actions issued between
January 20, 2017, and January 20, 2021, to determine consistency with
the purposes articulated in section 1 of the E.O. Pursuant to the
direction in the E.O., we reviewed our 2019 4(d) rule to assess whether
to keep it in place or to revise any aspects. Our review included
evaluating the benefits or drawbacks of the regulations, the necessity
of the regulations, their consistency with applicable case law, and
other factors. Based on our evaluation, and for reasons discussed in
more detail below, we propose to revise our regulations at 50 CFR 17.31
and 17.71 to reinstate the ``blanket rules'' that apply many of the
section 9 protections to newly listed threatened species and update
other provisions. This proposed revision would not require any
previously finalized species-specific rules issued since September 2019
to be reevaluated on the basis of the final decision. However, under
this proposal any wildlife or plant species that the Service listed as
threatened prior to September 26, 2019, and protected with the previous
``blanket rules,'' would have the revised prohibitions and exceptions
outlined under 50 CFR 17.31(a) or 17.71(a), respectively, for any
future actions after the finalization of this rule. Applying the
revised prohibitions and exceptions would make only two changes to the
protections for those previously listed threatened species. First, it
would add federally recognized Tribes to the entities authorized to
aid, salvage, or dispose of threatened species. Second, it would update
our endangered plant regulations at 50 CFR 17.61(c)(1) to match
amendments to the Act that Congress enacted in 1988. These updates
would also apply to threatened plants protected under the ``blanket
rule.'' The Secretaries of the Interior and Commerce share
responsibilities for implementing most of the provisions of the Act.
Generally, marine species and some anadromous (sea-run) species are
under the jurisdiction of the Secretary of Commerce, and all other
species are under the jurisdiction of the Secretary of the Interior.
Authority to administer the Act has been delegated by the Secretary of
the Interior to the Director of the U.S. Fish and Wildlife Service
(``the Service'') and by the Secretary of Commerce to the Assistant
Administrator for the National Marine Fisheries Service (NMFS). The
Service and NMFS (jointly ``the Services'') each have separate
regulations for implementation of section 4(d) protective regulations
for species within their respective jurisdictions. When we amended our
section 4(d) regulations in 2019, those amendments affected only
species under Service jurisdiction. This proposal, if finalized, would
have the same result.
The 2019 4(d) rule, along with other revisions to the Act's
regulations finalized in 2019 (revisions to 50 CFR parts 402 and 424),
were subject to litigation in the United States District Court for the
Northern District of California. On July 5, 2022, the court issued a
decision vacating the 2019 4(d) rule without reaching the merits of the
case. On September 21, 2022, the United States Court of Appeals for the
Ninth Circuit temporarily stayed the effect of the July 5th decision
pending the District Court's resolution of motions seeking to alter or
amend that decision. On October 14, 2022, the Services notified the
District Court that we anticipated proceeding with a rulemaking process
to revise the 2019 4(d) rule. Subsequently, on November 14 and 16,
2022, the District Court issued orders remanding the 2019 4(d) rule to
the Services without vacating it, as the Services had asked the Court
to do. Accordingly, the Service has developed this proposal to amend
our regulations at 50 CFR part 17.
This proposed rule is one of three proposed rules publishing in
today's Federal Register that propose changes to the regulations that
implement the Act. Two of these proposed rules are joint between the
Services, and this document is specific to the Service.

Proposed Regulatory Revisions

We propose revisions to the regulations in 50 CFR part 17, subparts
C, D, F, and G, with minor administrative revisions to subpart A. Our
proposal would reinstate the general application of the ``blanket
rule'' option for protecting newly listed threatened species pursuant
to section 4(d) of the Act, with the continued option to craft species-
specific rules. Reinstating the ``blanket rule'' option and other
proposed regulation revisions would only result in minor changes to
protections for currently listed threatened species, whether those
species received 4(d) protections from the prior versions of the
``blanket rules'' or from a species-specific rule. Species that were
protected under prior versions of the ``blanket rules'' or under
species-

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specific rules that refer to any of the sections we propose revising
would receive the updated protections for any actions occurring after
finalization of this proposed rule. As stated above, applying the
revised prohibitions and exceptions would make only two changes to the
protections for those previously listed threatened species. First, it
would add federally recognized Tribes to the entities authorized to
aid, salvage, or dispose of threatened species. Second, it would update
our endangered plant regulations at 50 CFR 17.61(c)(1) to match
amendments to the Act that Congress enacted in 1988. These updates
would also apply to threatened plants protected under a ``blanket
rule.'' Finally, we propose minor changes to clarify, without changing
the scope or intent of, the existing regulations at 50 CFR 17.21 and
17.61 for endangered species, as well as technical corrections such as
revising the use of the phrase ``special rule'' to ``species-specific
rule'' in several locations (e.g., 50 CFR 17.8, 17.40).

