[Federal Register Volume 91, Number 136 (Friday, July 17, 2026)]
[Proposed Rules]
[Pages 44780-44797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14450]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2024-0186; FXES1111090FEDR-267-FF09E21000]
RIN 1018-BI14
Endangered and Threatened Wildlife and Plants; Grizzly Bear
Listing on the List of Endangered and Threatened Wildlife With a
Revised Section 4(d) Rule; Proposed Revision of the Protective
Regulations Under Section 4(d)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Supplemental notice of proposed rulemaking; revised proposed
protective regulations under section 4(d); reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or FWS),
notify the public that we are making changes to our January 15, 2025,
proposed rule to revise the protective regulations for the grizzly bear
(Ursus arctos horribilis) in the lower-48 States under section 4(d) of
the Endangered Species Act of 1973, as amended (Act or ESA). We are
reopening the comment period because we are proposing substantive
changes to the protective regulations in the January 15, 2025, proposed
rule. Comments previously submitted will be considered and do not need
to be resubmitted now. However, we invite comments on the new
information presented in this announcement relevant to the changes to
the proposed protective regulations, as described below. We encourage
those who have commented previously to submit additional comments, if
appropriate, considering this new information relative to the
protective regulations for the grizzly bear. At this time, we are not
proposing any revisions to, nor asking for additional comments on, any
other components of our January 15, 2025, proposed rule for the grizzly
bear, including the proposed grizzly bear distinct population segment
(DPS). In addition, we are providing notice that we are considering
issuing separate final rules for our final determinations on the
revision to the grizzly bear listing and the revision to the 4(d) rule.
DATES:
Written comments: We will accept comments received or postmarked on
or before August 17, 2026. Comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES, below) must be received by
11:59 p.m. eastern time on the closing date.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to the
Service by September 15, 2026.
ADDRESSES:
Comment submission: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-R6-ES-
2024-0186, which is the docket number for this rulemaking. Then, click
on the Search button. On the resulting page, in the panel on the left
side of the screen, under the Document Type heading,
[[Page 44781]]
check the Proposed Rule box to locate this document. You may submit a
comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2024-0186, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.fws.gov/species/grizzly-bear-ursus-arctos-horribilis or at https://www.regulations.gov at Docket No. FWS-R6-ES-2024-0186.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted within 60 days of publication of this document to the Service
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-
3803 (mail); or [email protected] (email). Please reference RIN 1018-
BI14 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Hilary Cooley, Grizzly Bear Recovery
Coordinator, U.S. Fish and Wildlife Service, 406-243-4903,
[email protected]. 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. Please see Docket No. FWS-R6-ES-2024-
0186 on https://www.regulations.gov for a document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) Information to assist us with applying or issuing protective
regulations under section 4(d) of the Endangered Species Act of 1973,
as amended (Act or ESA) that may be necessary and advisable to provide
for the conservation of the grizzly bear in the lower-48 States. In
particular, we seek information concerning:
(a) Whether we should remove, add, or clarify any of the section 9
prohibitions in the proposed 4(d) rule;
(b) Whether we should remove, add, or clarify any of the exceptions
from the prohibitions in the proposed 4(d) rule associated with either
conservation benefit or de minimis take, and specifically, whether or
how we address incidental take associated with otherwise lawful
activities, including limits on liability for entities regulating those
activities;
(c) Whether we should modify the structure and requirements for
management tiers; and
(d) Impacts (conservation and economic) associated with
implementing the 4(d) rule;
(e) How frequently and in what geographical areas are activities
that we propose to continue to regulate under the proposed 4(d) rule
(e.g., sale, ``take'') currently occurring;
(f) Whether there are other laws currently in place beyond what we
describe in the economic considerations document that regulate the
activities or ``take'' prohibited in the proposed 4(d) rule;
(g) Any new entities likely to request section 10(a)(1)(A) permits
for conducting activities that would involve ``take'' that we propose
to continue to prohibit such as capture or handling of the grizzly bear
in the lower-48 States;
(h) Data available on the time and economic costs of obtaining
section 10(a)(1)(A) permits in accordance with 50 CFR 17.32 for these
activities compared to existing costs associated with permits under 50
CFR 17.22;
(i) Any new entities likely to develop habitat conservation plans
and request section 10(a)(1)(B) permits for conducting activities that
