[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Rules and Regulations]
[Pages 23919-23941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06901]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2023-0018; FXES1113090FEDR-245-FF09E23000]
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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise our 
regulations concerning protections of endangered species and threatened 
species under the Endangered Species Act (Act or ESA). We 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 section 4(d) rules. We 
also 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 
also make minor changes to clarify or correct the existing regulations 
for endangered species and threatened species; these minor changes do 
not alter the substance or scope of the regulations.

DATES: This final rule is effective May 6, 2024.

ADDRESSES: Public comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
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 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 endangered species and 
threatened species and use its authorities to further the purposes of 
the Act (16 U.S.C. 1531(c)(1)). This 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, the first sentence in section 4(d) of the 
Act requires that the Secretary issue regulations that are necessary 
and advisable to provide for the conservation of threatened species; 
these are referred to as ``4(d) rules.'' In addition, the second 
sentence of section 4(d) authorizes the Secretary to prohibit with 
respect to any threatened species any act prohibited under section 9 
with respect to endangered species. With these two sentences in section 
4(d), Congress delegated the authority to the Secretary to determine 
what protections would be necessary and advisable to provide for the 
conservation of threatened species, and even broader authority to put 
in place any of the section 9 prohibitions, 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 with certain exceptions to those prohibitions) 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 4(d) 
rule). For species with a species-specific 4(d) rule, that rule 
contains 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 4(d) rule. Under the 2019 4(d) rule, the only way to apply 
protections to a species newly listed as a threatened species is for us 
to issue a species-specific 4(d) 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 as revised in 
the 2019 4(d) rule, the necessity of those regulations, their 
consistency with applicable case law, and other factors. Based on our 
evaluation, and for reasons discussed in more detail below, we revise 
our regulations at 50 CFR 17.31 and 17.71 to reinstate the ``blanket 
rules'' that apply the section 9 prohibitions to newly listed 
threatened species, and we also update other provisions in 50 CFR part 
17. The updated prohibitions and exceptions differ from the previous 
``blanket rules'' in two substantive ways. First, federally recognized 
Tribes are now included as entities authorized to aid, salvage, or 
dispose of threatened species without a permit. Second, as a result of 
updating our endangered plant regulations at 50 CFR 17.61(c)(1) to 
match amendments to the Act that Congress enacted in 1988, threatened 
plants protected under the previous ``blanket rule'' are now protected 
from being maliciously damaged or destroyed on areas under Federal 
jurisdiction, or being removed, cut, dug up, or damaged or destroyed 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. With these regulation revisions, we are not required to reevaluate 
any previously finalized species-specific 4(d) rules. However, any 
threatened species with a species-specific 4(d) rule that refers to 50 
CFR 17.31(b) or 17.71(b) now has the updated prohibitions and 
exceptions. In

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addition, any threatened species of wildlife or plant protected with 
the previous ``blanket rules'' has the updated prohibitions and 
exceptions as outlined under 50 CFR 17.31(a) or 17.71(a), respectively, 
for any future actions after the effective date of this rule (see 
DATES, above).
    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. As was the case when we amended our section 4(d) 
regulations in 2019, the amendments in this rule affect only species 
under Service jurisdiction.
    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 16, 2022, the 
District Court issued orders granting the Service's motion to remand 
the 2019 4(d) rule to the Service without vacating it. On June 22, 
2023, we published in the Federal Register (88 FR 40742) a proposed 
rule to amend the regulations to reinstate the ``blanket rule'' for 
newly listed threatened species, to extend certain exceptions to 
federally recognized Tribes, and to make minor clarifications and 
corrections. We accepted public comments on the June 22, 2023, proposed 
rule for 60 days, ending August 21, 2023. With this rule, the Service 
is finalizing these amendments to our regulations at 50 CFR part 17.
    This rule is one of three rules publishing in this issue of the 
Federal Register that change regulations that implement the Act. Two of 
these rules are joint between the Service and NMFS, and this document 
is specific to the Service.

This Rulemaking Action

    We are revising the regulations in 50 CFR part 17, subparts C, D, 
F, and G, with minor administrative revisions to subpart A. We 
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 4(d) rules 
(50 CFR 17.31(a) and 17.71(a)). We add federally recognized Tribes to 
the entities authorized to aid or salvage threatened species (50 CFR 
17.31(b) and 17.71(b)(1)). We also update endangered plant regulatory 
protections to mirror existing protections at section 9(a)(2)(B) of the 
Act (50 CFR 17.61(c)(1)) and clarify that State conservation agencies 
have the authority to ``take'' threatened species when carrying out 
conservation programs unless a species-specific 4(d) rule specifically 
prohibits that take (50 CFR 17.31(c) and 17.71(c)). Finally, we make 
minor changes to clarify, without changing the scope or intent of, the 
existing regulations in several locations (e.g., 50 CFR 17.21, 17.31, 
17.32), 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). In the event any provision is 
invalidated or held to be impermissible as a result of a legal 
challenge, the ``remainder of the regulation could function sensibly 
without the stricken provision.'' Belmont Mun. Light Dep't v. FERC, 38 
F.4th 173, 187 (D.C. Cir. 2022) (quoting MD/DC/DE Broad. Ass'n v. FCC, 
236 F.3d 13, 22 (D.C. Cir. 2001)). Because each of the provisions 
stands on its own, the Service views each of the provisions as 
operating independently from the other provisions. To illustrate this 
with one possible example, in the event that a reviewing Court were to 
find that the provision extending to Tribes the authority to aid 
threatened species without a permit is invalid, that finding would not 
affect the revisions to our endangered plant regulations which 
incorporate the 1988 amendments to the Act. Therefore, in the event 
that any portion of this final rule is held to be invalid or 
impermissible, the Service intends that the remaining aspects of the 
regulatory provisions be severable.

Reinstatement of Blanket Rules

    The primary revisions are to 50 CFR 17.31 and 17.71; the revisions 
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. ``Blanket rule'' 
protections are but one option for protecting threatened species; thus, 
we also retain the option to promulgate species-specific 4(d) rules.
    Our regulations describing the protections included in either 
``blanket rule'' are found at 50 CFR 17.31(a) and 17.71(a) for wildlife 
and plants, respectively. They include protections from our endangered 
species regulations at 50 CFR 17.21 and 17.61, thereby incorporating 
all of the section 9 prohibitions, which make it illegal for any person 
subject to the jurisdiction of the United States to engage in the 
following actions:
     With respect to endangered fish or 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 or in the course of violating any State criminal 
trespass law; and
     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 (16 U.S.C. 1538(a)(1) and (a)(2); 
50 CFR 17.21 and 17.61).
    Our endangered species regulations also include a suite of 
exceptions, which allow for various entities to conduct otherwise 
prohibited acts without a permit under the Act (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 
endangered species).
    Protections for threatened species under the ``blanket rules'' also 
include these standard exceptions; however,

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because threatened species are not in danger of extinction but are 
likely to become so within the foreseeable future, we provide 
additional flexibility for managing threatened species. At 50 CFR 
17.31(b) and 17.71(b), we include for threatened species exceptions 
that are more numerous or broader than those for endangered species. 
These include additional exceptions for the Service and NMFS to conduct 
otherwise prohibited acts without a permit under the Act associated 
with carrying out conservation actions and broader exceptions for 
agents or employees of State conservation agencies operating a 
conservation program in accordance with section 6(c) of the Act to 
conduct otherwise prohibited acts without a permit under the Act. These 
specific exceptions were available in ``blanket rules'' prior to the 
2019 4(d) rule, and we are reinstating them. We also extend to 
federally recognized Tribes the exceptions to prohibitions for 
threatened species that the regulations currently provide to the 
employees or agents of the Services and other Federal and State 
agencies to aid, salvage, or dispose of threatened species (see the 
preamble of our June 22, 2023, proposed rule (88 FR 40742 at 40745-
40746) for further discussion of our rationale, which has not changed 
in this final rule). We have found these base protections and 
exceptions make sense for most threatened species (see Necessary and 
Advisable Determination, below).
    While we can put these base protections into species-specific 4(d) 
rules and craft species-specific 4(d) rules for every threatened 
species, we find reinstating the ``blanket rule'' option to be a 
superior choice. This is because whenever we determine that the 
standard suite of protections and exceptions is appropriate, we will 
not need to develop any additional regulatory text to codify a species-
specific 4(d) rule. It is more straightforward and transparent to have 
species-specific 4(d) rules in one place in the Code of Federal 
Regulations and ``blanket rule'' protections described in another, as 
we had done for the 40 years prior to September 26, 2019. This approach 
will 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.
    Reinstating the ``blanket rule'' option also ensures there is never 
a lapse in threatened species protections. If we do not promulgate a 
species-specific 4(d) rule at the time of listing, the ``blanket rule'' 
protections will be in place to provide for the conservation of that 
threatened species. We are simply providing a streamlined option for 
protecting threatened species for situations in which we do not 
promulgate species-specific 4(d) rules.
    Our ability to tailor ``take'' prohibitions or other protections to 
what is necessary and advisable for a given species is an important 
tool to further the conservation of threatened species and will not be 
affected by reinstating the ``blanket rule'' option. Prior to our 2019 
4(d) rule, we also had the option to issue species-specific 4(d) rules, 
which we did approximately 25 percent of the time. Species-specific 
4(d) rules can: (1) facilitate implementation of beneficial 
conservation actions and (2) reduce or otherwise tailor 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.
    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 4(d) rule would be 
appropriate while for other species we will determine that ``blanket 
rule'' protections are appropriate. When we find that the suite of 
protections (prohibitions and exceptions) at Sec.  17.31(a) or Sec.  
17.71(a) is appropriate for a given species, we will state it in the 
preamble of the proposed and final rule listing a species as a 
threatened species, and we will not develop any additional regulatory 
text that would appear as a species-specific 4(d) rule (at 50 CFR 17.40 
through 17.48 (for wildlife) or 17.73 through 17.78 (for plants)). When 
we determine that species-specific 4(d) rules are appropriate, we 
intend to finalize those species-specific 4(d) rules concurrently with 
final listing rules. In most cases, we will propose the species-
specific 4(d) rule concurrently with the proposed listing rule. Whether 
proposing to protect a threatened species with a ``blanket rule'' or a 
species-specific 4(d) rule, the public will be afforded an opportunity 
to provide public comment on the proposed action.

Effects to Currently Listed Threatened Species

    Reinstating the ``blanket rule'' option and other regulation 
revisions will 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 4(d) rule. Species that were protected under 
prior versions of the ``blanket rules'' or under species-specific 4(d) 
rules that refer to any of the sections we are revising receive the 
updated protections for any actions occurring after the effective date 
of this rule (see DATES, above). As stated above, the revised 
prohibitions and exceptions make only two substantive changes to the 
protections for those previously listed threatened species. First, we 
add federally recognized Tribes to the entities authorized to aid, 
salvage, or dispose of threatened species. Second, as a result of 
updating our endangered plant regulations at 50 CFR 17.61(c)(1) to 
match amendments to the Act that Congress enacted in 1988, threatened 
plants protected under the previous ``blanket rule'' are now protected 
from being maliciously damaged or destroyed on areas under Federal 
jurisdiction, or being removed, cut, dug up, or damaged or destroyed 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.
    All of the relevant changes associated with this rulemaking will 
similarly change any existing species-specific 4(d) rules for 
experimental populations that include references to 50 CFR 17.21 or 
17.31 (there are no current experimental populations for plants).

Corrections and Clarifications

    In addition to the revisions above, we are also revising multiple 
sections of 50 CFR part 17, including sections related to protections 
for endangered plants, to improve readability, increase consistency 
among sections, align with the Act, and correct inaccuracies. Here we 
provide additional information on our update to our endangered plant 
regulations. See our June 22, 2023, proposed rule (88 FR 40742 at 
40745-40746) for additional details about the remaining changes.
    We are 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); ESA section 9(a)(2)(B); Pub. L. 100-478 
(October 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 the 
action was committed on an area under Federal jurisdiction and the 
plant removed from that area (H. Rept. No. 100-467 (December 7, 1987)). 
To

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ensure that our regulations conform to the statutory language regarding 
prohibitions for endangered plants, we are adding 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. This regulatory revision does not alter existing 
protections for endangered plant species, as they already had these 
protections through the Act itself. This revision is a simple 
correction to our regulations to match the statutory language at 
section 9(a)(2)(B). As stated above, our ``blanket rule'' for 
threatened plant species incorporates the protections from our 
endangered plant regulations; therefore, threatened plants protected by 
the plant ``blanket rule'' receive this additional protection.