Reinstatement of Blanket Rules

The primary proposed revisions are to 50 CFR 17.31 and 17.71; the
proposed revisions would reinstate the general application of the
``blanket rule'' options for protecting newly listed threatened
wildlife and plant species, respectively, pursuant to section 4(d) of
the Act. As mentioned above, the Service had ``blanket rules'' for
wildlife and plants between the 1970s and September 2019, at which time
we revised the pertinent regulations to no longer apply to newly listed
threatened species. For those species listed prior to September 26,
2019, we also had the option to issue species-specific rules, which we
did approximately 25 percent of the time. This proposal would retain
the continued option to promulgate species-specific rules. Also as
stated above, applying the revised prohibitions and exceptions would
make only two changes to the protections for those previously listed
threatened species. First, it would add federally recognized Tribes to
the entities authorized to aid, salvage, or dispose of threatened
species. Second, it would update our endangered plant regulations at 50
CFR 17.61(c)(1) to match amendments to the Act that Congress enacted in
1988. These updates would also apply to threatened plants protected
under a ``blanket rule.'' On August 27, 2019, we issued a rule to
revise 50 CFR 17.31 and 17.71 such that species listed or reclassified
as threatened species after the effective date of those revisions would
no longer be afforded protective regulations unless we promulgated a
species-specific rule (84 FR 44753). Between that rule's effective date
in September 2019 and early May 2023, we listed or reclassified 35
threatened species (27 wildlife and 8 plant species) and finalized
associated species-specific rules for each of those species. During
that time, there were no newly listed threatened species for which time
elapsed between listing and putting in place protective regulations
because we finalized species-specific rules concurrently with each
final classification action. The vast majority of species-specific
rules included the prohibitions afforded to endangered species along
with commonly provided exceptions to those prohibitions (e.g.,
exceptions for activities pertaining to defense of life; salvage and
recovery actions by employees of the Service, NMFS, and State natural
resource agencies; law enforcement possession). All rules for wildlife
species also included tailored exceptions to take prohibitions that
allow for take (1) with minimal anticipated negative effects to the
species or (2) that was unavoidable and associated with activities that
would result in overall beneficial effects to the species. Five rules
for plant species included similar regulatory language as language
included in prior blanket rules. Three other rules for plant species
included additional exceptions.
For every newly listed threatened species, we will determine what
section 4(d) protections are appropriate. We anticipate that for some
species we will determine that a species-specific rule would be
appropriate while for other species we will determine that ``blanket
rule'' protections are appropriate. In the latter instances, we
conclude for two primary reasons that it would be preferable to apply
section 9 prohibitions similar to our longstanding ``blanket rules''
that were available prior to the 2019 4(d) rule.
The first reason is biological: We want to prevent declines in the
species' status, and section 4(d) provides that the Secretary shall
promulgate regulations that are necessary and advisable to provide for
the conservation of the species. Although threatened species are not
currently in danger of extinction like endangered species, we have
determined those species are likely to become in danger of extinction
in the foreseeable future and we have an opportunity to try to prevent
that from happening. In furtherance of the conservation purposes of the
Act identified in section 2(b), Congress put in place the section 9
prohibitions as an immediate way after listing endangered species to
help prevent further declines in the species' status. The plain
language of section 4(d) indicates that the Secretary may by regulation
prohibit acts under section 9, and we have concluded that applying
those prohibitions in the ``blanket rules'' upon the listing of
threatened species will similarly help prevent further declines of the
species and further the conservation purposes of the Act.
The section 9 prohibitions make it illegal for any person subject
to the jurisdiction of the United States to engage in the following
actions:
With respect to endangered wildlife--take such a species
within the United States or on the high seas; or possess, sell,
deliver, carry, transport, or ship any such species that has been taken
illegally;
With respect to endangered plants--remove and reduce to
possession, or maliciously damage or destroy, any such plants from
areas under Federal jurisdiction; or remove, cut, dig up, or damage or
destroy such plants on any other area in knowing violation of any State
law or regulation in the course of violating any State criminal
trespass law; or
With respect to endangered fish or wildlife or plants--
import or export any such species; deliver, receive, carry, transport,
or ship any such species in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any such species (sections 9(a)(1) and 9(a)(2) of
the Act; 50 CFR 17.21 and 17.61).
Another aspect of our biological reason to apply section 9
prohibitions similar to our longstanding ``blanket rules'' is that, for
newly listed species, we often lack a complete understanding of the
causes of a species' decline, and taking a precautionary approach to
applying protections would proactively address potentially unknown
threats. In addition, the initial listing of a species may bring new
attention to the species, and that attention may increase the risk of
collection or sale. Therefore, we determined that this approach of
applying section 9 prohibitions to threatened species under the
``blanket rules'' assists our goal of putting in place protections that
will both prevent the species from becoming endangered and promote the
recovery of species. As we learn more about a given species and the
reasons for its decline over time, we have the option to establish or
revise species-specific rules accordingly.
The second reason for applying the section 9 prohibitions for
endangered species to threatened species under a ``blanket rule'' is a
practical reason. For purposes of implementation and enforcement, it is
easier to explain and

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comprehend threatened species protections if they are modeled after the
section 9 prohibitions--with which agency staff and the public are
widely familiar. Therefore, rather than craft similar, but slightly
different prohibitions for threatened species, we refer directly to
endangered species regulations at 50 CFR 17.21 and 17.61, where
appropriate, in our ``blanket rules'' as well as most species-specific
rules.
While we propose to include the statutory section 9 prohibitions
for threatened species in the ``blanket rules,'' we also propose to
include certain specific exceptions to those prohibitions. These
specific exceptions were available in ``blanket rules'' prior to the
2019 4(d) rule, and we have no reason not to reinstate them. These
include existing exceptions for endangered species (e.g., any person
may take endangered wildlife in defense of their own life or the lives
of others; Federal and State law enforcement officers may possess,
deliver, carry, transport, or ship any endangered wildlife taken in
violation of the Act as necessary in performing their official duties;
certain individuals can take wildlife to aid, salvage, or dispose of
threatened species). We also propose to reinstate the exceptions for
employees or agents of the Service, NMFS, or a State conservation
agency operating a conservation program in accordance with section 6(c)
of the Act to take threatened species. We also recognize that we need
to maintain our ability to tailor take prohibitions or other
protections to what is necessary and advisable for a given species. As
stated in our 2019 4(d) rule, we have found significant conservation
benefits from developing and implementing species-specific rules, such
as (1) facilitating implementation of beneficial conservation actions
and (2) reducing or otherwise tailoring permitting requirements for
prohibited actions (e.g., take) under circumstances that are considered
inconsequential to the conservation of the species, which can also make
better use of our limited personnel and fiscal resources and reduce
regulatory burden. In some cases, we anticipate that we will continue
to propose and finalize species-specific rules. However, in other
situations, we may find that the suite of protections and exceptions
outlined in this proposed rule for threatened species is appropriate.
Given this desire to maintain flexibility to do what is best to
conserve threatened species, our current preferred approach is to again
make the ``blanket rule'' option available to apply to newly listed
threatened species unless we develop and publish species-specific
rules.
The proposed revisions to 50 CFR 17.31(a) and 17.71(a) in the rule
portion of this document include all protections and exceptions for
threatened wildlife and plant species and an explanation that these
provisions apply unless we develop a species-specific rule for that
species. When we find that the suite of protections and exceptions at
proposed Sec. Sec. 17.31(a) or 17.71(a) is appropriate for a given
species, we would state so in the preamble of the proposed and final
rule listing a species as threatened, and we would not develop any
additional regulatory text that would appear as a species-specific rule
(e.g., at 50 CFR 17.40 through 17.48). This approach would result in
less confusion, less duplication of regulatory text in the Code of
Federal Regulations, a lower risk of error in transposing regulatory
text, and reduced administrative costs associated with developing and
publishing a rule in the Federal Register and Code of Federal
Regulations.
The statute does not require us to make a finding that our decision
to apply, or not to apply, specific section 9 prohibitions to a
threatened species is necessary and advisable to provide for the
conservation of the species (In re: Polar Bear Endangered Species Act
Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C.
2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt,
1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 687
(1995)). Nevertheless, to be as transparent as possible, we explain
below why applying our regulatory text at proposed Sec. Sec. 17.31(a)
and 17.71(a) is, as a whole, necessary and advisable to provide for the
conservation of threatened species unless a species-specific rule is
developed (see the section below titled Necessary and Advisable
Determination). Similarly, in circumstances in which we develop a
species-specific rule, we will explain why the species-specific rule,
as a whole, satisfies the requirement in section 4(d) of the Act to
issue regulations deemed necessary and advisable to provide for the
conservation of that species. Further, when we develop species-specific
rules, the explanation must stand on its own based on the information
that we have on that particular species and our understanding of its
threats; therefore, for newly listed threatened species, we will not
compare or contrast the protections at Sec. Sec. 17.31(a) or 17.71(a)
with any of the individual proposed species-specific protective
regulations. If this proposal is finalized, the final regulations will
not require the reevaluation of any prior species-specific rules or
prior use of Sec. Sec. 17.31(a) or 17.71(a) for species without
species-specific rules. All of the proposed relevant regulatory
changes, if finalized, would apply to future actions that may impact
threatened species.