would involve incidental ``take'' of the grizzly bear in the lower-48
States that we propose to continue to prohibit;
(j) Data available on the time and economic costs of obtaining
section 10(a)(1)(B) permits in accordance with 50 CFR 17.32 compared to
existing costs associated with permits under 50 CFR 17.22 for these
activities;
(k) Any other entities not addressed in this proposed rule that may
be affected by the 4(d) rule;
(l) Any information about effects to States, on the relationship
between the Federal Government and the States, or on the distribution
of powers and responsibilities among the various levels of government;
and
(m) Comments and suggestions regarding additional guidance and
methods that we could provide or use, respectively, to streamline the
implementation of this proposed 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note submissions merely stating support for, or opposition
to, the action under consideration without providing supporting
information, although noted, do not provide substantial information
necessary to support a change from the proposed rule. Section 4(d) of
the Act directs the Service to issue regulations necessary and
advisable for the conservation of threatened species. You may submit
your comments and materials concerning this proposed rule by one of the
methods listed in ADDRESSES. We request you send comments only by the
methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee we will be able to do so. We will
post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final regulation may differ from this proposal because we will
consider all comments we receive during the comment period as well as
any information that may become available after this proposal. Based on
the new information we receive (and, if relevant, any comments on that
new information), we may change the parameters of the prohibitions or
the exceptions to those prohibitions in the protective regulations
issued under section 4(d) of the Act. For example, we may expand the
prohibitions if we conclude the protective regulation as a whole,
including those additional prohibitions, is necessary and advisable to
provide for the conservation of the
[[Page 44782]]
species. Conversely, we may establish additional or different
exceptions to the prohibitions in the final rule if we conclude the
activities would facilitate or are compatible with the conservation and
recovery of the species. In our final rule, we will clearly explain our
rationale and the basis for our final decision, including why we made
changes, if any, that differ from this proposal.
Previous Federal Actions
Please see our January 15, 2025 (90 FR 4234), proposed rule for a
full summary of our previous Federal actions for the grizzly bear. Our
January 15, 2025 (90 FR 4234), proposed rule would revise the listing
of the grizzly bear by defining the boundaries of the contiguous U.S.
grizzly bear distinct population segment (DPS) with revised protective
regulations for the grizzly bear issued under section 4(d) of the Act.
That proposal had a 60-day comment period, ending March 17, 2025, which
we extended for an additional 60 days (90 FR 12286, March 17, 2025).
The extended comment period ended on May 17, 2025. We are now reopening
the public comment period for an additional 30 days to give all
interested parties an opportunity to comment on our revised proposal
for the protective regulations issued under section 4(d) of the Act for
the grizzly bear in the lower-48 States, and to notify the public that
we are considering issuing separate final rules for our final
determinations on the revision to the grizzly bear listing and the
revision to the 4(d) rule.
Background
Section 9 of the Act provides a specific list of prohibitions for
endangered species but does not provide these same prohibitions for
threatened species. Instead, pursuant to section 4(d) of the Act, for
any species listed as a threatened species, the Secretary must issue
protective regulations that are ``necessary and advisable to provide
for the conservation of such species'' (these are referred to as ``4(d)
rules''). Section 4(d) of the Act contains two sentences. The first
sentence states that the Secretary shall issue such regulations as they
deem necessary and advisable to provide for the conservation of species
listed as threatened species. ``Conservation'' is defined in the Act to
mean the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states 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. With these two
sentences in section 4(d), Congress delegated broad 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.
Courts have recognized the extent of the Secretary's discretion
under section 4(d) to develop regulations that are appropriate for the
conservation of threatened species. For example, courts have upheld, as
a valid exercise of agency authority, rules developed under section
4(d) that included limited prohibitions against takings (see Alsea
Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007);
Washington Environmental Council v. National Marine Fisheries Service,
2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules
that do not address all of the threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the
Act's legislative history, ``once an animal is on the threatened list,
the Secretary has an almost infinite number of options available to
[them] with regard to the permitted activities for those species.