Necessary and Advisable Determination

    As further discussed below, we are not required to make a 
``necessary and advisable'' determination when we apply or do not apply 
specific section 9 prohibitions to a threatened 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, even though we are 
not required to make such a determination, we have chosen to be as 
transparent as possible and explain below why applying our regulatory 
text at 50 CFR 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 4(d) rule is developed.
    Section 4(d) provides two separate authorities. First, the 
Secretary ``shall'' issue whatever regulations they deem necessary and 
advisable to provide 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 of section 4(d) in the Act 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 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 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''). For species that we list as threatened in the future and 
protect using the ``blanket rules'' found at 50 CFR 17.31(a) and 
17.71(a), we will not make separate ``necessary and advisable'' 
determinations for the use of those ``blanket rules.'' Rather, we 
explain here why use of the ``blanket rules'' is generally necessary 
and advisable to provide for the conservation of threatened species 
unless we issue a species-specific 4(d) rule for a given species. (For 
species-specific 4(d) rules, we will continue to include the rationale 
for why the rule as a whole 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 a 
threatened species, we recognize that the species is likely to become 
at risk of extinction within the foreseeable future, and we will either 
promulgate a species-specific 4(d) 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.  17.31(a) or 
Sec.  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 section 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 fish or 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 or in the course of violating any State criminal 
trespass law; and
     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 (16 U.S.C. 1538(a)(1) and (a)(2); 
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, it is most transparent if in this 
rule we describe our rationale for why the regulatory texts that we are 
finalizing 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 every listed threatened species, we will determine what section 
4(d) protections are appropriate. We anticipate that for some species 
we will determine that species-specific 4(d) protections would be 
appropriate while for other species we will determine that ``blanket 
rule'' protections are appropriate. In circumstances in which we find 
that ``blanket rule'' protections are appropriate, we will reference 
this final rule as our explanation for why a ``blanket rule'' is 
necessary and advisable for the species. In contrast, in circumstances 
in which we determine

[[Page 23923]]

species-specific 4(d) protections are appropriate, we will explain in 
the preamble to the rule why the species-specific 4(d) 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 
4(d) rules, we are not ``removing'' or ``adding'' protections compared 
to the ``blanket rules''; therefore, for newly listed threatened 
species, we will not compare or contrast the protections at Sec.  
17.31(a) or Sec.  17.71(a) with any of the individual proposed species-
specific protective regulations. We will simply discuss why the 
species-specific rule, as a whole, is necessary and advisable for that 
species.
    We conclude for two primary reasons that applying section 9 
prohibitions and exceptions to those prohibitions similar to our 
longstanding ``blanket rules'' that were available prior to the 2019 
4(d) rule is necessary and advisable for the conservation of a 
threatened species unless we promulgate species-specific 4(d) 
protections for that species.
    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 
within 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) (16 U.S.C. 1531(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.
    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, 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 
4(d) rules accordingly.
    As discussed above, the ``blanket rules'' also include standard 
exceptions to the section 9 prohibitions. Providing these exceptions to 
threatened species afforded protections under a ``blanket rule'' helps 
to conserve the species by incentivizing conservation through reducing 
unneeded permitting (e.g., to allow take associated with aiding injured 
wildlife).
    The second reason for applying the section 9 prohibitions for 
endangered species to threatened species under a ``blanket rule'' is a 
practical reason. The first sentence of section 4(d) is open-ended--
requiring only that we issue protective regulations that are 
``necessary and advisable to provide for the conservation of the 
species.'' But in most situations, for purposes of implementation and 
enforcement, it is easier to explain and comprehend protections for 
threatened species if they are modeled after the section 9 prohibitions 
for endangered species--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 in most species-
specific 4(d) rules.
    For all these reasons, we have determined, even though we are not 
required to do so, that the ``blanket rules'' are necessary and 
advisable to provide for the conservation of threatened species except 
for those species for which we issue species-specific 4(d) rules.

Relationship to Section 10(j)

    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. Further, our 
regulations at 50 CFR 17.81(f) state that any population of an 
endangered species or a threatened species determined by the Secretary 
to be an experimental population in accordance with subpart H of part 
17 will be identified by a species-specific 4(d) rule in Sec. Sec.  
17.84 and 17.85 as appropriate and separately listed in Sec.  17.11(h) 
(wildlife) or Sec.  17.12(h) (plants) as appropriate. Per those 
regulations, all experimental populations will have a species-specific 
4(d) rule.

Additional Considered Provision

    While not proposed as regulatory text, in the proposed rule we 
solicited comments on an additional potential exception in 50 CFR 
17.31(b) and 17.71(b) that would extend an exception to the 
prohibitions to certain individuals from federally recognized Tribes 
for take associated with conservation-related activities. After review 
of public comments received (see Summary of Comments and Responses, 
below), we are not revising the regulations to include this particular 
exception at this time. We are finalizing the regulations as proposed 
to allow federally recognized Tribes to aid or salvage threatened 
species without a permit.

Summary of Comments and Responses

    In our June 22, 2023, proposed rule (88 FR 40742), we requested 
public comments by August 21, 2023. We received more than 150,000 
comments by that date. We received comments from a range of sources, 
including individual members of the public, States, Tribes, industry 
organizations, legal foundations and firms, and environmental 
organizations. We received several requests for extensions of the 
public comment period. However, we elected not to extend the public 
comment period beyond the original 60-day public comment period because 
we found the 60-day comment period provided sufficient time for a 
thorough review of the proposed revisions. The majority of the proposed 
revisions are to portions of the regulations that were previously 
revised in 2019, and we publicly announced in a press release and on a 
Service website our intention to revise these regulations in June of 
2021. The number of comments received indicated that members of the 
public were aware of the proposed rule and had adequate time to review 
it. In addition, we provided six informational sessions for a wide 
variety of audiences. Over 500 attendees participated in these 
sessions, and we addressed questions from the participants as part of 
the

[[Page 23924]]

sessions. Finally, on our website, we provided additional information 
about the regulations, such as frequently asked questions and a 
prerecorded presentation on the proposed revisions.
    Most of the comments we received were nonsubstantive in nature, 
expressing either general support for, or opposition to, provisions of 
the proposed rule with no supporting information or analysis. Other 
comments expressed opinions regarding topics not covered within the 
proposed regulation. For example, we received comments focused on 
issues that may arise during implementation of our regulations such as 
opinions as to the scope of the Service's discretion in extending 
section 9 prohibitions in future species-specific 4(d) rules. We note 
that, for each future application of a ``blanket rule'' or promulgation 
of a species-specific 4(d) rule, the Service will provide an 
opportunity for public comment. The vast majority of the comments 
received were nearly identical statements from individuals indicating 
their general support for the proposed changes to the regulations but 
not containing substantive content. We also received approximately 90 
letters with detailed substantive comments with specific rationales for 
support of or opposition to specific portions of the proposed rule. 
Below, we summarize and respond to the significant, substantive 
comments we received by the close of the comment period.

Reinstatement of Blanket Rules

    Comment 1: Multiple commenters supported reinstatement of the 
``blanket rules.'' Many agreed that we may not fully understand the 
threats to a species or threats may change after listing a species. 
They noted that, when appropriate, future species-specific 4(d) rules 
can be promulgated outside the time constraints required by the listing 
process, and after species and land-management needs are fully 
understood to further the conservation of the threatened species. 
Others suggested reinstating the ``blanket rule'' options allows the 
Service to best uphold the purposes of the Act while streamlining its 
implementation and maximizing efficiency.
    Response: We appreciate the comments and include similar reasons 
for reinstating the ``blanket rules'' in our rationale in the preamble 
of this document.
    Comment 2: Multiple commenters addressed the question of whether 
``blanket rules'' are legal under the Act, including whether they are 
consistent with congressional intent. Some commenters suggested that 
the rules are not legal because the statutory language and legislative 
history indicate that Congress intended for the protections for 
threatened species to differ from, and be more flexible than, the 
protections for endangered species, as well as for the Service to 
develop a separate and individualized set of protective regulations for 
each threatened species. On the other hand, other commenters viewed the 
``blanket rules'' as legal and consistent with congressional intent. 
These commenters pointed out that ``blanket rules'' further the 
purposes of the Act by allowing the Service to protect species quickly 
without having to develop a new set of regulations for each species, 
and that courts have upheld the ``blanket rules'' that were in place 
before the Service promulgated the 2019 4(d) rule.
    Response: We considered all of the comments and have reached the 
conclusion that promulgating ``blanket rules'' is legal under the Act 
and consistent with the intent of Congress. Section 4(d) of the Act 
requires that, whenever a species is listed as a threatened species, 
the Service must issue protective regulations that are necessary and 
advisable to provide for the conservation of the species, but there is 
nothing in the statute that prevents us from first issuing ``blanket 
rules'' proactively that we can later decide whether to apply to 
species that we list as a threatened species or to promulgate a 
species-specific 4(d) rule for that species. Nor do the specific words 
that commenters quote from section 4(d) of the statute (such as ``any 
threatened species'' and ``any act prohibited under section [9]'') and 
from the legislative history (such as ``that species'' and ``particular 
threatened species,'' S. Rpt. No. 93-307, at 8 (June 30, 1973)) require 
that regulations extending the section 9 prohibitions apply only to 
individual species. ``Species'' is both the single and the plural form 
of the word, so ``any species'' could refer to any ``one or more 
species.'' In addition, there are specific words in the legislative 
history that point towards multiple species (for example, a statement 
about threatened species in the context of section 4(d) that there is 
``almost an infinite number of options available to [the Secretary] 
with regard to permitted activities for those species'' in H.R. Rep. 
No. 93-412, at 12 (1973)). The court in Sweet Home Chapter of 
Communities for a Greater Oregon v. Babbitt ruled that this approach is 
consistent with the ESA (1 F.3d. 1, 8 (D.C. Cir. 1993), modified on 
other grounds on reh'g, 17 F.3d 1463 (D.C. Cir. 1994), rev'd on other 
grounds, 515 U.S. 687 (1995)).
    With respect to comments stating that in the statute Congress took 
differing approaches between the prohibitions in section 9 that apply 
automatically to endangered species upon listing and the more flexible 
provisions in section 4(d), we are retaining flexibility with the 
``blanket rules'' because we still determine for each threatened 
species whether to adopt species-specific 4(d) protections or to retain 
the ``blanket rule'' protections. Reinstating the ``blanket rules'' 
does not itself prohibit any acts with respect to any future-listed 
threatened species; rather, the moment at which that occurs is when we 
list that species as a threatened species and decide either to retain 
the ``blanket rule'' protections or to promulgate a species-specific 
4(d) rule that may include some or all of the section 9 prohibitions 
instead. At that point, we continue to have an ``almost infinite number 
of options'' (H. Rep. 93-412, at 12 (1973)), including the option of 
applying the ``blanket rule,'' with regard to protecting the species 
through prohibitions and exceptions. Therefore, even if Congress did 
intend for the Service to issue species-by-species protective 
regulations, developing these ``blanket rules'' does not conflict with 
that intent. Finally, as we made clear during our rulemaking in 2019 
ending the ``blanket rule'' option for species newly listed as 
threatened species after the effective date of those regulatory 
revisions, either approach (using ``blanket rules'' or requiring 
promulgation of species-specific 4(d) rules for every species listed as 
threatened species) is consistent with the Act ([84 FR 44753 at 44754, 
August 27, 2019] (citing Sweet Home Chapter of Communities for a Great 
Oregon v. Babbitt, 1 F.3d. 1, 8 (D.C. Cir. 1993), modified on other 
grounds on reh'g, 17 F.3d 1463 (D.C. Cir. 1994), rev'd on other 
grounds, 515 U.S. 687 (1995)).
    Comment 3: Some commenters suggested that the ``blanket rules'' 
represent a default precautionary approach to protecting threatened 
species and that such a precautionary approach or using a worst-case 
scenario is contrary to Maine Lobstermen's Ass'n v. NMFS, 70 F.4th 582, 
599 (D.C. Cir. 2023) (MLA).
    Response: We note at the outset that the MLA case involved a 
different situation that does not apply here because that case arose in 
the context of section 7, not section 4, of the Act. The holding of MLA 
is limited to the conclusion that the particular biological opinion 
before the Court in that case was unlawful because in deciding