Differences With NMFS

In our August 27, 2019, final rule revising the ``blanket rules''
(84 FR 44753), we explained that going forward we would promulgate
species-specific rules for particular species, which is the process
NMFS uses. As discussed above, we have reconsidered that approach
during our review of our 2019 4(d) rule in accordance with E.O. 13990.
We now find our prior approach of having the option of the ``blanket
rule'' is preferable. We recognize that after reinstatement of the
general application of the ``blanket rule'' option with the continued
option to craft species-specific rules, our approach to implementing
section 4(d) of the Act will again differ from NMFS' approach. However,
many efficiencies can be gained through invoking the ``blanket rules''
as opposed to promulgating species-specific rules in all instances, and
this is particularly important based upon the sheer number of species
we have listed as threatened species as compared to NMFS. Given that
our agencies applied these different approaches for over 40 years, and
we do not have any evidence to suggest there was confusion resulting
from this difference, we do not find a risk of increased confusion of
reverting to these differing approaches.
In addition, having an approach that differs from NMFS' approach
does not mean that either one is unreasonable. Each agency makes policy
choices that best further the purposes of the Act for the species
within its jurisdiction. As we have stated before (i.e., 87 FR 43433,
July 21, 2022), in some situations it may make sense for the Service
and NMFS to apply their own regulations for implementing the Act. We
conclude that this is one of those situations.

New Exceptions for Tribes

We propose revisions to 50 CFR 17.31 and 17.71 to extend to
federally recognized Tribes the ability currently afforded to the
Service and other Federal and State agencies to aid, salvage, or
dispose of threatened species. The longstanding policy of the
Department of the Interior (DOI) has been to carry out responsibilities
under the Act and other statutes in harmony with the Federal trust
responsibility to Tribes and to strive to ensure that

[[Page 40746]]

Indian Tribes do not bear a disproportionate burden for the
conservation of listed species (DOI S.O. 3206 1997). Because of the
unique government-to-government relationship between Indian Tribes and
the United States, DOI prioritizes effective working relationships and
mutual partnerships to promote the conservation of sensitive species
(including candidates, species proposed for listing, and listed
species) and the health of ecosystems upon which they depend. The
proposed changes to the threatened species protective regulations are a
recognition that Tribes are governmental sovereigns with inherent
powers to make and enforce laws, administer justice, and manage and
control their natural resources. Further, S.O. 3206 envisioned that,
when the Service exercises regulatory authority for threatened species
under section 4(d) of the Act, we would strive to avoid or minimize
effects on Tribal management or economic development, or the exercise
of reserved Indian fishing, hunting, gathering, or other rights, to the
maximum extent allowed by law.
In addition to the DOI-specific guidance on coordination with the
Tribes, a number of recent memoranda and Executive orders describe the
commitment of the U.S. Government to strengthening the relationship
between the Federal Government and Tribal Nations and to advance equity
for Indigenous people, including Native Americans, Alaska Natives,
Native Hawaiians, and Indigenous peoples of the U.S. Territories. These
include the Memorandum on Tribal Consultation and Strengthening Nation-
to-Nation Relationships (86 FR 7491, Jan. 29, 2021); Executive Order
13985: Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (86 FR 7009, Jan. 25, 2021); Executive
Order 14031: Advancing Equity, Justice, and Opportunity for Asian
Americans, Native Hawaiians, and Pacific Islanders (86 FR 29675, June
3, 2021); and Memorandum on Indigenous Traditional Ecological Knowledge
and Federal Decision Making (Nov. 15, 2021). The commitments described
in these recent Executive orders and memoranda include ensuring that
Federal agencies conduct regular, meaningful, and robust consultation
with Tribal officials in the development of Federal research, policies,
and decisions, especially decisions that may affect Tribal Nations and
the people they represent. Specifically, the November 15, 2021,
memorandum on Indigenous knowledge states that Tribes and Indigenous
peoples have unique knowledge and information that should be recognized
in the Federal decision-making process. The proposed revisions to the
threatened species regulations recognize the merit of allowing any
employee or agent of a federally recognized Tribe, who is designated by
the Tribe for such purpose, to be able to aid injured or diseased
wildlife or plants or dispose of dead individuals without permits. We
consider the failure to extend this exception to federally recognized
Tribes in the past to be an error of omission rather than commission
and that, consistent with various Executive orders, Secretary's orders,
and memoranda, we are now proposing to extend this exception to Tribes
in recognition of their authority and expertise in managing natural
resources on Tribal lands.

Corrections and Clarifications

In addition to the proposed revisions above, we are also proposing
revisions in 50 CFR 17.21, 17.31, 17.61, and 17.71. These proposed
changes are intended to improve readability, increase consistency among
sections, provide alignment with the Act, and correct other
inaccuracies.
We propose updating our endangered plant regulations at 50 CFR
17.61(c)(1) to match amendments to the Act that Congress enacted in
1988 (16 U.S.C. 1538(a)(2)(B); Act section 9(a)(2)(B), Pub. L. 100-478
(Oct. 7, 1988)). The House Report at the time concluded that the
amendments were necessary because, without them, ``anyone [could] pick,
dig up, cut or destroy an endangered plant with impunity'' unless it
was committed on an area under Federal jurisdiction and removed from
that area (H. Rept. No. 100-467 (Dec. 7, 1987)). To ensure that the
regulations conform to the statutory language regarding prohibitions
for endangered plants, we are proposing to add a provision that also
makes it unlawful to: (a) ``maliciously damage or destroy'' an
endangered plant species on an area under Federal jurisdiction; or (b)
``remove, cut, dig up, or damage or destroy'' an endangered plant
species on any area that is not under Federal jurisdiction in knowing
violation of a State law or regulation or in the course of violating a
State criminal trespass law.
We also propose language at Sec. Sec. 17.31(c) and 17.71(c) to
make it clear that the provisions that allow the Service to issue
permits for certain activities that are otherwise prohibited
(Sec. Sec. 17.32 and 17.72), as well as the provisions that provide
exceptions for certain individuals to aid, salvage, or dispose of
threatened species and to take threatened species in the course of
carrying out conservation programs for listed species (Sec. Sec.
17.31(b) and 17.71(b)), always apply to threatened species, unless
specifically prohibited in a species-specific rule. We have always
intended for these provisions to apply to threatened species as
appropriate and did not intend to require every species-specific rule
to spell out these provisions. We anticipate these provisions would
generally be similar or identical for most species, so applying these
provisions unless a species-specific rule provides otherwise would
likely avoid substantial duplication.
We also propose modifications to these sections to state clearly
that the species-specific rule will include all applicable prohibitions
and ``any additional'' exceptions to highlight that these exceptions
always apply unless otherwise specified. We propose similar revisions
at Sec. 17.72 to clearly state that the permitting provisions for
threatened plant species apply unless expressly prohibited in a
species-specific rule. This provision was already clear at Sec. 17.32
for threatened species of wildlife; therefore, this proposed change
would align our approach for plants with the provision for wildlife.
We also propose minor edits (e.g., to correct errors in citations
and addresses) in 50 CFR 17.21, 17.31, 17.61, and 17.71. For example,
we propose to update prohibitions and exceptions regarding take of
federally listed migratory birds to align the 50 CFR part 17
regulations with changes previously made at 50 CFR part 21. We also
propose edits to clarify that take of a threatened species is excepted
for the Service and NMFS independent of the section 6 provision. To
provide greater clarity and specificity, we also propose replacing the
phrase ``special rule'' with ``species-specific rule'' in several
locations in 50 CFR part 17.