[They] may, for example, permit taking, but not importation of such
species, or [they] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Under our section 4(d) authorities, we put in place protections
intended to both prevent a threatened species from becoming an
endangered species and to promote its recovery. Section 4(d) rules
explain what is prohibited for a threatened species, thus making the
activity unlawful without a permit or authorization under the Act for
the prohibited activity unless otherwise excepted in the 4(d) rule
(species-specific 4(d) rules may also include affirmative
requirements). Section 4(d) rules are therefore directly related to
what actions may require permits in the future. Permits may be issued
for purposes described in our threatened species permitting regulations
in title 50 of the Code of Federal Regulations (CFR; 50 CFR 17.32),
including for recovery actions, conservation benefit agreements
(previously referred to as candidate conservation agreements with
assurances and safe harbor agreements), or habitat conservation plans.
We may also except otherwise prohibited activities through a 4(d) rule
itself, in which case threatened species permits will not be required
for those activities. For example, there are two categories of
exceptions we frequently include in 4(d) rules, and these are for
otherwise prohibited acts or forms or amounts of ``take'' that are: (1)
unavoidable while conducting beneficial actions for the species, or (2)
considered inconsequential (de minimis) to the conservation of the
species. For otherwise prohibited take or activities that require
permits under section 10 of the Act, programmatic approaches--such as
general conservation plans and template habitat conservation plans--may
be available as another way for project proponents to comply with
prohibitions or requirements applicable to one or more species while
reducing the time that would otherwise be associated with developing
individual permit applications. In addition, the Service and project
proponents can reduce the need for such permits by developing
standardized conservation measures that avoid the risk of ``take.''
The grizzly bear (Ursus arctos horribilis) currently has a species-
specific protective regulation at 50 CFR 17.40(b), which we are
proposing to amend. The provisions of this species' proposed protective
regulation under section 4(d) of the Act are one of many tools we will
use to promote the conservation of the grizzly bear in the lower-48
States. The grizzly bear also has two designated experimental
populations. An experimental population is a population of a listed
species that has been specifically designated under section 10(j) of
the Act for release into habitat capable of supporting the species
outside of its current range. While the two experimental populations
will further the conservation of the species, both have been found to
be not essential to the continued existence of the species, or
nonessential. These designations include population-specific protective
regulations under section 10(j) of the Act for two nonessential
experimental populations (NEPs), the North Cascades and Bitterroot,
that are not affected by this proposed rule. Any changes to NEP
population status or their specific regulations would require separate
rulemaking processes with opportunities for public review and comment
(see Interaction of the 4(d) Rule with 10(j) Regulations).
The proposed protective regulations will apply only if and when we
finalize this proposed 4(d) rule. Nothing in 4(d) rules change in any
way the recovery planning provisions of section 4(f) of the
[[Page 44783]]
Act, the consultation requirements under section 7 of the Act, or the
ability of the Service to enter into partnerships for the management
and protection of the grizzly bear. Section 7(a)(2) of the Act requires
Federal agencies, including the Service, to ensure any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of designated critical habitat
of such species. These requirements are the same for a threatened
species regardless of what is included in its 4(d) rule. A 4(d) rule
does not alter section 7 obligations, including the criteria for
informal and formal consultations or the analytical process used for
biological opinions or concurrence letters. Section 7 consultation is
required for Federal actions that ``may affect'' a listed species
regardless of whether take caused by the activity is prohibited or
excepted by a 4(d) rule. For example, as with an endangered species, if
a Federal agency determines an action is ``not likely to adversely
affect'' a threatened species, this will require the Service's written
concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determines an action is ``likely to adversely affect'' a threatened
species, the action will require formal consultation with the Service
and the formulation of a biological opinion (50 CFR 402.14(a)),
regardless of whether the action will result in ``take'' of the
threatened species.
At the end of a formal consultation, the Service issues a
biological opinion, containing its determination as to whether the
Federal action is likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
critical habitat (a ``jeopardy'' biological opinion) (50 CFR
402.14(h)).