[[Page 23925]]

whether the proposed action was ``likely to jeopardize the continued 
existence of'' a listed species within the meaning of section 7, it 
applied worst-case assumptions without first analyzing whether those 
assumptions were scientifically appropriate in light of the information 
available to NMFS. The court characterized the NMFS's argument as 
insisting that legislative history required that, in order to ``give 
the benefit of the doubt to the species,'' or apply a precautionary 
principle, the Services must rely upon ``worst-case scenarios'' in the 
face of scientific uncertainty (MLA, 70 F.4th at 586, 597). The 
``blanket rules'' implement section 4 of the Act, not section 7, and as 
discussed below the bases for the ``blanket rules'' are completely 
different from the court's characterization of the bases underlying the 
biological opinion in the MLA case. We are not claiming that 
legislative history requires us to promulgate the ``blanket rules'' in 
order to ``give the benefit of the doubt to the species.'' Nor are the 
``blanket rules'' based on ``worst-case scenarios.'' Rather, we are 
promulgating the ``blanket rules'' in order to advance the efficient 
fulfillment of our responsibility under the Act to conserve threatened 
species. All threatened species, by definition, are likely to become in 
danger of extinction within the foreseeable future, and these species 
often need protections like the provisions in the ``blanket rules'' to 
recover them. In the time since the 2019 4(d) rule went into effect, 
nearly all of the species-specific 4(d) rules that the Service has 
promulgated have concluded that all of the section 9 prohibitions and 
the standard exceptions to those prohibitions provided for in the 
``blanket rules'' are necessary and advisable to provide for the 
conservation of the species. In most cases, we also included one or 
more additional exceptions to those prohibitions. (As stated earlier, 
although the second sentence of section 4(d) does not require us to 
make a ``necessary and advisable'' finding to adopt for a threatened 
species one or more of the prohibitions that apply to endangered 
species under section 9, we have chosen to determine that each 4(d) 
rule in its entirety provides the protections that are necessary and 
advisable to provide for the conservation of that species.)
    Comment 4: Several States expressed appreciation for the inclusion 
of the exceptions for States with cooperative agreements to conduct 
conservation actions. The regulatory text includes these exceptions as 
a default for all future species-specific 4(d) rules, as well as for 
any species currently or in the future protected by ``blanket rules'' 
at 50 CFR 17.31(a) and 17.71(a). Other commenters expressed concern 
about the treatment of States in reinstatement of the ``blanket 
rules.'' Commenters suggested that ``blanket rules'' ignore the 
sovereignty of the States and give short shrift to the expertise of 
States and State agencies to manage their resources effectively and 
efficiently and preferred that we only use species-specific 4(d) rules 
as they incentivize State input and give States more authority for 
management of threatened species. Several commenters stated that 
putting in place ``blanket rules'' that give threatened species the 
same protections as endangered species would interfere with the role 
that Congress intended for States to take in safeguarding species. They 
argued that giving threatened species the same protections as 
endangered species would have the effect of reducing the incentives for 
States and landowners to be proactive in improving the status of 
endangered species in an effort to reduce the severity of the 
prohibitions applicable to the species. As evidence that Congress 
intended a more active role for States, some of the commenters pointed 
to references to ``federalism'' in the legislative history.
    Response: We recognize the authorities given to States in section 6 
of the Act to conserve listed species and the partnership among the 
Service and the States in conserving federally listed species. As 
stated in our ``Revised Interagency Cooperative Policy Regarding the 
Role of State Agencies in Endangered Species Act Activities'' (81 FR 
8663, February 22, 2016), it is our practice to use the expertise of, 
and coordinate and collaborate with, State agencies in developing the 
scientific foundation upon which the Services base their determinations 
for listing actions, including 4(d) rules that specify the prohibitions 
necessary and advisable for the conservation of species listed as 
threatened. We note that the preemptive effect of the Act and 
implementing regulations in part 17 with regard to State laws for 
endangered species or threatened species is pursuant to section 6(f) of 
the Act. (See 16 U.S.C. 1535(f); the Supremacy Clause of the U.S. 
Constitution; H.J. Justin & Sons, Inc. v. Deukmejian, 702 F.2d 758, 
759-60 (9th Cir. 1983); Man Hing Ivory & Imports, Inc. v. Deukmejian, 
702 F.2d 760 (9th Cir. 1983); Cresenzi Bird Importers, Inc. v. New 
York, 658 F. Supp. 1441, 1444-46 (S.D.N.Y.), summarily aff'd, 831 F.2d 
410 (2d Cir. 1987).) In summary, by operation of the express preemption 
clause of the Act's section 6(f), and the U.S. Constitution's Supremacy 
Clause, where a species is listed as an endangered species or a 
threatened species under the Act, any State law or regulation that 
applies with respect to the importation or exportation of, or 
interstate or foreign commerce in, endangered species or threatened 
species is void to the extent that it may effectively allow or permit 
what is prohibited by the Act or implementing regulations for 
endangered species or threatened species, or prohibit what is 
authorized pursuant to an ESA exemption or implementing regulations or 
permits for endangered species or threatened species. For species under 
the jurisdiction of the Service, implementing regulations and permits 
for endangered species or threatened species are provided for in part 
17. Additionally, any State law or regulation respecting the taking of 
an endangered species or threatened species, or activities with 
unlawfully taken endangered species or threatened species, may be more 
restrictive, but not less restrictive, than Act exemptions or 
implementing regulations or permits for endangered species or 
threatened species provided for in part 17. Pursuant to section 6(f) of 
the Act, part 17 shall not otherwise be construed to void any State law 
or regulation that is intended to conserve fish or wildlife, or to 
permit or prohibit sale of fish or wildlife within the jurisdiction of 
a State.
    The exceptions included in both the ``blanket rules'' and species-
specific 4(d) rules for States to take federally listed threatened 
species in the course of carrying out conservation programs recognizes 
this authority and these partnerships. While we recognize and value the 
important role States play in conserving both endangered and threatened 
species, the Act requires that the Service issue protective regulations 
necessary and advisable for threatened species along with several other 
requirements to conserve threatened species (e.g., designating critical 
habitat, developing recovery plans, consulting with Federal agencies on 
their discretionary actions). We have concluded that reinstating the 
``blanket rules'' would neither reduce incentives on the part of States 
to undertake proactive conservation efforts nor interfere with the 
congressional approach to federalism and the States' role in 
conservation through the Act. Even with the ``blanket rules'' in place, 
State programs would still have the opportunity and the incentive to 
undertake proactive conservation for species under their jurisdiction 
to

[[Page 23926]]

improve the species' status and potentially avoid the need for the 
Service(s) to list a species or to help achieve recovery of the species 
should it be listed. In addition, the Service would consider any such 
State efforts when it decides whether to protect a species by a 
``blanket rule'' or to promulgate a species-specific 4(d) rule.
    We note that the exceptions from threatened species permitting 
requirements for certain activities by employees or agents of the 
Service and certain other Federal, State, and Tribal entities under 50 
CFR 17.31(b) and 17.71(b) do not remove the need for entities to comply 
with other laws and regulations. As with other exceptions from 
endangered or threatened species permitting requirements in 50 CFR part 
17, these limited exceptions allow for the specified otherwise 
prohibited activities under the Act to occur without a permit under 
part 17. Permitting exceptions in part 17 are only in relation to ESA 
prohibitions for endangered and threatened species and the permitting 
requirements under part 17 and should not be construed to relieve a 
person from requirements of other parts in subchapter B, or any other 
applicable laws or regulations other than as provided by section 6(f) 
as described above. We take this opportunity to note that 50 CFR 10.3 
provides that no statute or regulation of any State shall be construed 
to relieve a person from the restrictions, conditions, and requirements 
contained in subchapter B. In addition, nothing in subchapter B, nor 
any permit issued under subchapter B, shall be construed to relieve a 
person from any other requirements imposed by a statute or regulation 
of any State or of the United States, including any applicable health, 
quarantine, agricultural, or customs laws or regulations, or other 
Service enforced statutes or regulations.
    Comment 5: Several commenters stated that we did not provide enough 
justification or logical rationale for the reinstatement of the 
``blanket rules.'' For example, one commenter stated that the Service 
needs to explain how the 2019 4(d) rule was inconsistent with, or 
otherwise presented obstacles to, the policy articulated by Executive 
Order 13990. Other commenters suggested that we did not comply with the 
Administrative Procedure Act (APA). Of these, one commenter stated that 
we failed to conduct required outreach ``in conformance with the 
requirements of the Administrative Procedure Act'' including ``reaching 
out to, and consulting directly with, non-Federal sponsors of projects 
and the communities they help to protect so these rules can be 
developed cooperatively, using objective criteria and approaches.'' 
Some commenters stated that, at a minimum, the Service has not shown 
that there are good reasons for the new policy (see FCC v. Fox 
Television Stations, Inc., 556 U.S. 502, 515 (2009) (FCC v. Fox)).
    Response: We have complied fully with the APA. We published notice 
of the proposed rulemaking in the Federal Register, we provided an 
opportunity for public comment, we considered the relevant matter 
presented in those comments, and we have provided a rational 
explanation for our action. The APA does not require the specific 
outreach suggested by a commenter. In addition, as discussed elsewhere, 
while not required, we held six informational sessions for a wide 
variety of audiences and over 500 attendees participated in these 
sessions.
    In our 2019 4(d) rule (84 FR 44753-44754, August 27, 2019), we 
explained that we were ending the ``blanket rule'' option for 
application of section 9 prohibitions to species newly listed as 
threatened species after the effective date of those regulatory 
revisions because: It would make our regulatory approach for threatened 
species similar to NMFS's approach; either using ``blanket rules'' or 
promulgating species-specific rules is a reasonable approach to 
implementing the Secretary's discretion afforded under section 4(d) of 
the Act; and promulgating species-specific 4(d) rules that are tailored 
to the specific species can provide conservation benefits for 
threatened species. After several years of experience operating under 
the 2019 4(d) rule, we now find--as explained further in our preambles 
to the June 22, 2023, proposed rule (88 FR 40742 at 40743-40745) and 
this final rule--that reinstating the ``blanket rule'' option is 
preferable to requiring promulgation of species-specific 4(d) rules 
every time we list a species as a threatened species. As we recognize 
throughout this final rule, we do not discount the importance of our 
ability to promulgate species-specific 4(d) rules. However, it is 
important for us to once again have the option of applying the 
``blanket rules'' when appropriate. In summary, we have found that it 
makes sense to reinstate ``blanket rules'' that facilitate the 
application of the Act's section 9 prohibitions to threatened species 
because ``blanket rules'' allow for a more-efficient method to protect 
threatened species for which we find their protections are appropriate. 
In addition, it is more straightforward and transparent to have 
species-specific 4(d) rules in one place in the Code of Federal 
Regulations and ``blanket rule'' protections described in another, as 
we have done for 40 years. Finally, the reinstatement of the ``blanket 
rules'' also ensures there is never a lapse in threatened species 
protections. This is sufficient explanation under the Supreme Court's 
decision in FCC v. Fox (556 U.S. at 515 (``[I]t suffices that [this 
policy choice] is permissible under the statute, that there are good 
reasons for it, and that the agency believes it to be better, which the 
conscious change of course adequately indicates.'' (Emphasis in 
original))).
    Executive Order 13990 required all agencies to review agency 
actions issued between January 20, 2017, and January 20, 2021, that may 
be inconsistent with the policies it set forward. Following the 
issuance of that E.O., we undertook a review of the 2019 4(d) rule 
revoking the prior blanket rules. E.O. 13990 provided the impetus for 
the review, but the E.O. is not the legal basis of the revision. We are 
revising our regulations at 50 CFR part 17 on the basis of our legal 
authority under the Act (16 U.S.C. 1531 et seq.).
    Comment 6: Multiple commenters suggested that by reinstating 
``blanket rules'' we fail to recognize the benefits of species-specific 
4(d) rules. Several commenters also requested that we continue to 
promulgate species-specific 4(d) rules.
    Response: As stated in the preambles to the June 22, 2023, proposed 
rule (88 FR 40742 at 40745) and this final rule, we maintain in our 
regulations at 50 CFR 17.31(c) and 17.71(c) the ability to issue 
species-specific 4(d) rules. We do not deny the benefit of species-
specific 4(d) rules as we referenced in our 2019 4(d) rule. As noted 
elsewhere in this document, species-specific 4(d) rules can incentivize 
known beneficial actions for the species by removing or reducing 
regulatory burden associated with those actions and can also remove or 
reduce regulatory burden associated with permitting of otherwise 
prohibited actions or forms or amounts of ``take'' considered 
inconsequential to the conservation of the species. Species-specific 
4(d) rules should apply protections that will both prevent the species 
from becoming endangered and promote the recovery of species.
    Comment 7: A commenter suggested that the Service does not need 
``blanket rules'' because we can promulgate a species-specific 4(d) 
rule to adopt the same endangered species prohibitions.
    Response: While we can and have done what the commenter suggested, 
it is more straightforward and transparent to have species-specific 
4(d) rules in one place in the Code of Federal Regulations