Necessary and Advisable Determination

Section 4(d) provides two separate authorities. First, the
Secretary ``shall'' issue whatever regulations they deem necessary and
advisable for the conservation of any threatened species. Second, the
Secretary ``may'' choose to prohibit for a threatened species any of
the activities that section 9 prohibits for endangered species.
The first sentence has two components: a requirement (to issue
regulations for threatened species, if there are any that meet the
standard) and a standard (that the regulations be necessary and
advisable to provide for the conservation of the species). Thus, we
must determine what regulations, if

[[Page 40747]]

any, are necessary and advisable to provide for the conservation of the
species, and if so, promulgate them. We interpret the statutory
language (``necessary and advisable to provide for the conservation of
the species'') to focus the standard for 4(d) rules on providing for
the conservation of the species. Therefore, within that context we have
interpreted the ``necessary and advisable'' language to establish a
single standard, and we do not attempt to evaluate or make independent
findings as to whether a 4(d) rule is separately ``necessary'' and
``advisable.'' This interpretation was upheld by the court in In re
Polar Bear Endangered Species Act Listing and Sec. 4(d) Rule
Litigation, 818 F. Supp. 2d 214, 234 (D.D.C. 2011) (referring to
``Congress's broad delegation of authority to the Secretary to
determine what measures are necessary and advisable to provide for the
conservation of threatened species''). If this proposal is finalized,
for threatened species that use the blanket rules found at 50 CFR
17.31(a) and 17.71(a), we will not make necessary and advisable
determinations for the use of those blanket rules in future proposed or
final listing rules. Rather, we explain here why use of the blanket
rules is necessary and advisable to provide for the conservation of
threatened species unless we have issued a species-specific rule for a
given species (for species-specific rules, we will continue to include
the rationale for why as a whole it is necessary and advisable to
provide for the conservation of the species that is the subject of the
rule, as has been our past practice).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act provides a specific
list of prohibitions for endangered species under section 9, but the
Act does not provide these same prohibitions to threatened species.
Therefore, when we conduct a rulemaking action to list a species as
threatened, we recognize that the species is likely within the
foreseeable future to become at risk of extinction, and we will either
promulgate a species-specific rule to establish regulations to provide
for the conservation of the species or the species will be afforded
protections under the ``blanket rules'' at Sec. Sec. 17.31(a) or
17.71(a), as was the case for species listed prior to September 26,
2019.
The second source of authority in section 4(d) states that the
Secretary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1), in the case of fish
or wildlife, or 9(a)(2), in the case of plants. The use of the word
``may,'' along with the absence of any specific standards, in the
second sentence grants us particularly broad discretion to put in place
for threatened species any of the prohibitions that section 9 contains
for endangered wildlife and plants. These prohibitions make it illegal
for any person subject to the jurisdiction of the United States to
engage in the following actions:
With respect to endangered wildlife--take such a species
within the United States or on the high seas; or possess, sell,
deliver, carry, transport, or ship any such species that has been taken
illegally;
With respect to endangered plants--remove and reduce to
possession, or maliciously damage or destroy, any such plants from
areas under Federal jurisdiction; or remove, cut, dig up, or damage or
destroy such plants on any other area in knowing violation of any State
law or regulation in the course of violating any State criminal
trespass law; or
With respect to endangered fish or wildlife or plants--
import or export any such species; deliver, receive, carry, transport,
or ship any such species in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any such species (sections 9(a)(1) and 9(a)(2) of
the Act; 50 CFR 17.21 and 17.61).
The statute does not require us to make a finding that our decision
to apply, or not to apply, specific section 9 prohibitions to a
threatened species is necessary and advisable to provide for the
conservation of the species. However, we think it is most transparent
if in this proposed rule we describe our rationale for why the
regulatory texts that we are proposing at Sec. Sec. 17.31(a) and
17.71(a) (``blanket rules'') are, as a whole, necessary and advisable
to provide for the conservation of threatened species.
For all the reasons we described in this and the previous sections
above, we propose to find, even though we are not required to do so,
that the blanket rules are necessary and advisable to apply to a
threatened species unless we issue a species-specific rule for that
species. Section 4(d) of the Act indicates that the Secretary may by
regulation prohibit acts under section 9, and we have concluded that
applying those prohibitions immediately upon the listing of threatened
species in many circumstances will similarly help prevent further
declines of the species and further the conservation purposes of the
Act. In addition, we often lack a complete understanding of the cause
of a species' decline, and affording a threatened species protections
that are similar to the protections for an endangered species follows
basic conservation principles to attempt to prevent further declines of
the species. We have also found that it is easier to explain and
comprehend most species' protective regulations for purposes of
implementation and enforcement if they are modeled after the section 9
prohibitions--with which agency staff and the public are widely
familiar. Providing all of the common exceptions to threatened species
afforded protections under a ``blanket rule'' also helps to conserve
the species by incentivizing conservation through reducing unneeded
permitting (e.g., to allow take associated with aiding injured
wildlife).
Implementation
Pursuant to section 10(j) of the Act, members of experimental
populations are generally treated as threatened species; and pursuant
to 50 CFR 17.81, experimental populations are designated through
population-specific regulations found in Sec. Sec. 17.84 through
17.86. Under our existing practice, each population-specific regulation
contains all of the applicable prohibitions, along with any exceptions
to prohibitions, for that experimental population. All of the relevant
changes associated with this proposed rulemaking would similarly change
existing species-specific rules for experimental populations that
include references to 50 CFR 17.21, 17.31, 17.61, or 17.71.
Additional Exception Under Consideration
In addition to the proposed regulatory revisions described above,
we are also considering including an additional provision in Sec. Sec.
17.31(b) and 17.71(b) that would extend exceptions to the prohibitions
to certain individuals from federally recognized Tribes for take
associated with conservation-related activities. These exceptions to
prohibitions for threatened species are already afforded to employees
or agents of the Service, NMFS, States, and other agencies. Adding this
exception to the general prohibitions for threatened species may be
appropriate and would better align with our longstanding policy because
it would demonstrate DOI and Service recognition of federally
recognized Tribes as discussed above

[[Page 40748]]