If the Service determines in its biological opinion the action is
likely to jeopardize listed species or destroy or adversely modify
critical habitat, it shall include reasonable and prudent alternatives,
if any exist, it believes would avoid the likelihood of jeopardy or
destruction or adverse modification (50 CFR 402.14(h)). In accordance
with 50 CFR 402.14(i), when there is a ``no jeopardy'' biological
opinion but ``take'' of a listed species is reasonably certain to
occur, the Service is required to issue an incidental take statement
that specifies those reasonable and prudent measures (RPMs) the Service
considers necessary or appropriate to minimize the impact of the
incidental take and terms and conditions (TCs) that must be complied
with to implement those measures. When impacts associated with certain
activities are not prohibited by a 4(d) rule (i.e., not ``take''), the
biological opinion will likely not include additional RPMs/TCs relative
to those impacts. In those cases where take is prohibited, the RPMs/TCs
associated with the incidental take statement would vary depending on
the nature of the action, the location, scope, etc. Regardless, the
RPMs/TCs cannot alter the basic design, location, scope, duration, or
timing of the action and may involve only minor changes (50 CFR
402.14(i)(2)). They should not prevent the action subject to
consultation from proceeding as essentially proposed (89 FR 24268).
Because consultation obligations and processes are unaffected by
4(d) rules, we may consider developing tools to streamline future
intra-Service and interagency consultations for actions that result in
forms of take that are not prohibited by the 4(d) rule (but still
require consultation). These tools, which can also increase consistency
across consultations, may include consultation guidance; streamlined,
online consultation processes via the Service's digital project
planning tool (Information for Planning and Consultation; https://ipac.ecosphere.fws.gov/); template language for biological opinions; or
programmatic consultations. Although there are no specific habitat-
based take exceptions in this rule, habitat management is a key aspect
of grizzly bear conservation, and we plan to work with land management
agencies (e.g., U.S. Forest Service) to streamline consultation
obligations for habitat management.
Interaction of the 4(d) Rule With 10(j) Regulations
As discussed above, there are currently two NEPs for the grizzly
bear in the lower-48 States: (1) the Bitterroot NEP in portions of
Idaho and Montana; and (2) the North Cascades NEP in the State of
Washington. We treat any population determined by the Secretary to be
an experimental population as if we had listed it as a threatened
species for the purposes of establishing protective regulations under
section 4(d) of the Act with respect to that population (50 CFR 17.82).
We have established protective regulations for the Bitterroot and North
Cascades NEPs for grizzly bears at 50 CFR 17.84(l) and 17.84(y),
respectively.
Species-specific regulations promulgated under section 10(j) of the
Act are specific to and apply only to the designated experimental
population authorized for release and identified through regulation.
The 10(j) regulations specific to an experimental population do not
apply to members of nonexperimental populations of the same species
(per section 10(j)(1) of the Act and our regulations at 50 CFR
17.80(a)). This ensures the experimental populations and
nonexperimental populations each receive the appropriate level of
protections under the Act. Currently, no grizzly bears have been
released in either the Bitterroot or North Cascades NEPs, so any
grizzly bears found in the experimental population areas would be
assumed to be members of nonexperimental populations and would be
managed under this proposed grizzly bear section 4(d) rule (50 CFR
17.40(b)).
If there is an initial release of one or more grizzly bears into an
NEP area in the United States, any grizzly bears in that NEP area would
be assumed to be members of the experimental population and would be
treated as part of the experimental population while they are present
within the NEP area. Following an initial release, any grizzly bears
within the experimental population area would receive all the Act's
protections and the exceptions associated with the experimental
population regulations promulgated under section 10(j). If grizzly
bears are released in an NEP area, the 4(d) rule would no longer apply
in that NEP area unless the 10(j) regulation for that NEP area is
removed through a separate rulemaking.