[[Page 23927]]

and ``blanket rule'' protections described in another, as we had for 
the 40 years prior to September 26, 2019. Any threatened species not 
included at 50 CFR 17.40 through 17.48 (for wildlife) or 17.73 through 
17.78 (for plants) has the ``blanket rule'' protections. We will 
clearly state in proposed and final rules for each species whether 
there is a species-specific 4(d) rule or whether the species is 
protected under 50 CFR 17.31(a) (wildlife) or 17.71(a) (plants).
    Comment 8: Several commenters suggested that reinstating the 
``blanket rule'' options will further the recovery of threatened 
species. For example, one commenter suggested ``blanket rules'' provide 
more incentives for landowners and land managers to recover endangered 
species. We also received comments suggesting the opposite. For 
example, commenters suggested that ``blanket rules'' collapse the 
distinction between endangered and threatened species and diminish 
incentives for private property owners and other regulated entities to 
take actions that would result in the reclassification of a species 
from an endangered species to a threatened species. They suggest there 
would be no functional difference between an endangered species and a 
threatened species because the same protections could apply uniformly 
absent a species-specific rule.
    Response: We disagree that reinstating the ``blanket rule'' options 
for threatened species influences whether the Services and our partners 
implement actions to recover endangered species. Further, all 4(d) 
rules, whether ``blanket rules'' or species-specific rules, play a role 
in recovering threatened species, since the statute requires that 4(d) 
rules be necessary and advisable to provide for the conservation of 
threatened species. Even with the ``blanket rule'' option, there are 
incentives for certain entities to conduct conservation actions for 
endangered species because ``blanket rule'' protections for threatened 
species include additional exceptions beyond those provided in our 
regulations for endangered species. In addition, we always have the 
option of promulgating species-specific 4(d) rules for any threatened 
species whose status improves as a result of conservation actions.
    We anticipate promulgating species-specific 4(d) rules for most 
wildlife species when they are reclassified from an endangered species 
to a threatened species because we will have had many years of 
experience in determining how best to manage a species in that 
situation. Given the narrower protections for endangered and threatened 
species of plants, it may make sense in many cases for the Service to 
use ``blanket rule'' protections for plants reclassified from 
endangered species to threatened species.
    Comment 9: Commenters stated that ``blanket rules'' will impose 
burdensome costs and regulatory requirements on both the Service and 
the regulated community. They suggested that reliance on the ``blanket 
rules'' will lead to an increased need for permitting by project 
proponents, taxing both project proponents and the Service, who will 
have to process and administer additional permits, as well as 
increasing the degree to which the Service must use its resources to 
enforce the prohibitions of section 9 of the Act. They also suggested 
that reinstatement of the ``blanket rules'' will, in fact, add to the 
agency's regulatory burden with an increase in the number of entities 
applying for section 10 authorization or seeking project-by-project 
coordination on issues that could have been adequately addressed 
pursuant to a species-specific 4(d) rule.
    Response: As stated elsewhere in this document, for each threatened 
species we will either protect that species with ``blanket rule'' 
protections or a species-specific 4(d) rule depending on what is 
necessary and advisable to provide for the conservation of the species. 
For most currently listed threatened species, regardless of protections 
under ``blanket rule'' or species-specific regulations, we have 
included all of the section 9 prohibitions as well as exceptions to 
those prohibitions, such as allowing ``take'' of threatened species of 
wildlife in defense of life or other issues of human safety, for law 
enforcement activities, for aiding injured or diseased individuals or 
disposing of dead individuals, and for conservation actions conducted 
by specific entities.
    We do not envision that 4(d) rules will wholly replace the need for 
section 10 permits for most species. It is appropriate to continue to 
require recovery permits for otherwise prohibited acts in situations in 
which we must understand the qualifications and methods of the proposed 
recovery action. It is often similarly appropriate to continue to 
prohibit incidental take and issue permits under section 10(a)(1)(B) of 
the Act for take that is associated with threats that individually or 
cumulatively led to the listing of the species (or may be new threats 
to the species) so that project proponents and the Service can 
determine approaches to minimize and mitigate the impact of the take. 
Programmatic approaches are available for project proponents to reduce 
the time associated with developing permit applications such as general 
conservation plans and template habitat conservation plans. In 
addition, the Service and project proponents can reduce the need for 
such permits by developing standardized conservation measures to avoid 
the risk of ``take.''
    Comment 10: One commenter agreed with our intention to implement 
the revised regulations on a prospective basis because they suggest it 
would avoid any confusion as to the management of already listed 
species.
    Response: As discussed in the preamble of this rulemaking and to 
clarify here, reinstating the ``blanket rule'' option and other 
regulation revisions will 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 4(d) rule. Species that were protected under 
prior versions of the ``blanket rules'' or under species-specific 4(d) 
rules that refer to any of the sections we are revising will receive 
the updated protections for any actions occurring after the effective 
date of this rule (see DATES, above). Applying the revised prohibitions 
and exceptions makes only two substantive changes to the protections 
for those previously listed threatened species. First, we have added 
federally recognized Tribes to the entities authorized to aid, salvage, 
or dispose of threatened species. Second, as a result of updating our 
endangered plant regulations at 50 CFR 17.61(c)(1) to match amendments 
to the Act that Congress enacted in 1988, threatened plants protected 
under the previous ``blanket rule'' are now protected from being 
maliciously damaged or destroyed on areas under Federal jurisdiction, 
or being removed, cut, dug up, or damaged or destroyed 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. The 
remaining changes are minor wording revisions or clarifications.
    Comment 11: Several commenters suggested that we reevaluate current 
protections for threatened species (species currently protected under 
``blanket rules'' or species-specific 4(d) rules).
    Response: Although we have the discretion to revise protections for 
threatened species at any time, evaluating or reevaluating the 
protections for particular species is outside the scope of this 
rulemaking. Every species that is listed as a threatened species under 
the Service's

[[Page 23928]]

jurisdiction is currently benefitting from protective provisions in a 
4(d) rule. Species that were listed after the effective date of the 
2019 4(d) rule (September 26, 2019) are all protected by species-
specific 4(d) rules; species that were listed before the effective date 
of the 2019 4(d) rule are, and will continue to be, protected either by 
the ``blanket rule'' protections or by a species-specific 4(d) rule. 
For species that are currently protected by species-specific 4(d) 
rules, reinstating the ``blanket rules'' will have no effect because 
the species will continue to be protected by the previously promulgated 
species-specific 4(d) rules. In addition, as discussed elsewhere in 
this document, for species that are currently protected by the prior 
``blanket rules,'' these ``blanket rules'' make only two substantive 
changes: (1) adding federally recognized Tribes to the entities 
authorized to aid, salvage, or dispose of threatened species; and (2) 
updating the protections for threatened plants. Therefore, there is 
nothing in these narrow changes that requires us to reevaluate current 
protections for already listed threatened species. In the future, we 
may still determine that it is appropriate to reevaluate the protective 
4(d) regulations for particular threatened species.
    Comment 12: Several commenters stated that species-specific 4(d) 
rules streamline the Act's section 7 consultation process for future 
Federal actions. They find that species-specific 4(d) rules help 
identify specific actions or activities that may be undertaken without 
impairing the listed species' conservation and protection, allowing 
project proponents to tailor their activities to avoid excessive or 
unnecessary take based on the contents of the species-specific 4(d) 
rule.
    Response: Regardless of whether a threatened species is protected 
via ``blanket rule'' protections or a species-specific 4(d) rule, 
responsibilities under section 7 of the Act for Federal agencies to 
consult with the Services for actions that ``may affect'' a federally 
listed species or designated critical habitat apply. In the future, we 
will continue to develop species-specific 4(d) rules for many 
threatened species, and for others we will use ``blanket rule'' 
protections. With or without species-specific 4(d) rules, there are 
mechanisms to streamline section 7 consultations, including 
programmatic consultations and developing standardized conservation 
measures.
    Comment 13: Several commenters suggested a blanket 4(d) rule has 
the potential to discourage species conservation efforts abroad. For 
example, a commenter noted zoos holding such species may be required to 
obtain new or additional permits from the Service to authorize import, 
export, and other otherwise-prohibited activities, which would incur 
time and permitting fees for applicants and processing time and costs 
for the Service. Another commenter asserted that establishing blanket 
prohibitions on trade would remove any incentive to develop captive-
breeding programs and have a disastrous effect on wild populations of a 
listed species. Some comments related to discouraging conservation 
efforts resulting from well-managed hunting of foreign species listed 
under the Act. They asserted that a blanket 4(d) rule could impair or 
eliminate the ability of American hunters to import legally harvested 
hunting specimens of threatened species acquired abroad. In their view, 
such restrictions would negatively impact foreign wildlife management 
agencies that rely on hunting revenue for significant portions of their 
budgets. They additionally asserted that establishing protections under 
a ``blanket rule'' may undermine conservation efforts for foreign 
species taken under the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES).
    Response: The purpose of CITES is to regulate international trade 
in plants and animals to ensure such trade is legal and does not 
threaten the survival of species in the wild. In determining the status 
of a species under the Act or the protective regulations that it needs, 
we take into consideration any protection provided by other laws, such 
as CITES. However, simply being protected by these other laws does not 
preclude the need to list a species under the Act if it meets the Act's 
definition of an endangered or threatened species. Additional 
conservation measures are provided to species listed as endangered or 
threatened under the Act, including recognition, requirements for 
Federal protection, and prohibitions against certain activities with 
the species. Recognition through listing results in public awareness 
and may encourage and result in conservation actions by foreign 
governments; Tribal entities; Federal, State, and local agencies; 
private agencies and interest groups; and individuals. For example, 
listing a species under the Act can support the conservation efforts 
undertaken for the species in its range, including research efforts to 
address conservation needs and funding and other assistance to foreign 
countries to provide for the conservation of endangered species and 
threatened species. Listing under the Act can also help ensure that the 
United States and its citizens do not contribute to the further decline 
of the listed species through resulting Federal protections and 
prohibitions on certain activities such as import, export, take, 
interstate commerce, and foreign commerce. For instance, adding a 
violation under the Act on top of a CITES violation could serve as an 
additional disincentive for any illegal trade in the species.
    We acknowledge that in well-managed circumstances some captive-
breeding activities can contribute to the conservation of endangered or 
threatened species in the wild if, for example, they are part of a 
genetically managed conservation breeding program producing animals 
that could be used for reintroductions. We also acknowledge that well-
managed trophy hunting can generate funds to be used for conservation, 
including for habitat protection, population monitoring, wildlife 
management programs, mitigation efforts for human-wildlife conflict, 
and law enforcement efforts. Persons seeking to engage in otherwise 
prohibited activities with threatened wildlife for scientific purposes 
or to enhance the propagation or survival of these species may still 
seek authorization from the Service through threatened species permits 
(see 50 CFR 17.32) or captive wildlife registration (see 50 CFR 
17.21(g)) as applicable.
    Comment 14: Operation of the ``blanket rule'' impairs conservation 
of threatened species hunted abroad, when the import of a hunting 
trophy would otherwise not require an import permit under the existing 
import exemption for threatened species (CITES Appendix-II wildlife at 
50 CFR 17.8) and when a threatened species is not listed under CITES.
    Response: Nothing in this rulemaking affects the operation of 50 
CFR 17.8. The only changes to 50 CFR 17.8 we are finalizing are 
technical corrections, as proposed, that would merely update the 
terminology ``special rule'' to ``species-specific rule'' for 
consistency with similar corrections we are making in other sections of 
part 17. As a result, section 9(c)(2) of the Act and our implementing 
regulations at 50 CFR 17.8 continue to provide the limited exception to 
the Sec.  17.31 prohibition against the importation of threatened 
wildlife for species that are also included in CITES Appendix-II 
(provided that the other requirements of 50 CFR 17.8(b) are met).
    However, as is always the case, the exception at 50 CFR 17.8 to the