(see the section above titled New Exceptions for Tribes). This
potential change would recognize the management efforts and expertise,
including Indigenous Knowledge, that federally recognized Tribes bring
to conservation of threatened species.
Therefore, we are soliciting comments on the following additional
text that we are considering for inclusion in Sec. 17.31(b):
``Notwithstanding Sec. 17.21(c)(1) and unless otherwise specified, any
employee or agent of the Service or NMFS, of a federally recognized
Tribe's natural resource agency undertaking conservation activities in
accordance with an approved cooperative agreement with the Service that
covers that threatened species of wildlife, or of a State conservation
agency that is operating a conservation program pursuant to the terms
of an approved cooperative agreement with the Service that covers the
threatened species of wildlife in accordance with section 6(c) of the
Act, who is designated by their agency for such purposes, may, when
acting in the course of their official duties, take those species.''
We are also soliciting comments on the following additional text
that we are considering for inclusion in Sec. 17.71(b):
``Notwithstanding Sec. 17.61(c)(1) and unless otherwise specified, any
employee or agent of the Service, of a federally recognized Tribe's
natural resource agency undertaking conservation activities in
accordance with an approved cooperative agreement with the Service that
covers the threatened species of plant, or of a State conservation
agency that is operating a conservation program pursuant to the terms
of an approved cooperative agreement that covers the threatened species
of plant with the Service in accordance with section 6(c) of the Act,
who is designated by that agency for such purposes, may, when acting in
the course of official duties, remove and reduce to possession from
areas under Federal jurisdiction those species.''
These potential regulatory changes would allow Tribes to conduct
conservation-related activities without a permit under the Act but
would not remove any requirements for Tribes to receive any other
applicable authorizations from the appropriate Federal land manager
(e.g., U.S. Forest Service special-use permits) or permits from a State
natural resource agency for situations in which the activity occurs
outside of lands owned and managed by the Tribe. In addition, if we
finalize regulations with the exceptions set forth above, nothing would
require Tribes to change their past practices for compliance with the
Act.
We request information and comments from Tribes and other members
of the public on the following issues:
The current regulatory burden to federally recognized
Tribes to apply for and receive permits for conservation actions for
threatened species and the extent to which extending this exception to
federally recognized Tribes would alleviate that burden.
Whether federally recognized Tribes would view this type
of exception as helpful or desirable.
Whether the inclusion of this exception in ``blanket
rules'' is consistent with the conservation purposes of the Act.
Whether we should require cooperative agreements with
federally recognized Tribes to provide the exception for conservation-
related activities and how we should determine the scope of such
exceptions.
Whether the phrase ``employee or agent'' of a Tribe's
``natural resource agency'' is the best way to describe the
organizational or functional role of individuals who would be
designated by a federally recognized Tribe for conservation purposes.
Whether this change that we are considering would have a
significant effect on the human environment.
Based upon the comments we receive, we may finalize the language
exactly as written above, we may finalize a revised version of the
language under consideration, or we may decide not to finalize this
provision.

Public Comments

We are seeking comments from all interested parties on the specific
revisions we are proposing or considering, including on whether
reinstating the ``blanket rules'' as a whole with the additional
exception we are considering for federally recognized Tribes, is
necessary and advisable to provide for the conservation of threatened
species, as well as on any of our analyses or preliminary conclusions
in the Required Determinations section of this document. We will
consider all relevant information prior to issuing a final rule.
Depending on the comments received, we may change the proposed
regulations based upon those comments.
You may submit your comments concerning this proposed rule by one
of the methods listed in ADDRESSES. We request that you send comments
only by the methods described in ADDRESSES. Comments sent by any other
method, to any other address or individual, may not be considered.
Comments must be submitted to https://www.regulations.gov before 11:59
p.m. (eastern time) on the date specified in DATES. We will not
consider hand-delivered comments that we do not receive by, or mailed
comments that are not postmarked by, the date specified in DATES.
Comments and materials we receive will be posted and available for
public inspection on https://www.regulations.gov. This generally means
that we will post any personal information you provide us. 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. Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, E.O. 13563,
and 14094
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this
proposed rule is significant.
Executive Order 14094 amends E.O. 12866 and reaffirms the
principles of E.O. 12866 and E.O. 13563 and states that regulatory
analysis should facilitate agency efforts to develop regulations that
serve the public interest, advance statutory objectives, and be
consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum
of January 20, 2021 (Modernizing Regulatory Review). Regulatory
analysis, as practicable and appropriate, shall recognize distributive
impacts and equity, to the extent permitted by law. E.O. 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
proposed rule in a manner consistent with these requirements. This
proposed rule is consistent with E.O. 13563, including with the
requirement of retrospective analysis of existing rules, designed ``to
make the agency's regulatory program more effective or less burdensome
in achieving the regulatory objectives.''
We are proposing revisions to portions of the implementing
regulations at 50 CFR part 17. The preamble to this proposed rule
details how the regulatory changes we are

[[Page 40749]]

proposing will improve the implementation of the Act.
The proposed revisions to 50 CFR 17.31 and 17.71 reinstate the
general application of the ``blanket rule'' option for protecting newly
listed threatened wildlife and plant species, respectively, pursuant to
section 4(d) of the Act. The proposal retains the continued option to
promulgate species-specific rules.
When we removed the ``blanket rule'' options in 2019, we compiled
certain historical data regarding the numbers of threatened wildlife
and plant species that the Service listed and the number of species-
specific rules that we had adopted each year between 1997 and 2018 (the
analysis timeframe) in an effort to describe for OMB and the public the
potential effects of those regulations (on https://www.regulations.gov,
see Supporting Document No. FWS-HQ-ES-2018-0007-69539 of Docket No.
FWS-HQ-ES-2018-0007).
If we reinstate the ``blanket rules,'' we anticipate that in some
cases we will continue to propose and finalize species-specific rules
that are designed to meet the specific conservation needs of species.
However, in other situations, we may find that the standard suite of
protections and exceptions for threatened species in the blanket rule
is appropriate. Because the blanket rule option had been available for
over 40 years prior to the 2019 4(d) rule, we do not anticipate any
material effects to the process or outcomes as a result of this
proposed change. However, because protections and exceptions for
threatened species are so highly fact-specific, it is not possible to
specify future benefits or costs stemming from the proposed revisions.
The updates we are proposing to the endangered plant regulations at 50
CFR 17.61(c)(1) to match amendments to the Act that Congress enacted in
1988 (16 U.S.C. 1538(a)(2)(B); Act section 9(a)(2)(B), Public Law 100-
478 (Oct. 7, 1988)) and other minor edits, also referred to as
technical corrections (e.g., in 50 CFR 17.8, 17.21, 17.31, 17.61, and
17.71) will improve readability, increase consistency among sections,
provide alignment with the Act, and correct other inaccuracies and will
not materially change the protections provided to threatened or
endangered species or their effects on any potentially regulated
entities.
We are also proposing revisions to 50 CFR 17.31 and 17.71 to extend
to federally recognized Tribes the exceptions to prohibitions for
threatened species that the regulations currently provide to the
Service and other Federal and State agencies to aid, salvage, or
dispose of threatened species. These proposed revisions would reduce
the regulatory burden or potential legal risks on Tribes associated
with conducting these activities. There may also be cost savings for
the Service for reduced permit application processing. We cannot
specify the extent to which there may be reduced costs to Tribes
associated with permit applications or risk of law enforcement action,
as we cannot predict which species may be listed as threatened species,
and of those species, which may occur in areas in which federally
recognized Tribes may conduct these actions.
The proposed revisions would further the effectiveness of the
Service's program to carry out the statutory mandates for conserving
threatened species. There are no identifiable quantifiable effects from
the proposed rule. There may be reduced administrative costs for
federally recognized Tribes or the Service associated with a potential
reduction in permitting. We do not anticipate any material effects such
that the rule would have an annual effect that would reach or exceed
$200 million or would adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
tribal governments or communities.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal 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, or that person's designee, 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 a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. We certify that, if adopted as
proposed, this proposed rule would not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
This rulemaking proposes to revise the Service's regulations
protecting endangered and threatened species under the Act. The changes
in this proposed rule are instructive regulations and do not directly
affect small entities.
Since the only potential entities directly affected by this
proposed regulation change are not small entities, including any small
businesses, small organizations, or small governments, we certify that,
if adopted as proposed, this rule would not have a significant economic
effect on a substantial number of small entities.