Provisions of the Proposed 4(d) Rule for the Grizzly Bear in the Lower-
48 States
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed this proposed rule, designed to address the grizzly
bear's conservation needs. Section 4(d) requires the Secretary to issue
such regulations as they deem necessary and advisable to provide for
the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
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))). Our necessary and
advisable determination includes consideration of conservation and
economic impacts (Kansas Natural Resources Coalition, et al. v. USFWS,
et al. 780 F. Supp. 3d 650 (W.D. Tex. 2025)). We explain below why we
find that, if finalized, the
[[Page 44784]]
prohibitions, and exceptions in this proposed rule as a whole satisfy
the requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to provide for the conservation of the grizzly
bear.
The protective regulations we are proposing for the grizzly bear
incorporate prohibitions from section 9(a)(1) of the Act to address the
threats to the species. We propose to include the following
prohibitions of section 9(a)(1) of the Act, and implementing
regulations codified at 50 CFR 17.21, which make it illegal 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 following acts with regard to any endangered
wildlife: (1) import into, or export from, the United States; (2) take
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct)
within the United States, within the territorial sea of the United
States, or on the high seas; (3) possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any such wildlife that has
been taken illegally; (4) deliver, receive, carry, transport, or ship
in interstate or foreign commerce, by any means whatsoever and in the
course of commercial activity; or (5) sell or offer for sale in
interstate or foreign commerce. We also propose to prohibit--with
specific exceptions described below, certain acts with grizzly bears
that have been legally taken (i.e., the acts of possessing, selling,
delivering, carrying, transporting, or shipping, by any means
whatsoever). This proposed protective regulation includes these
prohibitions to help conserve the species' existing populations, and
decrease synergistic, negative effects from ongoing or future threats.
In particular, this proposed 4(d) rule will provide for the
conservation of the grizzly bear by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take,
including mistaken-identity killings; possession, delivery, carriage,
transport, or shipment of taken grizzly bears; interstate or foreign
commerce in the course of commercial activity; and selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take is intended to help conserve the species' existing populations,
and decrease synergistic, negative effects from other stressors.
Therefore, we propose to prohibit take of the grizzly bear, except for
take resulting from those actions and activities specifically excepted
by this proposed 4(d) rule.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that are intended to incentivize
conservation actions or actions that are not expected to rise to the
level that would have a negative impact (i.e., would have only de
minimis impacts) on the species' conservation. We propose to
conditionally except take associated with the following activities:
Employees or agents of the Service acting in the course of
their official duties;
Import and export;
Possession;
Interstate or foreign commerce;
Permits;
Scientific, genetic, or population augmentation purposes;
Defense of life (self-defense);
Aiding sick and injured grizzly bears;
Disposal of or salvage a dead grizzly bear;
Incidental take by authorized agencies due to nonlethal
capture and handling of other species for research and management;
Deterrence;
Management activities; and
Incidental take associated with regulated trapping of
other species.
We provide additional detail regarding these exceptions and the
conditions under which they would apply below. Although there are no
habitat-based take exceptions in this 4(d), we recognize that the
primary land managers across much of this range in the lower-48 are
Federal agencies (e.g., U.S. Forest Service). Because consultation
obligations and processes under section 7(a)(2) are unaffected by 4(d)
rules, we plan to work with land management agencies (e.g., U.S. Forest
Service) to streamline and improve consistency in the consultation
obligations for habitat management activities independently of this
rule.
We also describe a dynamic approach, with two tiers of additional
exceptions for management activities and incidental take for Federal,
State, or Tribal agencies once management plans and conservation
strategies are finalized, population demographic objectives are
achieved, and Memorandums of Understanding (MOUs) with the Service are
completed. These activities are intended to incentivize conservation
actions and have negligible impacts to the grizzly bear in the lower-48
States.
Grizzly bears sometimes obtain anthropogenic food sources, such as
pet food, garbage, or livestock. Grizzly bears that repeatedly obtain
anthropogenic foods (i.e., food-conditioned bears) can become a threat
to human safety. Additionally, grizzly bears that kill or injure
livestock (i.e., depredating bears, or bears that cause damage or loss)
can affect the livelihood of ranchers and other livestock owners.