[[Page 23929]]

prohibition on importation in the ``blanket rule'' does not apply to 
threatened wildlife subject to a species-specific 4(d) rule (see 50 CFR 
17.8(b)). Therefore, if we issue a species-specific 4(d) rule for a 
particular species, all of the prohibitions and exceptions for that 
species are contained in the species-specific rule, and the presumption 
that otherwise qualifying imports do not require a threatened-species 
permit is rebutted. If the species-specific 4(d) rule prohibits import 
and does not contain an applicable exception, any would-be importer of 
that species would be required to obtain an authorization or permit 
under the Act prior to import (see Safari Club Int'l v. Zinke, 878 F.3d 
316, 328-29 (D.C. Cir. 2017); see also Safari Club Int'l v. Babbitt, 
No. MO-93-CA-001, 1993 U.S. Dist. LEXIS 21795, 1993 WL 13932673 (W.D. 
Tex. Aug. 12, 1993)). As the D.C. Circuit held in Safari Club, 
``[s]ection 9(c)(2) in no way constrains the Service's section 4(d) 
authority to condition the importation of threatened Appendix II 
species on an affirmative enhancement finding. Under section 4(d) of 
the Act, the Service `shall issue such regulations as [it] deems 
necessary and advisable to provide for the conservation of [threatened] 
species' and may `prohibit with respect to any threatened species any 
act prohibited . . . with respect to endangered species,' see 16 U.S.C. 
1533(d). Because the Service may generally bar imports of endangered 
species, see id. [section] 1538(a)(1)(A), it may do the same with 
respect to threatened species under section 4(d), see id. [section] 
1533(d).'' The D.C. Circuit went on to explain that ``promulgation of a 
blanket ban would be permissible and rebut the presumptive legality of 
elephant imports. If the Service has the authority to completely ban 
imports of African elephants by regulation under section 4(d), it 
logically follows that it has authority to allow imports subject to 
reasonable conditions, as provided in the [species-specific 4(d) rule 
for African elephants].''
    In other words, if a species-specific 4(d) rule prohibits import, 
then the limited exception at 50 CFR 17.8 to the requirement for import 
permits does not apply to the species, and an import permit is required 
unless the species-specific 4(d) rule provides a separate exception. 
The limited exception to the requirement for import permits also does 
not apply if the threatened wildlife is not listed under CITES or is 
listed under CITES Appendix I. These issues are further explained in 
the 2006 proposed rule and 2007 final rule promulgating 50 CFR 17.8 
(see 71 FR 20168 at 20170-20171, April 19, 2006 (``[I]t is important to 
note that if a threatened species . . . has a special rule, proposed 
section 17.8 does not apply; the provisions of the special rule 
apply.''); and 72 FR 48402 at 48404-48405, August 23, 2007 (``This 
exemption does not apply to species that have a special rule in 50 CFR 
part 17.'')).
    The application of the ``blanket rule'' to a species of threatened 
wildlife, on the other hand, does not affect the operation of 50 CFR 
17.8 for qualifying imports. When applied to a threatened species, the 
``blanket rule'' includes a prohibition on import under 50 CFR 17.31 
unless a threatened species import permit is issued under 50 CFR 17.32. 
An exemption to the threatened species import permit requirement of the 
``blanket rule'' is granted under the limited circumstances provided at 
50 CFR 17.8 for qualifying imports of CITES Appendix-II wildlife. 
Accordingly, for threatened species of wildlife protected by the 
``blanket rule'' that are also included in Appendix II of CITES, the 
limited 50 CFR 17.8 exemption to the requirement to obtain import 
permits for threatened species applies to specimens that meet all the 
requirements of 50 CFR 17.8(b).
    Comment 15: Several commenters requested that the Service include 
additional exceptions or requirements applicable to either the 
``blanket rules'' or all future species-specific 4(d) rules. Examples 
of exceptions include exceptions for anyone conducting maintenance of 
existing infrastructure or conducting conservation-related efforts or 
aiding or salvaging threatened species. We also received requests to 
include exceptions for specific entities conducting conservation 
efforts or aiding or salvaging threatened species.
    Some commenters recommended that we require States or Federal land 
managers to submit proposals before being allowed to use the current 
exception to take an individual member of a listed species that poses a 
demonstrable but non-immediate threat to human safety. Other commenters 
suggested that we revise regulations to require that: (1) 4(d) rules 
act as a recovery roadmap with triggers to reduce regulation over time; 
(2) species-specific 4(d) rules provide a ``net conservation benefit'' 
to the species; (3) species-specific 4(d) rules require mitigation 
associated with excepted actions or take; and (4) the Service commits 
to reevaluate 4(d) rules when we complete a recovery plan.
    Response: We appreciate these additional suggestions and decline to 
include any additional exceptions or requirements that would apply to 
all future threatened species. However, it may be appropriate to 
include some of the suggested exceptions in species-specific 4(d) 
rules, and we can evaluate that possibility for specific species in the 
future based on the facts and circumstances for those species. 
Regarding the ``net conservation benefit'' standard, we already have a 
standard under the Act, and that is to craft regulations that are 
necessary and advisable for the conservation of the species. Regarding 
the suggestion to require mitigation within all 4(d) rules for any 
excepted activities or take, we disagree that this is appropriate to 
require this either for the ``blanket rules'' or for future species-
specific rules. As discussed elsewhere in this document, we include 
several exceptions to otherwise prohibited take in our ``blanket 
rules.'' These include exceptions for allowing take in defense of life 
or other issues of human safety, for law enforcement activities, for 
aiding injured or diseased individuals or disposing of dead 
individuals, and for conservation actions conducted by specific 
entities, and none of these require mitigation. In addition, in our 
species-specific rules, we include exceptions that should help 
incentivize beneficial actions for the species by removing or reducing 
regulatory burden associated with those actions; we can also remove or 
reduce regulatory burden associated with permitting of otherwise 
prohibited actions or forms or amounts of ``take'' considered 
inconsequential to the conservation of the species. Because the take 
associated with the activities in the exceptions is either beneficial 
or de minimis, requiring mitigation for these exceptions is 
unnecessary. Finally, the Service can revisit protections for 
threatened species at any time, including after completion or revision 
of a recovery plan.
    Comment 16: Several commenters expressed concern that we intend to 
apply ``blanket rules'' to experimental populations listed as 
threatened species under section 10(j) of the Act.
    Response: In the preamble of the June 22, 2023, proposed rule (88 
FR 40742 at 40747), we stated that, pursuant to 50 CFR 17.81, 
experimental populations are designated through population-specific 
regulations found in Sec. Sec.  17.84 through 17.86, and under our 
existing practice, each population-specific regulation contains all of 
the applicable prohibitions, along with any exceptions to prohibitions, 
for that experimental population. Further, our regulations at 50 CFR 
17.81(f) state that any population of an endangered species or a 
threatened species determined by the

[[Page 23930]]

Secretary to be an experimental population in accordance with subpart H 
of part 17 will be identified by a species-specific 4(d) rule in 
Sec. Sec.  17.84 and 17.85 as appropriate and separately listed in 
Sec.  17.11(h) (wildlife) or Sec.  17.12(h) (plants) as appropriate. 
Per those regulations, all experimental populations will have species-
specific 4(d) rules.

Plants

    Comment 17: Several commenters supported our proposal to update 
regulations for endangered plants to include making it unlawful to 
maliciously damage or destroy the species on any area under Federal 
jurisdiction; 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. Another commenter thought the proposed wording would expand and 
clarify the actions currently in Sec.  17.61(c) that are prohibited 
without a permit, better comply with the Act (as amended), better 
implement Congress's intent, and provide greater conservation benefit 
to endangered plants. In contrast, several other commenters opposed 
this proposed change because they stated the Act does not allow for the 
new language. They stated that the plain language of the definition of 
``take'' does not apply to either an endangered plant or a threatened 
plant, yet the proposed rule seemingly intends to sanction an apparent 
``take'' of such species in direct contradiction to the Act, and that 
the Service should not promulgate a rule inconsistent with the plain 
language of the applicable statute.
    Response: The intent of revising this portion of the regulations is 
to bring the regulatory protections afforded to endangered plants in 
alignment with the protections already provided by section 9(a)(2)(B) 
of the Act (16 U.S.C. 1538(a)(2)(B)). The Act does not contain a 
prohibition against ``take'' of endangered plants in section 9(a)(2) 
that is equal to its prohibition against take of endangered fish and 
wildlife in section 9(a)(1)(B) and (C). However, with respect to 
endangered plants, the 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 (October 7, 1988)) included additional text in section 9(a)(2)(B) 
making it unlawful to maliciously damage or destroy the endangered 
plant species on any area under Federal jurisdiction; 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. In this final rule, we add 
this same text to our regulations at Sec.  17.61(c). To clarify our 
intent, in the preamble of this final rule, we emphasize that this 
particular revision merely brings our regulations into alignment with 
the Act.
    Comment 18: Some commenters stated that the following proposed 
language in 50 CFR 17.61(c) and 17.71(b) is confusing: ``may, when 
acting in the course of official duties, remove and reduce to 
possession from areas under Federal jurisdiction those species.''
    Response: We note that the referenced language at 50 CFR 
17.61(c)(2) and 17.71(b)(3) is slightly different than the language 
quoted by the commenter but matches the language currently in the Code 
of Federal Regulations at 50 CFR 17.61(c)(2) and our regulation 
revisions do not change that language. We are revising our regulations 
to include the same language at 50 CFR 17.71(b)(3). We regret that the 
noted language is confusing to commenters, but this text comes directly 
from the 1988 amendments to the Act (Pub. L. 100-478 (October 7, 
1988)), and by including it in our regulations, we align our 
regulations with the Act. The exception allows for specified entities 
to remove (from areas under Federal jurisdiction) and reduce to 
possession endangered or threatened species of plants without the need 
for a permit under the Act.
    Comment 19: Many commenters supported updating protections for 
plants listed as threatened species. However, other commenters opposed 
the updates because they believed that existing regulations adequately 
protect threatened species of plants and stated that the revisions may 
create confusion regarding compliance by creating a risk of enforcement 
where none existed before.
    Response: In the past, the public has expressed confusion about 
what statutory and regulatory protections apply to threatened species 
of plants. The plain language of section 4(d) of the Act indicates that 
the Secretary may by regulation prohibit acts to threatened species of 
plants similar to those prohibited for endangered plants under section 
9(a)(2). As discussed in the preamble of this document, we have 
concluded that providing an option to apply those prohibitions to 
threatened species of plants is necessary and advisable unless we 
promulgate a species-specific 4(d) rule for that species. As for 
wildlife species, having consistent prohibitions for plant species 
should reduce confusion regarding compliance.
    Comment 20: Some commenters were concerned about the insertion of 
the text ``knowing violation of any law or regulation of any State or 
in the course of any violation of a State criminal trespass law'' at 50 
CFR 17.61(c). The commenters noted that the proposed rule does not 
identify or give an example as to what ``any law or regulation of any 
State'' may be; and assuming any such law or regulation exists in a 
State, the proposed revisions do not exempt a well-meaning person 
unaware of the presence of listed species. The commenters stated it is 
not reasonable to label an inadvertent removal, cutting, digging up, 
damage, or destruction of a species as a violation, and that innocent, 
inadvertent behavior should not be subject to sanction.
    Response: As noted elsewhere in this document, the intent of 
revising this portion of the regulations is to bring the regulatory 
language into alignment with section 9(a)(2)(B) of the Act (16 U.S.C. 
1538(a)(2)(B)). These protections for endangered plants have been in 
place since the 1988 amendments to the Act, and they do not prohibit 
``inadvertent'' impacts from well-meaning people; they only prohibit 
acts that someone commits ``in knowing violation'' of the law.
    With regards to the request for an example of a State law that may 
be applicable, one example would be a law that prohibits impacts to a 
State-listed plant species that is also federally listed. For example, 
Oregon Revised Statute (ORS) 564.120, titled ``Transactions in 
threatened or endangered species; restrictions; prohibition,'' is under 
the section of State law titled ``Threatened or Endangered Plants,'' 
and it reads in part that ``Except as otherwise provided pursuant to 
ORS 564.105, no person shall take, import, export, transport, purchase 
or sell, or attempt to take, import, export, transport, purchase or 
sell any threatened species or endangered species.''
    Comment 21: Many commenters suggest that we will not determine 
whether the ``blanket rule'' is appropriate for a given species at the 
time of listing but simply default to blanket protections. Several 
commenters were concerned that we will rarely use species-specific 4(d) 
rules if we have the ``blanket rule'' option in place. Commenters 
suggested that because the ``blanket rule'' adopts a ``one size fits 
all'' approach for all threatened species, this approach creates 
additional burdens for the regulated public. Other commenters stated 
that for newly listed threatened species, we should clearly