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) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this proposed rule would not impose a cost of $100
million or more in any given year on local or State governments or
private entities. A small government agency plan is not required. As
explained above, small governments would not be affected because the
proposed rule would not place additional requirements on any city,
county, or other local municipalities.
(b) This proposed rule would 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, this proposed rule is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
Tribal governments.

Takings (E.O. 12630)

In accordance with E.O. 12630, this proposed rule would not have
significant takings implications. This proposed rule would not directly
affect private property, nor would it cause a physical or regulatory
taking. It would not result in a physical taking because it would not
effectively compel a property owner to suffer a physical invasion of
property. Further, the proposed rule would not result in a regulatory
taking because it would not deny all economically beneficial or
productive use of the land or aquatic resources and it would
substantially advance a legitimate government interest (conservation
and recovery of

[[Page 40750]]

endangered species and threatened species) and would not present a
barrier to all reasonable and expected beneficial use of private
property.

Federalism (E.O. 13132)

In accordance with E.O. 13132, we have considered whether this
proposed rule would have significant federalism effects and have
determined that a federalism summary impact statement is not required.
This proposed rule pertains only to the Service's protective
regulations for endangered and threatened species promulgated under the
Act and would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.

Civil Justice Reform (E.O. 12988)

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
E.O. 12988. This proposed rule would revise the Service's regulations
for protecting species pursuant to the Act.

Government-to-Government Relationship With Tribes

In accordance with E.O. 13175, ``Consultation and Coordination with
Indian Tribal Governments,'' and the Department of the Interior's
manual at 512 DM 2, we are considering possible effects of this
proposed rule on federally recognized Indian Tribes. The Service has
reached a preliminary conclusion that the changes to these implementing
regulations do not directly affect specific species or Tribal lands.
This proposed rule would revise regulations for protecting endangered
and threatened species pursuant to the Act. The only provision in these
proposed regulations that could appear to have an effect on Tribes is
the exception to aid, salvage, or dispose of threatened species.
However, the inclusion of this exception does not require any Tribe to
do anything or change their management practices. Further, we are not
changing the relationship between the Service and Tribes. The proposed
provision simply provides a new mechanism for compliance with the Act.
These proposed regulations would not have substantial direct effects on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
We are considering the possible effects of this proposed rule on
federally recognized Indian Tribes. We will continue to collaborate
with Tribes on issues related to federally listed species and their
habitats and work with them as we implement the provisions of the Act.
See Secretaries' Order 3206, ``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act'' (June
5, 1997).

Paperwork Reduction Act

This proposed rule does not contain any new collection of
information that requires approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (45 U.S.C. 3501
et seq.). OMB has previously approved the information collection
requirements associated with permitting and reporting requirements and
assigned OMB Control Number 1018-0094 (expires 01/31/2024). 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

We are analyzing this proposed rule in accordance with the criteria
of the NEPA (42 U.S.C. 4321 et seq.), the Department of the Interior
regulations on Implementation of the National Environmental Policy Act
(43 CFR 46.10-46.450), and the Department of the Interior Manual (516
DM 8). We invite the public to comment on the extent to which this
proposed rule may have a significant impact on the human environment or
fall within one of the categorical exclusions for actions that have no
individual or cumulative effect on the quality of the human environment
that would require further analysis under NEPA. We will complete our
analysis, in compliance with NEPA, before finalizing these proposed
regulations.

Endangered Species Act

In developing this proposed rule, the Service is acting in our
unique statutory role as administrator of the Act and is engaged in a
legal exercise of interpreting the standards of the Act. The Service's
promulgation of interpretive rules that govern our implementation of
the Act is not an action that is in itself subject to the Act's
provisions, including section 7(a)(2). The Service has a historical
practice of issuing our general implementing regulations under the Act
without undertaking section 7 consultation. Given the plain language,
structure, and purposes of the Act, we find that Congress never
intended to place a consultation obligation on the Service's
promulgation of implementing regulations under the Act. In contrast to
actions in which we have acted principally as an ``action agency'' in
implementing the Act to propose or take a specific action (e.g.,
issuance of section 10 permits and actions under statutory authorities
other than the Act), here, the Service is carrying out an action that
is at the very core of our unique statutory role as administrator--
promulgating general implementing regulations interpreting the terms
and standards of the statute.
As stated above, some of the proposed regulatory changes would
result in minor changes to protections for currently listed threatened
species that were protected under prior versions of the ``blanket
rules'' or under a species-specific rule. To the extent that section 7
may apply to any of these proposed changes, we will undertake any
section 7 analysis as appropriate before finalizing these changes.

Energy Supply, Distribution or Use (E.O. 13211)

Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action, and
no statement of energy effects is required.

Clarity of the 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:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. 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 you believe are unclearly written, identify any sections or
sentences that you believe are too long, and identify the sections

[[Page 40751]]

where you believe lists or tables would be useful.

Authority

We issue this rule under the authority of the Endangered Species
Act, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we hereby propose to amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

Subpart A--Introduction and General Provisions

0
2. Amend Sec. 17.8 by revising paragraph (a) and the introductory text
of paragraph (b) to read as follows:

Sec. 17.8 Import exemption for threatened, CITES Appendix-II
wildlife.

(a) Except as provided in a species-specific rule in Sec. Sec.
17.40 through 17.48 or in paragraph (b) of this section, all provisions
of Sec. Sec. 17.31 and 17.32 apply to any specimen of a threatened
species of wildlife that is listed in Appendix II of the Convention.
(b) Except as provided in a species-specific rule in Sec. Sec.
17.40 through 17.48, any live or dead specimen of a fish and wildlife
species listed as threatened under this part may be imported without a
threatened species permit under Sec. 17.32 provided all of the
following conditions are met:
* * * * *

Subpart C--Endangered Wildlife

0
3. Amend Sec. 17.21 by revising paragraphs (c) and (d) to read as
follows:

Sec. 17.21 Prohibitions.