Deterrence, relocation, or timely removal of depredating or food-
conditioned grizzly bears mitigates risks to human safety and
livestock, thereby fostering increased public tolerance and support for
conservation efforts. This approach has been implemented by wildlife
agencies for decades, during which grizzly bear populations have
continued to expand. In this proposed 4(d) rule, we consider
strategies, including nonlethal and lethal methods, to increase human
safety and reduce human-bear conflicts and thereby promote conservation
of the grizzly bear.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. Their decades of commitment,
collaboration, and resource investment have been central to the
species' recovery and ongoing success. State agencies often possess
scientific data and valuable expertise on the status and distribution
of endangered, threatened, and candidate species of wildlife and
plants. State agencies, because of their authorities and their close
working relationships with local governments and landowners, are in a
unique position to assist us in implementing the Act. Section 6 of the
Act provides that we must cooperate to the maximum extent practicable
with the States in carrying out programs authorized by the Act. Our
Federal and Tribal agency partners also possess scientific data and
valuable expertise on the status and distribution of grizzly bears, as
well as important knowledge of local issues and concerns. Therefore, we
propose that any qualified employee or designated agent of an
authorized agency, who is designated by his or her agency for such
purposes, would be able to conduct activities designed to conserve the
grizzly bear in the lower-48 States that may result in otherwise
prohibited take as specified in a current Technical Letter of
Assistance (TLA) from, or
[[Page 44785]]
MOU with, the Service under the provisions of this proposed 4(d) rule.
A TLA is a letter issued by the Service that describes and clarifies
terms and conditions for take by authorized agencies.
To further the conservation of the species, we propose not to apply
the exceptions at 50 CFR 17.31(b), and apply multiple species-specific
exceptions. For example, this rule would clarify exceptions for any
employee or agent of the Service or any other authorized agency, who is
designated by their agency for such purposes. Such employees or agents,
may, when acting in the course of their official duties, live-capture
grizzly bears if such action is necessary for scientific, genetic, or
population augmentation purposes, take grizzly bears to aid sick or
injured individuals, dispose of or salvage a dead grizzly bear that may
be useful for scientific study, and incidentally take grizzly bears
associated with research or non-lethal management of other species. We
also propose to except take for individuals conducting nonlethal
deterrence to discourage grizzly bears from using areas near human-
occupied areas.
Below, we provide additional detail regarding the following
proposed exceptions: import and export; possession; interstate or
foreign commerce; permits; scientific, genetic, or population
augmentation; aiding sick or injured grizzly bears; disposal of or
salvage a dead grizzly bear; incidental take from research and
nonlethal management of other species; deterrence; management
activities; incidental take from regulated trapping of other species;
and additional exceptions for authorized agencies for management
activities and incidental take under Tier 1 and Tier 2. Table 1
summarizes these exceptions and Table 2 summarizes the additional
exceptions under either Tier 1 or Tier 2 for authorized agencies once
the tier's conditions are met.
Table 1. Summary of the proposed exceptions to the prohibitions for
the grizzly bear. Additional exceptions for management activities and
incidental take by authorized agencies may apply in geographic areas
identified as Tier 1 or Tier 2 once the tier's conditions are met and
MOUs with the Service are complete (see Table 2).
------------------------------------------------------------------------
Description of the exception, with any
Exceptions from the applicable conditions and monitoring
prohibitions requirements
------------------------------------------------------------------------
Employees or agents of the Any employee or agent of the Service may,
U.S. Fish and Wildlife when acting in the course of their
Service (Service). official duties, take a grizzly bear.
Import and export............ Federal, State, or Tribal agencies may
import live grizzly bears into the lower-
48 States. Public zoological
institutions (see 50 CFR 10.12) with an
MOU with the Service may import or
export live grizzly bears or their parts
and products into or out of the United
States. Federal, State, or Tribal
agencies may import or export grizzly
bear parts and products for scientific,
cultural, law enforcement, educational,
or research purposes.
Possession................... Federal, State, and Tribal agencies with
authorization to possess from the
Service may possess, deliver, carry,
transport, or ship grizzly bear parts
and products of grizzly bears. Public
zoological institutions (see 50 CFR
10.12) with an MOU with the Service may
possess live grizzly bears (e.g.,
orphaned cubs) obtained from the wild.