[[Page 23931]]

indicate whether the ``blanket rule'' or a species-specific 4(d) rule 
will apply.
    Response: For every threatened species, when we list that species, 
we will determine what protections are appropriate. We also intend to 
clearly state what protections apply for a listed species in each 
proposed and final listing rule.
    For threatened species of plants, we expect that we may use 
``blanket rules'' frequently because the prohibitions for plants under 
the Act are narrower than those for wildlife, likely resulting in fewer 
options for exceptions to those prohibitions. However, for wildlife 
species, we expect to continue to routinely use both species-specific 
4(d) rules and the ``blanket rule.'' Finalizing these regulations will 
allow us the flexibility to apply the appropriate protective 
regulations in the most efficient manner based on the best available 
scientific and commercial information.
    Comment 22: Several commenters suggest that when using the 
``blanket rule'' protections, threatened species will be treated the 
same as endangered species, resulting in overregulation.
    Response: The Act's section 9 prohibitions that apply to an 
endangered species will also apply to a threatened species when we use 
the blanket rule. As discussed above, our endangered species 
regulations also include a suite of exceptions, which allow for various 
entities to conduct otherwise prohibited acts without a permit under 
the Act (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 endangered species). Protections for 
threatened species under the ``blanket rules'' also include these 
standard exceptions; however, because threatened species are not in 
danger of extinction but are likely to become so within the foreseeable 
future, we provide additional flexibility for managing threatened 
species. At 50 CFR 17.31(b) and 17.71(b), we include for threatened 
species exceptions that are more numerous or broader than those for 
endangered species. These include additional exceptions for the Service 
and NMFS to conduct otherwise prohibited acts without a permit under 
the Act associated with carrying out conservation actions and broader 
exceptions for agents or employees of State conservation agencies 
operating a conservation program in accordance with section 6(c) of the 
Act to conduct otherwise prohibited acts without a permit under the 
Act. Therefore, we are not treating threatened species the same as 
endangered species, and the ``blanket rule'' does not result in 
overregulation.
    Comment 23: Several commenters suggest that we continue with (or 
commit to) issuing species-specific 4(d) rules concurrently with 
threatened species listings, as doing so would ease the Service's 
administrative burden by ensuring the Service only has to receive and 
respond to one round of public comments and finalize one rulemaking as 
opposed to two.
    Response: When we determine that species-specific 4(d) rules are 
appropriate, we intend to finalize those species-specific 4(d) rules 
concurrently with final listing rules. We agree this approach is the 
most efficient. Similarly, when we do not promulgate a species-specific 
4(d) rule, and thereby provide for the conservation of the species 
through the blanket rule, those protections too will occur concurrently 
with the final listing rule.
    Comment 24: Some commenters expressed concern that reinstating the 
``blanket rules'' will result in inconsistency between the Service and 
NMFS, creating unnecessary confusion for the regulated community and 
the public about how the Act's section 4(d) is implemented. At least 
one commenter suggested that species with overlapping jurisdiction 
would result in unintended consequences that could negatively affect 
the species.
    Response: As discussed in the preamble to the June 22, 2023, 
proposed rule (88 FR 40742 at 40745), we recognize that reinstating the 
``blanket rules'' will again result in different approaches to 
protecting threatened species under the Act. NMFS does not have 
``blanket rules'' for threatened species; therefore, NMFS approaches 
each species on a case-by-case basis based on the discretion afforded 
under section 4(d) and promulgates species-specific 4(d) rules at 50 
CFR part 223. The Service will continue to maintain the option to 
promulgate species-specific 4(d) rules and will determine the 
appropriate protections for each species at the time of listing. Given 
that our agencies applied these different approaches for more than 40 
years beginning early in the administration of the Act, 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 from reverting 
to these differing approaches. Further, we have few species with 
overlapping jurisdiction to cause such potential confusion.

Exceptions for Federally Recognized Tribes

    Comment 25: Commenters requested including Tribes in the exception 
to aid or salvage endangered species at 50 CFR 17.21(c)(3) and 
17.61(c)(2).
    Response: The Act provides no authority to extend existing 
exceptions for endangered species to additional entities not listed in 
the statute.
    Comment 26: Many commenters supported the proposal to add federally 
recognized Tribes to the list of entities that are excepted from the 
take prohibition for aiding a sick, injured, or orphaned specimen or 
disposing/salvaging of a dead specimen of a threatened species. Several 
commenters said this change was a recognition that Tribes are 
independent governmental sovereigns with inherent powers to make and 
enforce laws, administer justice, and manage and control their natural 
resources, similar to States, and that adding them to this exception 
recognizes their sovereignty and the government-to-government 
relationship with Tribes. A commenter stated that Tribal wildlife 
managers need clear authority under the Act to take these actions 
without having to first get a permit. The commenter noted that Tribal 
land includes remote locations, some without Service or State offices; 
as a result, finding someone to get to the scene in a timely manner to 
euthanize a suffering animal can be very difficult. They add that in 
some locations, even waiting for a reply from Service law enforcement 
can sometimes take hours, a long time in a suffering animal's life; 
therefore, giving Tribes the ability to make these on-the-ground 
decisions is a good step forward. Another commenter said that, while 
they anticipated ``take'' under these permissions would be nominal and 
not negatively impact the overall population or health of a species, 
any new permissions should not extend beyond what is already granted to 
Federal and State agencies.
    Response: This revision to the threatened species regulations is in 
recognition of the sovereignty of Tribes and 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 a permit. 
Consistent with various Executive orders, Secretary's orders, and 
memoranda, and in recognition of the governmental authority of Tribes 
and their expertise in managing natural resources on Tribal lands, we 
are now

[[Page 23932]]

extending this exception to Tribes to the same extent and in the same 
manner that it is given to the Service, NMFS, Federal land management 
agencies, and State conservation agencies. We agree that time is of the 
essence in aiding or salvaging threatened species and that this 
revision will give Tribes the ability to make on-the-ground decisions 
regarding threatened species in remote areas of their lands. This will 
have a beneficial impact on the conservation of threatened species 
without any negative impact on their health. We, therefore, find that 
extending this exception is necessary and advisable to provide for the 
conservation of the species.
    Comment 27: Several commenters suggested that the Service should 
conduct thorough and meaningful consultation with federally recognized 
Tribes on how adding the exception to take for aiding or salvaging 
threatened species affects them and should continue to engage Tribes 
about how best to craft these regulations. Another commenter 
recommended requiring a cooperative agreement for Tribes to aid or 
salvage threatened species.
    Response: 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 Tribes do not bear a disproportionate burden 
for the conservation of listed species (DOI Secretary's Order 3206 
(June 5, 1997)). Additionally, the commitments described in recent 
Executive orders and memoranda (including Tribal Consultation and 
Strengthening Nation-to-Nation Relationships (86 FR 7491; January 29, 
2021), Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government (86 FR 7009; January 25, 2021), and 
Advancing Equity, Justice, and Opportunity for Asian Americans, Native 
Hawaiians, and Pacific Islanders (86 FR 29675; June 3, 2021)) 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. In light of the unique 
relationship between Tribes and the United States, we will continue to 
engage in meaningful government-to-government consultation with Tribes 
on the conservation of listed species. We are extending this exception 
to Tribes because Tribes have the authority and expertise to manage 
natural resources on their own lands, and we do not see it as 
appropriate to require them to obtain a permit or to develop a 
cooperative agreement with the Service for aiding injured or diseased 
threatened species of wildlife or plants or dispose of dead 
individuals.
    Comment 28: We received comments supporting and opposing extending 
to Tribes the exception to take of threatened species for conservation 
activities. As with the exception for aiding an ailing specimen or 
disposing or salvaging of a dead specimen, many commenters thought that 
the proposed change recognized the sovereignty of Tribes, their 
extensive wildlife expertise and experience, and the importance of 
bringing Indigenous Knowledge to species conservation. Commenters noted 
the Service has the authority to modify, renew, or terminate a 
cooperative agreement with the States and that applying this same 
mechanism to federally recognized Tribes would be consistent with 
current implementation practices of the Act. One commenter stated that, 
while anticipated ``take'' under these permissions should be nominal 
and not negatively impact the overall population or health of a 
species, any new permissions should not extend beyond what is already 
granted to Federal and State agencies. Many commenters stated that the 
Service should work closely with Tribes to define an appropriate 
mechanism and agreement for this change. Other commenters questioned 
whether the Act applies to Tribal lands and whether this exception was 
needed given that Tribes are sovereign entities. One commenter added 
that many Tribes have species and habitat protections and restrictions 
codified into their laws and regulations that are enforced by other 
divisions or departments of the Tribe or by the Tribe itself. One 
commenter noted that the exception would merely trade out one 
requirement (obtaining a take permit with Service permission) with 
another (obtaining a cooperative agreement with Service permission) and 
that the Service should be making it easier for Tribes to undertake 
conservation activities, not harder. Another commenter stated that the 
requirement that a cooperative agreement must be initiated, negotiated, 
and signed conflicts with the sovereign nature of federally recognized 
Tribes and their jurisdiction and authority to manage their own on-
reservation resources, including federally listed species.
    Response: In light of comments received and further consideration, 
we are not at this time moving forward with an additional provision 
excepting from the prohibitions any take by federally recognized Tribes 
in the course of conducting conservation activities. Instead, we intend 
to take the time to coordinate and collaborate with Tribes to craft 
language that best meets their needs. As stated elsewhere in this 
document, we are finalizing this rule as we proposed, including 
authorizing federally recognized Tribes to aid or salvage threatened 
species without a permit under the Act.
    Comment 29: A commenter expressed concern about our reference to 
Indigenous Knowledge in the preamble of the June 22, 2023, proposed 
rule and suggested that this directly and illegally conflicts with the 
unambiguous language of section 4(b)(1)(A) of the Act, which states 
that the Secretary shall make determinations required by section 
4(a)(1) of the Act solely on the basis of the best scientific and 
commercial data available after conducting a review of the status of 
the species and after taking into account those efforts, if any, being 
made by any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by predator 
control, protection of habitat and food supply, or other conservation 
practices, within any area under its jurisdiction, or on the high seas. 
They also stated that the Secretary has no legal or constitutional 
authority to revise the Act and implement such revisions through 
regulations.
    Response: We disagree that consideration of Indigenous Knowledge 
conflicts with section 4(b)(1)(A) of the Act. The statute does not 
define the phrase ``best scientific and commercial data available'' in 
section 4(a)(1), and this regulation merely applies the Act rather than 
revising it in any way. We undertake this rulemaking in accordance with 
the delegated authority to the Service to implement the Act, and this 
rulemaking falls within the broad discretion that section 4(d) of the 
Act provides the Secretary to put into place protections deemed 
necessary and advisable for the conservation of threatened species. We 
provide references to multiple memoranda, Executive orders, and 
Secretarial orders in the preamble to the June 22, 2023, proposed rule 
(88 FR 40742 at 40746) that describe the rationale for our inclusion of 
federally recognized Tribes as entities authorized to aid or salvage 
threatened species. Further, under the White House Council on 
Environmental Quality and the White House Office of Science and 
Technology Policy Guidance for Federal Departments and Agencies on 
Indigenous Knowledge (November 30, 2022), Indigenous Knowledge is a 
valid form of evidence for inclusion in Federal policy, research, and 
decision making, including decision making under the Act.

[[Page 23933]]

    Comment 30: A commenter said that along with extending certain 
section 4(d) exceptions or other opportunities to federally recognized 
Tribes, the Service must explicitly recognize, and commit to fulfill, 
its obligations to conduct regular, meaningful, and robust consultation 
with Alaska Native Corporations (ANCs) and, in consultation with ANCs, 
it should consider whether it would be appropriate to extend to ANCs 
the exceptions that it is considering providing to federally recognized 
Tribes.
    Response: 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 Peoples, 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; January 29, 
2021); Executive Order 13985: Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government (86 FR 7009; 
January 25, 2021); Executive Order 14031: Advancing Equity, Justice, 
and Opportunity for Asian Americans, Native Hawaiians, and Pacific 
Islanders (86 FR 29675; June 3, 2021); the Memorandum on Indigenous 
Traditional Ecological Knowledge and Federal Decision Making (November 
15, 2021); and the Memorandum on Uniform Standards for Tribal 
Consultation (87 FR 74479; December 5, 2022). 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. Our obligation to have a government-to-
government relationship with federally recognized Tribes is paramount 
and, in addition to Executive orders and policies on the government-to-
government relationship, is covered by Secretaries' Orders (S.O.) 3206 
and 3225. While S.O. 3225 discusses ``Alaska Natives'' and ``other 
Native organizations,'' its purpose is to protect subsistence rights 
and ways of life, and states that the Departments of Commerce and the 
Interior will seek to enter into cooperative agreements for the 
conservation of specific species, such as marine mammals and migratory 
birds, and the co-management of subsistence uses with these 
organizations.
    In the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, 
Div. H, sec. 161), Congress required that the Director of the Office of 
Management and Budget (and, subsequently, all Federal agencies) consult 
with Alaska Native Corporations on the same basis as Indian Tribes 
under Executive Order 13175. Consistent with this obligation, the 
Service will consult on Federal decisions that have a substantial, 
direct effect on an ANC. This obligation to consult does not extend 
beyond the E.O. 13175 context. Extending protections to specific 
employees of Federal, State, and Tribal governments who are designated 
to handle threatened species for the stated purposes is within the 
Service's authority, but the fact that E.O. 13175 states that we must 
consult with ANCs does not mean that it is appropriate to extend the 
same protections to employees of for-profit corporations. If this is a 
service that an ANC wants their employees to provide to rural 
communities, then the Service can assist them with the process to be 
granted a permit to do so.