* * * * *
(c) Take. (1) It is unlawful to take endangered wildlife within the
United States, within the territorial sea of the United States, or upon
the high seas. The high seas include all waters seaward of the
territorial sea of the United States, except waters officially
recognized by the United States as the territorial sea of another
country, under international law.
(2) Notwithstanding paragraph (c)(1) of this section, any person
may take endangered wildlife in defense of their own life or the lives
of others.
(3) Notwithstanding paragraph (c)(1) of this section, any employee
or agent of the Service, any other Federal land management agency, the
National Marine Fisheries Service, or a State conservation agency, who
is designated by their agency for such purposes, may, when acting in
the course of their official duties, take endangered wildlife without a
permit if such action is necessary to:
(i) Aid a sick, injured, or orphaned specimen; or
(ii) Dispose of a dead specimen; or
(iii) Salvage a dead specimen that may be useful for scientific
study; or
(iv) Remove specimens that constitute a demonstrable but
nonimmediate threat to human safety, provided that the taking is done
in a humane manner; the taking may involve killing or injuring only if
it has not been reasonably possible to eliminate such threat by live-
capturing and releasing the specimen unharmed in an appropriate area.
(4) Any taking under paragraphs (c)(2) and (3) of this section must
be reported in writing to the Office of Law Enforcement via contact
methods listed at www.fws.gov, within 5 calendar days. The specimen may
only be retained, disposed of, or salvaged under directions from the
Office of Law Enforcement.
(5) Notwithstanding paragraph (c)(1) of this section, any qualified
employee or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by their agency for such purposes may,
when acting in the course of their official duties take those
endangered species that are covered by an approved cooperative
agreement for conservation programs in accordance with the cooperative
agreement, provided that such taking is not reasonably anticipated to
result in:
(i) The death or permanent disabling of the specimen;
(ii) The removal of the specimen from the State where the taking
occurred;
(iii) The introduction of the specimen so taken, or of any progeny
derived from such a specimen, into an area beyond the historical range
of the species; or
(iv) The holding of the specimen in captivity for a period of more
than 45 consecutive days.
(6) Notwithstanding paragraph (c)(1) of this section, any person
acting under a valid migratory bird rehabilitation permit issued
pursuant to Sec. 21.76 of this subchapter may take endangered
migratory birds without an endangered species permit if such action is
necessary to aid a sick, injured, or orphaned endangered migratory
bird, provided the permittee is adhering to the conditions of the
migratory bird rehabilitation permit.
(7) Notwithstanding paragraph (c)(1) of this section and consistent
with Sec. 21.76(a) of this subchapter:
(i) Any person who finds a sick, injured, or orphaned endangered
migratory bird may, without a permit, take and possess the bird in
order to immediately transport it to a permitted rehabilitator; and
(ii) Persons exempt from the permit requirements of Sec.
21.12(b)(2) and (c) of this subchapter may take sick and injured
endangered migratory birds without an endangered species permit in
performing the activities authorized under Sec. 21.12(b)(2) and (c) of
this subchapter.
(d) Possession and other acts with unlawfully taken wildlife. (1)
It is unlawful to possess, sell, deliver, carry, transport, or ship, by
any means whatsoever, any endangered wildlife that was taken in
violation of paragraph (c) of this section.
Example. A person captures a whooping crane, an endangered species,
in Texas and gives it to a second person, who puts it in a closed van
and drives 30 miles to another location in Texas. The second person
then gives the whooping crane to a third person, who is apprehended
with the bird in his possession. All three people have violated the
law: the first by illegally taking the whooping crane; the second by
transporting an illegally taken whooping crane; and the third by
possessing an illegally taken whooping crane.
(2) Notwithstanding paragraph (d)(1) of this section, Federal and
State law enforcement officers may possess, deliver, carry, transport,
or ship any endangered wildlife taken in violation of the Act as
necessary in performing their official duties.
(3) Notwithstanding paragraph (d)(1) of this section, any person
acting under a valid migratory bird rehabilitation permit issued
pursuant to Sec. 21.76 of this subchapter may possess and transport
endangered migratory birds without an endangered species permit when
such action is necessary to aid a sick, injured, or orphaned endangered
migratory bird, provided the permittee is adhering to the conditions of
those permits.
(4) Notwithstanding paragraph (d)(1) of this section, and
consistent with Sec. 21.76(a) of this subchapter, persons

[[Page 40752]]

exempt from the permit requirements of Sec. 21.12(b)(2) and (c) of
this subchapter may possess and transport sick and injured endangered
migratory bird species without an endangered species permit in
performing the activities authorized under Sec. 21.12(b)(2) and (c) of
this subchapter.
* * * * *

Subpart D--Threatened Wildlife

0
4. Revise Sec. 17.31 to read as follows:

Sec. 17.31 Prohibitions.

(a) Except as provided in Sec. Sec. 17.4 through 17.8, or in a
permit issued pursuant to Sec. 17.32, the provisions of paragraph (b)
of this section and all of the provisions of Sec. 17.21 (for
endangered species of wildlife) except Sec. 17.21(c)(3) and (5) apply
to threatened species of wildlife, unless the Secretary has promulgated
species-specific provisions (see paragraph (c) of this section).
(b)(1) Notwithstanding Sec. 17.21(c)(1), and unless otherwise
specified, any employee or agent of the Service, any other Federal land
management agency, the National Marine Fisheries Service, a State
conservation agency, or a federally recognized Tribe, who is designated
by their agency or Tribe for such purposes, may, when acting in the
course of their official duties, take threatened wildlife without a
permit if such action is necessary to:
(i) Aid a sick, injured or orphaned specimen; or
(ii) Dispose of a dead specimen; or
(iii) Salvage a dead specimen that may be useful for scientific
study; or
(iv) Remove specimens that constitute a demonstrable but
nonimmediate threat to human safety, provided that the taking is done
in a humane manner; the taking may involve killing or injuring only if
it has not been reasonably possible to eliminate such threat by live-
capturing and releasing the specimen unharmed, in an appropriate area.
(2) Any taking under paragraph (b)(1) of this section must be
reported in writing to the Office of Law Enforcement, via contact
methods listed at www.fws.gov, within 5 calendar days. The specimen may
only be retained, disposed of, or salvaged under directions from the
Office of Law Enforcement.
(3) Notwithstanding Sec. 17.21(c)(1), and unless otherwise
specified, any employee or agent of the Service, of the National Marine
Fisheries Service, or of a State conservation agency that is operating
a conservation program pursuant to the terms of an approved cooperative
agreement with the Service that covers the threatened species of
wildlife in accordance with section 6(c) of the Act, who is designated
by their agency for such purposes, may, when acting in the course of
their official duties, take those species.
(c) For threatened species of wildlife that have a species-specific
rule in Sec. Sec. 17.40 through 17.48, the provisions of paragraph (b)
of this section and Sec. 17.32 apply unless otherwise specified, and
the species-specific rule will contain all of the prohibitions and any
additional exceptions that apply to that species.
0
5. Amend Sec. 17.32 by revising the undesignated introductory text to
read as follows:

Sec. 17.32 Permits--general.