Museums and other nonprofit institutions
with authorization to possess from the
Service may possess, deliver, carry,
transport, or ship grizzly bear parts
and products for cultural, education,
information, and outreach purposes.
Parts and products may only be possessed
by entities or nonprofit (501(c)(3))
organizations whose primary stated
purposes are cultural, education or
research. Parts and products shall not
be traded, transferred or disposed
without prior authorization from the
Service and may not be used in advocacy
or lobbying efforts.
Interstate or foreign A public zoological institution (see 50
commerce. CFR 10.12) dealing with other public
zoological institutions may sell grizzly
bears or offer them for sale in
interstate or foreign commerce, and may,
in the course of commercial activity,
deliver, receive, carry, transport, or
ship grizzly bears in interstate or
foreign commerce with prior
authorization from the Service.
Permits...................... Any person may conduct activities as
authorized by a valid permit under Sec.
17.32.
Scientific, genetic, or Collection of samples from a grizzly bear
population augmentation in the wild excepted for authorized
purposes. agencies. Designated agents with a TLA
or MOU may live-capture and tag, collar,
transport, and release a grizzly bear.
Take that results in a grizzly bear
mortality or grizzly bear lasting bodily
injury must be reported to the Service
within 48 hours or as soon as practical
given remote conditions. Without an MOU
or TLA, a permit under Sec. 17.32 is
required.
Defense of life (self- Any person may take a grizzly bear in
defense). defense of their own life or the lives
of others. Grizzly bears taken in self-
defense or in defense of human life must
be reported by the person who has taken
the bear or their designee within 48
hours of occurrence or as soon as
practical given remote conditions.
Aiding sick or injured Take is excepted for authorized agencies
grizzly bears. aiding bears determined to be sick or
injured to the extent they are unable to
effectively move, obtain food, or defend
themselves for any length of time (i.e.,
lasting bodily harm) if the necessary
actions are conducted in a humane
manner. Take associated with orphaned
cubs must have prior authorization from
the Service, except in geographic areas
identified as Tier 2 (see Table 2,
below). Take must be reported to the
Service within 48 hours or as soon as
practical given remote conditions.
Disposal of or salvage a dead Take is excepted for authorized agencies
grizzly bear. to dispose of or salvage a dead grizzly
bear that may be useful for scientific
study. Take must be reported to the
Service within 48 hours or as soon as
practical given remote conditions.
Incidental take from research Incidental take associated with research
and nonlethal management of and nonlethal management of other
other species by authorized species by an authorized agency
agencies. identified in a TLA from, or an MOU
with, the Service is excepted.
[[Page 44786]]
Deterrence................... Take in the form of harassment is
excepted for individuals to conduct
deterrence of grizzly bears for the
purposes of avoiding human-bear
conflicts or to discourage bears from
using areas near homes and other human-
occupied areas under the following
conditions: any deterrence must be
conducted in accordance with the
Service's grizzly bear hazing guidelines
(https://www.fws.gov/sites/default/files/documents/Grizzly%20Bear%20Hazing%20Guidance%202020_Final.pdf); and any person using
deterrence methodologies must not
intentionally cause lasting bodily
injury or mortality to the grizzly bear.
All grizzly bear mortalities or
incidents resulting in lasting bodily
injury must be reported to the Service
within 48 hours or as soon as practical
given remote conditions. Authorized
agencies may use additional tools,
including contracted services, as
described in a TLA from, or an MOU with,
the Service. In Tier 2 geographic areas,
excepted deterrence techniques available
to authorized agencies will be
determined by the applicable Federal,
State, or Tribal laws and regulations
(see Table 2, below).
Management activities........ Take associated with management
activities is excepted for authorized
agencies, with prior authorization from
the Service, to avoid human-bear
conflicts, prevent habituation, improve
grizzly bear survival, release or
relocate non-targets, or aid in law
enforcement investigations, given:
efforts are made to eliminate potential
sources of conflict, when applicable and
reasonably possible, by securing
attractants, using deterrence, and/or
live-capturing and releasing the bear
unharmed in a remote area; authorized
agencies may relocate bears as a
preemptive action for the purpose of
preventing conflict that appears
imminent or breaking habituated behavior
of grizzly bears lingering near human-
occupied areas; any relocations shall be
coordinated with the Service and
appropriate land-management agencies;
and lethal control of a grizzly bear
involved in conflict requires prior
authorization from the Service. Annual
reports are due to the Service on or by
February 15.