Required Determinations

    Comment 31: Several commenters requested, and asserted reasons for, 
additional economic analyses for this rulemaking. One commenter 
suggested that the Service must undertake a detailed economic analysis 
under Executive Order (E.O.) 12866 and related E.O.s because the 
Service characterized the rulemaking as a ``significant regulatory 
action,'' and that we must include an economic analysis as specified in 
Office of Management and Budget (OMB) Circular A-4. Other commenters 
suggested that the requirement in section 4(d) of the Act for the 
Service to issue protective regulations that are ``necessary and 
advisable'' for the species' conservation means that the Service is 
required to undertake an economic analysis or cost/benefit analysis 
pursuant to the Supreme Court's decision in Michigan v. Environmental 
Protection Agency (Michigan v. EPA), 576 U.S. 743, 769 (2015).
    Commenters also offered ways in which the Service could undertake 
such an analysis for this rulemaking. One such commenter stated the 
Service has experienced periods of time both with and without a 
``blanket rule'' and could analyze the differences between those 
periods to estimate how reauthorizing the ``blanket rules'' would 
affect the Service's implementation of section 4(d), the costs it 
imposes on States and private landowners, and the likelihood that 
species recover. Another commenter stated that the Service had studied 
the resource impacts of switching to species-specific ``take'' 
prohibitions as part of our 2019 4(d) rule, including using data on 
resource burdens from the Service's previous species-specific 4(d) 
rules to estimate the potential increased resource burden associated 
with a switch from a ``blanket rule'' approach to an approach tailored 
to specific species; these commenters suggested that we could undertake 
a similar study for these regulations.
    Response: After considering the authorities that commenters cite as 
requiring the Service to undertake a detailed economic analysis for 
this rulemaking, we have concluded that none of them establishes such a 
requirement. First, OMB did designate the June 22, 2023, proposed rule 
(88 FR 40742) as ``significant'' pursuant to section 3(f) of E.O. 12866 
but did not characterize the rulemaking specifically as significant 
under section 3(f)(1). Therefore, we are not required to provide a 
detailed economic analysis of the costs and benefits of the rule. See 
E.O. 12866 sec. 6(a)(3)(B), (C).
    We retain the conviction that--to ensure we can defend listing 
decisions by demonstrating, as Congress has required, that we make the 
decisions ``solely on the basis of the best scientific and commercial 
data available''--we must maintain separation between listing decisions 
and any information not related to whether the species meets the 
definition of an endangered or a threatened species. To maintain this 
separation, the Service does not compile or describe the costs or 
benefits of 4(d) rules that are promulgated concurrently with listing 
the species.
    With respect to the ``necessary and advisable'' language in section 
4(d), we have concluded that the phrase does not create a de facto 
requirement for the Service to analyze the costs and benefits of all 
4(d) rules. First, as we discuss in the Necessary and Advisable 
Determination section, the Service has not interpreted the ``necessary 
and advisable'' phrase to apply to the ``blanket rules'' because it 
does not apply to regulations that extend section 9 prohibitions to 
threatened species. Second, as we explain in the following paragraphs 
below about the Michigan v. EPA decision, the standard that the Act 
sets out for evaluating ``necessary and advisable''--that the 
protective regulations must be necessary and advisable to provide for 
the conservation of the species--does not incorporate any requirement 
to

[[Page 23934]]

undertake an economic analysis or other cost/benefit analysis.
    We have analyzed the Supreme Court decision in Michigan v. EPA and 
have concluded that it does not require the Service to consider the 
costs of reinstating the ``blanket rules'' because the Court's ruling 
there was specific to the statutory language at issue in that case, and 
section 4(d) of the Act lacks the statutory attributes that were 
pivotal to the Court's decision. In Michigan v. EPA, the Supreme Court 
interpreted a provision of the Clean Air Act (CAA) that ``directs the 
[EPA] to regulate power plants if it `finds such regulation is 
appropriate and necessary.' '' 576 U.S. at 751 (quoting 42 U.S.C. 
7412(n)(1)(A)). The Court disapproved of EPA's interpretation that, 
under that statute, cost was irrelevant, and held that EPA ``must 
consider cost . . . before deciding whether regulation is appropriate 
and necessary.'' Id. at 759. Although commenters assert that the 
relevant CAA standard (``appropriate and necessary'') is similar to the 
standard in section 4(d) of the Act (``necessary and advisable''), the 
language in the two statutes differs in significant ways, confirming 
that the Supreme Court's ruling in that case does not apply in the 
context of 4(d) rules. The Court's decision in Michigan v. EPA revolved 
around three central attributes in the CAA language--in particular, 
that: (1) the statute was mandating a decision about whether or not to 
regulate; (2) the standard that the statute prescribed for determining 
whether to regulate was whether it was necessary and ``appropriate,'' 
and the statute did not include additional considerations that might 
narrow that consideration; and (3) related provisions within the 
statute expressly factored in cost. See id. at 752-55. The standard in 
section 4(d) of the Act shares none of those attributes: (1) section 
4(d) does not involve a decision on whether or not to regulate or 
protect threatened species--instead, under the Act, the Service must 
issue protective regulations for threatened species and must determine 
what provisions to include in those regulations [16 U.S.C. 1533(d)]; 
(2) the standard in section 4(d) of the Act does not contain the term 
``appropriate,'' which the Court focused on as ``the classic broad and 
all-encompassing term that naturally and traditionally includes 
consideration of all the relevant factors,'' id. at 752 (quotation 
omitted); and (3) the Act's requirement to issue such regulations as 
the Secretary ``deems necessary and advisable to provide for the 
conservation of such species'' is not surrounded by other provisions 
identifying cost as a factor--rather, with the limited exceptions of 
recovery planning under section 4(f) and potential exclusions from 
critical habitat under section 4(b)(2), there are no references at all 
to costs in section 4 of the Act.
    With respect to comments about approaches to undertaking an 
economic analysis, we disagree with the assertions that we have data 
either prior to or after 2019 that would allow for their suggested 
approaches. In addition, the Service did not estimate any resource 
burden differences associated with the 2019 4(d) rule in the document 
entitled ``Effects Data for the Revision of the Regulations on 
Prohibitions That Apply to Threatened Wildlife and Plants,'' and we do 
not have the data to conduct such analyses. Instead, we forecasted the 
number of potential species listed as threatened species and the 
increased number of species-specific rules that would be required due 
to the removal of the ``blanket rule'' options.
    Between the time that the 2019 4(d) rule went into effect in 
September 2019 and early January 2024, we listed or reclassified 44 
threatened species (33 wildlife and 11 plant species) and finalized 
associated species-specific 4(d) 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. Since all of the 4(d) rules 
promulgated after September 2019 were species-specific 4(d) rules, this 
data would not shed light on the potential costs or benefits of 
reinstating the ``blanket rules.''
    Comment 32: Several commenters believed the Service's findings 
under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) and 
consideration of responsibilities under Executive Order (E.O.) 13132 
(Federalism) and E.O. 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) were 
insufficient or incorrect. Commenters suggested that protecting 
threatened species in the future through the use of ``blanket rules'' 
would result in much greater impacts than protecting threatened species 
in the future through the use of species-specific 4(d) rules. The 
commenters also disagreed with our finding for E.O. 12630 (Takings) 
that the proposed rule would not have significant takings implications 
and that a takings implication assessment is not warranted. They urged 
us to conduct additional assessments before finalizing the rule.
    Response: Regarding all required determinations for the rulemaking, 
the primary change that this final rule makes is simply to put a 
regulatory framework in place for future application. In the future, 
for each threatened species, we will apply regulatory protections for 
that threatened species that are necessary and advisable--either by 
promulgating a species-specific 4(d) rule or by applying a ``blanket 
rule'' to that species.
    Similarly, the changes that this rule makes to currently listed 
species will not result in significant differences in outcomes. As 
discussed elsewhere in this document, the substantive changes to 
protections for currently listed threatened species are limited to: (1) 
allowing Tribes to aid/salvage dead, injured, or diseased individuals 
without a section 10 permit, which reduces regulatory burden for 
Tribes; and (2) incorporating the existing provisions of the 1988 
amendments to the Act that prohibit the malicious damage or destruction 
of threatened plants on an area under Federal jurisdiction or the 
removal, cutting, digging up, or damage or destruction of such plants 
on any other area in knowing violation of any State law or regulation 
or in the course of any violation of a State criminal trespass law. 
These minor changes for threatened species of plants will not 
substantially affect anyone.
    Regarding the RFA and E.O. 13211, because the changes are primarily 
instructive regulations, this rulemaking does not directly affect small 
entities or any other entities and is unlikely to cause any adverse 
effects on energy supply, distribution, or use (including a shortfall 
in supply, price increases, and increased use of foreign supplies).
    Regarding E.O. 13132, ``Federalism,'' that E.O. includes federalism 
implications from regulations, legislative comments or proposed 
legislation, and other policy statements or actions that have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This 
rulemaking has no such federalism implications. The Service is the only 
entity that is directly affected by this rule, as we are the only 
entity that will apply these regulations to protect threatened species, 
and the regulatory changes to endangered species result in no material 
changes. In addition, as stated below under Required Determinations in 
Federalism (E.O. 13132), both the ``blanket rules'' and species-
specific 4(d) rules include explicit exceptions for States that have

[[Page 23935]]

entered into cooperative agreements with the Service to conduct 
conservation programs for threatened species. This rule will further 
the goals of conservation and recovery of endangered species and 
threatened species, as the Service is mandated to do. Further, the Act 
requires that for any threatened species the Service issue protective 
regulations that are necessary and advisable to provide for their 
conservation. This is a duty that cannot be delegated to States. While 
serving to advance the conservation purposes of the Act, this rule will 
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.
    Regarding E.O. 12630, as discussed in the June 22, 2023, proposed 
rule and below under Required Determinations, this rulemaking will not 
directly affect private property, nor will it cause a physical or 
regulatory taking. It will not result in a physical taking because it 
will not effectively compel a property owner to suffer a physical 
invasion of property. Further, the rulemaking will not result in a 
regulatory taking because it will not deny all economically beneficial 
or productive use of the land or aquatic resources and it will 
substantially advance a legitimate government interest (conservation 
and recovery of endangered species and threatened species) and will not 
present a barrier to all reasonable and expected beneficial use of 
private property.
    Comment 33: Some commenters asserted that the Service needs to 
prepare an environmental assessment or environmental impact statement 
pursuant to National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) for these revisions to the regulations and that this rulemaking 
action should not be categorically excluded. Specifically, they suggest 
that we need to take a hard look at the foreseeable impacts of the 
regulatory changes, along with a reasonable range of alternatives. One 
commenter requested that we make any NEPA documentation available prior 
to issuing a final rule.
    Response: We have complied with NEPA by determining that the rule 
is covered by a categorical exclusion found at 43 CFR 46.210(i). We 
explained this determination in an environmental action statement (EAS) 
that is posted in the docket for this rule. As explained in the EAS, 
this rulemaking primarily provides the framework for protections to 
threatened species but does not apply this framework to any species; it 
is not until we list a species as threatened and decide whether to 
issue a species-specific 4(d) rule or protect the species with a 
``blanket rule'' that this framework applies to that species. Another 
aspect of this rulemaking is to make edits to the regulatory 
protections for endangered species to bring those protections into 
conformity with the 1988 amendments to the statute. In addition, the 
rulemaking makes two substantive changes for currently listed 
threatened species that were protected under prior versions of the 
``blanket rules'' or under species-specific 4(d) rules that refer to 
any of the sections we are revising. First, we add federally recognized 
Tribes to the entities authorized to aid, salvage, or dispose of 
threatened species. Second, as a result of updating our endangered 
plant regulations at 50 CFR 17.61(c)(1) to match amendments to the Act 
that Congress enacted in 1988, the implementing regulations now also 
make clear that threatened plants protected under the previous 
``blanket rule'' are protected from being maliciously damaged or 
destroyed on areas under Federal jurisdiction; or being removed, cut, 
dug up, or damaged or destroyed 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.
    In light of this information, the framework and minor regulatory 
changes in this rulemaking will not have any significant impacts on the 
human environment. Further, when the Service proposes any future 
species-specific 4(d) rules that are not concurrent with the final 
listing rule, the proposed action will be subject to the NEPA process 
at that time.
    Comment 34: Some commenters asserted the need to complete intra-
Service consultation pursuant to section 7 of the Act on the issuance 
of the final regulations.
    Response: We address this below under Endangered Species Act in 
Required Determinations.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order (E.O.) 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 rule is significant. Executive Order 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. 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 and E.O. 13563. 
Regulatory analysis, as practicable and appropriate, shall recognize 
distributive impacts and equity, to the extent permitted by law. We 
have developed this rule in a manner consistent with these 
requirements.
    We are revising portions of the implementing regulations at 50 CFR 
part 17. The preamble to this rule details how the regulatory changes 
we are adopting will improve the implementation of the Act. The 
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 regulations retain the continued option to promulgate 
species-specific 4(d) 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 had listed, along with the number of 
species-specific 4(d) 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). 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. 
Between that rule's effective date in September 2019 and early January 
2024, we listed or reclassified 44 threatened species (33 wildlife and 
11 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.
    With reinstatement of the ``blanket rules,'' we anticipate that in 
some cases we will continue to propose and finalize species-specific 
4(d) rules that are designed to meet the specific conservation needs of 
particular species.