Upon receipt of a complete application, the Director may issue a
permit for any activity otherwise prohibited with regard to threatened
wildlife. The permit shall be governed by the provisions of this
section unless a species-specific rule applicable to the wildlife and
set forth in Sec. Sec. 17.40 through 17.48 of this part provides
otherwise. A permit issued under this section must be for one of the
following purposes: scientific purposes, or the enhancement of
propagation or survival, or economic hardship, or zoological
exhibition, or educational purposes, or incidental taking, or special
purposes consistent with the purposes of the Act. Such a permit may
authorize a single transaction, a series of transactions, or a number
of activities over a specific period of time.
* * * * *
0
6. Amend Sec. 17.40 by revising the section heading to read as
follows:

Sec. 17.40 Species-specific rules--mammals.

0
7. Amend Sec. 17.41 by revising the section heading to read as
follows:

Sec. 17.41 Species-specific rules--birds.

0
8. Amend Sec. 17.42 by revising the section heading to read as
follows:

Sec. 17.42 Species-specific rules--reptiles.

0
9. Amend Sec. 17.43 by revising the section heading to read as
follows:

Sec. 17.43 Species-specific rules--amphibians.

0
10. Amend Sec. 17.44 by revising the section heading to read as
follows:

Sec. 17.44 Species-specific rules--fishes.

0
11. Amend Sec. 17.45 by revising the section heading to read as
follows:

Sec. 17.45 Species-specific rules--snails and clams.

0
12. Amend Sec. 17.46 by revising the section heading to read as
follows:

Sec. 17.46 Species-specific rules--crustaceans.

0
13. Amend Sec. 17.47 by revising the section heading to read as
follows:

Sec. 17.47 Species-specific rules--insects.

Sec. 17.48 [Removed and Reserved]

0
14. Remove and reserve Sec. 17.48.

Subpart F--Endangered Plants

0
15. Amend Sec. 17.61 by revising paragraphs (a), (b), and (c) to read
as follows:

Sec. 17.61 Prohibitions.

(a) General prohibitions. Except as provided in a permit issued
pursuant to Sec. 17.62 or Sec. 17.63, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or to cause to be committed,
any of the acts described in paragraphs (b) through (e) of this section
in regard to any endangered plant.
(b) Import or export. It is unlawful to import or to export any
endangered plant. Any shipment in transit through the United States is
an importation and an exportation, whether or not it has entered the
country for customs purposes.
(c) Remove and reduce to possession. (1) It is unlawful to remove
and reduce to possession any endangered plant from an area under
Federal jurisdiction; maliciously damage or destroy the species on any
such area; or remove, cut, dig up, or damage or destroy the species on
any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law.
(2) Notwithstanding paragraph (c)(1) of this section, any employee
or agent of the Service, any other Federal land management agency, or a
State conservation agency, who is designated by their agency for such
purposes, may, when acting in the course of official duties, remove and
reduce to possession endangered plants from areas under Federal
jurisdiction without a permit if such action is necessary to:
(i) Care for a damaged or diseased specimen;
(ii) Dispose of a dead specimen; or
(iii) Salvage a dead specimen that may be useful for scientific
study.
(3) Any removal and reduction to possession pursuant to paragraph
(c)(2) of this section must be reported in writing to the Office of Law
Enforcement, via contact methods listed at www.fws.gov within 5
calendar days. The specimen may only be retained, disposed of, or
salvaged under directions from the Office of Law Enforcement.

[[Page 40753]]

(4) Notwithstanding paragraph (c)(1) of this section, any qualified
employee or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by their agency for such purposes, may,
when acting in the course of official duties, remove and reduce to
possession from areas under Federal jurisdiction those endangered
plants that are covered by an approved cooperative agreement for
conservation programs in accordance with the cooperative agreement,
provided that such removal is not reasonably anticipated to result in:
(i) The death or permanent damage of the specimens;
(ii) The removal of the specimen from the State where the removal
occurred; or
(iii) The introduction of the specimen so removed, or of any
propagules derived from such a specimen, into an area beyond the
historical range of the species.
* * * * *

Subpart G--Threatened Plants

0
16. Revise Sec. 17.71 to read as follows:

Sec. 17.71 Prohibitions.

(a) Except as provided in a permit issued pursuant to Sec. 17.72,
the provisions of paragraph (b) of this section and all of the
provisions of Sec. 17.61, except Sec. 17.61(c)(2) through (4), apply
to threatened species of plants, unless the Secretary has promulgated
species-specific provisions (see paragraph (c) of this section), with
the following exception: Seeds of cultivated specimens of species
treated as threatened are exempt from all the provisions of Sec.
17.61, provided that a statement that the seeds are of ``cultivated
origin'' accompanies the seeds or their container during the course of
any activity otherwise subject to the regulations in this subpart.
(b)(1) Notwithstanding Sec. 17.61(c)(1) and unless otherwise
specified, any employee or agent of the Service, any other Federal land
management agency, federally recognized Tribe, or a State conservation
agency, who is designated by their agency or Tribe for such purposes,
may, when acting in the course of official duties, remove and reduce to
possession threatened plants from areas under Federal jurisdiction
without a permit if such action is necessary to:
(i) Care for a damaged or diseased specimen;
(ii) Dispose of a dead specimen; or
(iii) Salvage a dead specimen that may be useful for scientific
study.
(2) Any removal and reduction to possession pursuant to paragraph
(b)(1) of this section must be reported in writing to the Office of Law
Enforcement, via contact methods listed at www.fws.gov, within 5
calendar days. The specimen may only be retained, disposed of, or
salvaged under directions from the Office of Law Enforcement.
(3) Notwithstanding Sec. 17.61(c)(1) and unless otherwise
specified, any employee or agent of the Service or of a State
conservation agency that is operating a conservation program pursuant
to the terms of an approved cooperative agreement with the Service that
covers the threatened species of plants in accordance with section 6(c)
of the Act, who is designated by their agency for such purposes, may,
when acting in the course of official duties, remove and reduce to
possession from areas under Federal jurisdiction those species.
(c) For threatened species of plants that have a species-specific
rule in Sec. Sec. 17.73 through 17.78, the provisions of paragraph (b)
of this section and Sec. 17.72 apply unless otherwise specified, and
the species-specific rule will contain all the prohibitions and any
additional exceptions that apply to that species.
0
17. Amend Sec. 17.72 by revising the undesignated introductory
paragraph to read as follows:

Sec. 17.72 Permits--general.

Upon receipt of a complete application, the Director may issue a
permit authorizing any activity otherwise prohibited with regard to
threatened plants. The permit shall be governed by the provisions of
this section unless a species-specific rule applicable to the plant and
set forth in Sec. Sec. 17.73 through 17.78 of this part provides
otherwise. A permit issued under this section must be for one of the
following: scientific purposes, the enhancement of the propagation or
survival of threatened species, economic hardship, botanical or
horticultural exhibition, educational purposes, or other activities
consistent with the purposes and policy of the Act. Such a permit may
authorize a single transaction, a series of transactions, or a number
of activities over a specified period of time.
* * * * *
0
18. Amend Sec. 17.73 by revising the section heading to read as
follows:

Sec. 17.73 Species-specific rules--flowering plants.

0
19. Amend Sec. 17.74 by revising the section heading to read as
follows:

Sec. 17.74 Species-specific rules--conifers and cycads.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-13055 Filed 6-21-23; 8:45 am]
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