[[Page 23936]]

However, in other situations, we may find that the standard suite of 
prohibitions and exceptions for threatened species in the ``blanket 
rule'' is appropriate because that is what is necessary and advisable 
to provide for the protection of those species. We can anticipate only 
that, because the ``blanket rule'' option had been available for the 
more than 40 years between early in the administration of the Act and 
the effective date of the 2019 4(d) rule (September 26, 2019), we do 
not anticipate any material effects to the process or outcomes as a 
result of reinstatement of the ``blanket rules.'' However, because 
protections for threatened species are so highly fact-specific, it is 
not possible to specify future benefits or costs stemming from the 
revisions.
    The updates we are finalizing to the endangered plant regulations 
at 50 CFR 17.61(c)(1) to match amendments to the Act that Congress 
enacted in 1988 (ESA section 9(a)(2)(B), 16 U.S.C. 1538(a)(2)(B); Pub. 
L. 100-478 (October 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. These minor edits will not materially change the 
protections provided to threatened or endangered species or their 
effects on any potentially regulated entities.
    We are also revising 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 revisions 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 revisions 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 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 certified at the proposed rule 
stage that the proposed rule would not have a significant economic 
impact on a substantial number of small entities (88 FR 40742, June 22, 
2023). Nothing in this final rule changes the basis for that 
conclusion, and we received no information that changes the factual 
basis of this certification.
    This rulemaking revises the Service's regulations protecting 
endangered and threatened species under the Act. The changes in this 
rule are instructive regulations and do not directly affect small 
entities. The Service is the only entity directly affected by this 
rule, as we are the only entity that applies these regulations to 
protect threatened species, and the regulatory changes to endangered 
species result in no material changes. External entities, including any 
small businesses, small organizations, or small governments, are not 
directly regulated by this rule and thus will not experience any direct 
economic impacts from this rule.

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 presented under Regulatory 
Flexibility Act above, this rule will not ``significantly or uniquely'' 
affect small governments. We have determined and certify pursuant to 
the Unfunded Mandates Reform Act, that this rule will 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 will not be affected because the 
rule will not place additional requirements on any city, county, or 
other local municipalities.
    (b) This 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, this rule is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule will impose 
no obligations on State, local, or Tribal governments.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this rule will not have significant 
takings implications. This rule will not directly affect private 
property, nor will it cause a physical or regulatory taking. It will 
not result in a physical taking because it will not effectively compel 
a property owner to suffer a physical invasion of property. Further, 
the rule will not result in a regulatory taking because it will not 
deny all economically beneficial or productive use of the land or 
aquatic resources, and it will substantially advance a legitimate 
government interest (conservation and recovery of endangered species 
and threatened species) and will 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 rule 
will have significant federalism effects and have determined that a 
federalism summary impact statement is not required. This rule pertains 
only to the Service's protective regulations for endangered species and 
threatened species promulgated under the Act and will 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. The 
Service is the only entity that is directly affected by this rule, as 
we are the only entity that will apply these regulations to protect 
threatened species, and the regulatory changes to endangered species 
result in no material changes. In

[[Page 23937]]

addition, both the ``blanket rules'' and species-specific 4(d) rules 
include explicit exceptions for States that have entered into 
cooperative agreements with the Service to conduct conservation 
programs for threatened species, recognizing the important role that 
States play in the conservation of listed species.

Civil Justice Reform (E.O. 12988)

    This 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 rule revises 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 have considered possible effects of this rule on 
federally recognized Indian Tribes and Alaska Native Corporations. We 
held three informational webinars for federally recognized Tribes in 
January 2023, before the June 22, 2023, proposed rule published, to 
provide a general overview of, and information on how to provide input 
on, a series of rulemakings related to implementation of the Act that 
the Service and NMFS were developing, including the June 22, 2023, 
proposed rule to revise our regulations at 50 CFR part 17. In July 
2023, we also held six informational webinars after the proposed rule 
published, to provide additional information to interested parties, 
including Tribes, regarding the proposed regulations. More than 500 
attendees, including representatives from federally recognized Tribes 
and Alaska Native Corporations, participated in these sessions, and we 
addressed questions from the participants as part of the sessions. We 
received written comments from Tribal organizations; however, we did 
not receive any requests for coordination or government-to-government 
consultation from any federally recognized Tribes. We received one 
request to consult with Alaska Native Corporations.
    These regulations will 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. This 
rule is general in nature and does not directly affect any specific 
Tribal lands, treaty rights, or Tribal trust resources. Therefore, we 
conclude that this rule does not have Tribal implications under section 
1(a) of E.O. 13175. Thus, formal government-to-government consultation 
is not required by E.O. 13175 and related DOI policies. This rule 
revises regulations for protecting endangered and threatened species 
pursuant to the Act. The only provision in these 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 provision simply provides a new mechanism for 
compliance with the Act. These regulations will 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 will continue to collaborate with Tribes and Alaska Native 
Corporations on issues related to federally listed species and their 
habitats and will 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) and Secretaries' Order 3225 (``Endangered Species 
Act and Subsistence Uses in Alaska (Supplement to Secretarial Order 
3206),'' January 19, 2001).

Paperwork Reduction Act

    This 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 (44 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 have analyzed this 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 through 46.450), and the Department of the Interior 
Manual (516 DM 8). On June 3, 2023, NEPA was amended by the Fiscal 
Responsibility Act (Pub. L. 118-5). These amendments codified a 
procedure for determining the appropriate level of NEPA review. Under 
these statutory standards, which generally reflect the same standards 
previously applicable by regulation, an environmental impact statement 
is only required for an action that has a reasonably foreseeable 
significant effect on the quality of the human environment. An 
environmental assessment is not required for actions that do not have a 
reasonably foreseeable significant effect on the quality of the human 
environment, or have effects of unknown significance if the agency 
finds, inter alia, that the action is excluded pursuant to one of the 
agency's categorical exclusions. We have determined that a detailed 
statement under NEPA is not required because the rule is covered by a 
categorical exclusion. We find that the categorical exclusion found at 
43 CFR 46.210(i) applies to these regulation changes. At 43 CFR 
46.210(i), the Department of the Interior has found that the following 
category of actions would not individually or cumulatively have a 
significant effect on the human environment and are, therefore, 
categorically excluded from the requirement for completion of an 
environmental assessment or environmental impact statement: Policies, 
directives, regulations, and guidelines: that are of an administrative, 
financial, legal, technical, or procedural nature; or whose 
environmental effects are too broad, speculative, or conjectural to 
lend themselves to meaningful analysis and will later be subject to the 
NEPA process, either collectively or case-by-case. We have also 
considered whether any of the extraordinary circumstances described in 
43 CFR 46.215 is present, and we did not identify any extraordinary 
circumstances that apply to this rulemaking. When the Service proposes 
any 4(d) rules that are not concurrent with the listing rule for the 
respective species, the proposed action will be subject to the NEPA 
process at that time.

Endangered Species Act

    As discussed in our June 22, 2023, proposed rule (88 FR 40742 at 
40750), in developing aspects of this rule, we are acting in our unique 
statutory role as administrator of the Act and are engaged in a legal 
exercise of interpreting the standards of the Act. Our 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). For this reason, we have a historical practice of

[[Page 23938]]

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 our promulgation of 
implementing regulations under the Act.
    As part of this rulemaking, we are revising implementing 
regulations to interpret the statute or to align the regulations with 
changes Congress has made to the statute. These revisions include 
updating endangered plant regulations at 50 CFR 17.61(c)(1) to match 
amendments to the Act that Congress enacted in 1988. This revision does 
not alter any protections for endangered plants. We also make 
corrections or clarifications to regulations for both endangered 
species and threatened species that result in no substantive change in 
protection for either currently listed species or species listed in the 
future. For example, we make minor changes to clarify, without changing 
the scope or intent of, the existing regulations in several locations 
(e.g., 50 CFR 17.21, 17.31, 17.32), 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). We 
make these revisions for the purpose of improving readability, 
increasing consistency among sections, and correcting other 
inaccuracies. These aspects, if proposed on their own, would not result 
in our undertaking section 7 consultation.
    In addition to discussing in the proposed rule that aspects of the 
proposal fell within our unique statutory role as administrator of the 
Act, we also recognized that we may need to conduct a section 7 
analysis on some aspects of the rulemaking. After further 
consideration, we find that, for one aspect of this rulemaking, 
application of section 7(a)(2) is appropriate because our role is more 
akin to our role as an ``action agency'' principally implementing 
provisions of the Act, rather than defining the Act's standards as an 
administrator of the Act. This aspect is reinstating the ``blanket 
rule'' options at 50 CFR 17.31(a) and 17.71(a), which will 
automatically apply to every future threatened species unless we issue 
a species-specific 4(d) rule. Reinstating the ``blanket rules'' 
determines the protections that are necessary and advisable for species 
that are listed as threatened species in the future without a species-
specific 4(d) rule.
    Because this aspect of the rulemaking is more akin to our role as 
an ``action agency'' principally implementing provisions of the Act, we 
fulfilled our section 7 responsibilities to determine whether the 
overall action of reinstating and updating the ``blanket rules'' ``may 
affect'' listed species or critical habitat. We found there will be no 
effects to listed species or critical habitat, as we have no 
information identifying any generalized environmental changes that 
would not occur but for this rule and are reasonably certain to occur. 
See our section 7 determination at https://www.regulations.gov for 
additional information.

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

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

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.

Regulation Promulgation

    Accordingly, we 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.  17.3 by revising the definition for ``Convention'' to 
read as follows:


Sec.  17.3  Definitions.

* * * * *
    Convention means the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora, TIAS 8249 (see part 23 of 
this chapter).
* * * * *

0
3. 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
4. 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.

[[Page 23939]]

    (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 https://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 1 to paragraph (d)(1).  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 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
5. 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 https://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
6. Amend Sec.  17.32 by revising the 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 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

[[Page 23940]]

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
7. Amend Sec.  17.40 by revising the section heading to read as 
follows:


Sec.  17.40  Species-specific rules--mammals.

* * * * *

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


Sec.  17.41  Species-specific rules--birds.

* * * * *

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


Sec.  17.42  Species-specific rules--reptiles.

* * * * *

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


Sec.  17.43  Species-specific rules--amphibians.

* * * * *

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


Sec.  17.44  Species-specific rules--fishes.

* * * * *

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


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

* * * * *

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


Sec.  17.46  Species-specific rules--crustaceans.

* * * * *

0
14. 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
15. Remove and reserve Sec.  17.48.

Subpart F--Endangered Plants

0
16. 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 https://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.
    (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
17. 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 https://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

[[Page 23941]]

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
18. Amend Sec.  17.72 by revising the introductory text 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 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
19. Amend Sec.  17.73 by revising the section heading to read as 
follows:


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

* * * * *

0
20. 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. 2024-06901 Filed 4-2-24; 8:45 am]
BILLING CODE 4333-15-P