Incidental take associated In geographic areas and temporal periods
with regulated trapping of defined in a TLA from the Service,
other species. incidental take associated with
regulated trapping of other species is
excepted, provided those activities are
conducted in accordance with Federal,
State, and Tribal laws and regulations.
Annual reports are due to the Service on
or by February 15. Without a TLA from
the Service, or an MOU with the Service
that documents additional Tier 1 or Tier
2 exceptions (see Table 2, below),
incidental take from regulated trapping
of other species would not be excepted
under this 4(d) rule.
------------------------------------------------------------------------
Table 2. Additional take exceptions for individuals and authorized
agencies that may apply to specific geographic areas under Tier 1 and
Tier 2 once the tier's conditions are met and MOUs with the Service are
complete. ``No change'' indicates that there are no additional
provisions provided under the tier for the specified activity, so the
exception described in Table 1 applies.
------------------------------------------------------------------------
Tier 2: Conditions:
management plans and
Tier 1: Conditions: conservation
management plans and strategies are
Exceptions from the conservation finalized,
prohibitions strategies are populations have
finalized and MOU achieved demographic
with service objectives, and MOU
complete with service
complete
------------------------------------------------------------------------
Employees or agents of the No change (See Table No change (See Table
Service; Import and export; 1). 1).
Possession; Interstate or
foreign commerce; Permits;
Scientific, genetic, or
population augmentation
purposes; Defense of life
(self-defense); Disposal of
or salvage a dead grizzly
bear; Incidental take from
research and nonlethal
management of other species
by authorized agencies.
Aiding sick or injured No change (See Table Same as Table 1,
grizzly bears. 1). plus take
associated with
orphaned cubs by
authorized agencies
does not require
prior authorization
from the Service.
Take must be
reported to the
Service within 48
hours or as soon as
practical given
remote conditions.
Deterrence.................. No change (See Table Excepted deterrence
1). techniques for
authorized agencies
will be determined
by the applicable
Federal, State, or
Tribal laws and
regulations.
Management activities....... No change (See Table Take associated with
1). management
activities by
authorized agencies
is excepted under
applicable Federal,
State, and Tribal
laws. Service
oversight,
excluding Service
law enforcement
investigations,
will be carried out
consistent with the
monitoring and
reporting
requirements.
Annual reports are
due to the Service
on or by February
15.
Incidental take associated Incidental take Incidental take is
with regulated trapping of associated with excepted, provided
other species for Tier 1, regulated trapping those activities
or Incidental take for Tier of other species is are conducted in
2. excepted, provided accordance with
trapping is Federal, State, or
conducted in Tribal laws and
accordance with regulations. Annual
Federal, State, or reports are due to
Tribal laws and the Service on or
regulations. Annual by February 15.
reports are due to
the Service on or
by February 15.
------------------------------------------------------------------------
[[Page 44787]]
(1) Import and Export (See (b)(3)(ii) Below)
Federal, State, or Tribal agencies may import live grizzly bears
into the lower-48 States. Additionally, Federal, State, or Tribal
agencies may import or export grizzly bear parts and products for
scientific, cultural, law enforcement, educational or research
purposes. Public zoological institutions (see 50 CFR 10.12) with an MOU
with the Service may import or export live grizzly bears or their parts
and products into or out of the United States. This exception furthers
the conservation of the species by supporting genetic, demographic, or
restoration recovery needs.
(2) Possession (See (b)(3)(iii) Below)
Federal, State, and Tribal agencies with authorization to possess
from the Service may possess, deliver, carry, transport, or ship
grizzly bear parts and products. Public zoological institutions (see 50
CFR 10.12) may possess live grizzly bears (e.g., orphaned cubs)
obtained from the wild after entering into an MOU with the Service.
Museums and other nonprofit institutions with authorization to possess
from the Service may possess, deliver, carry, transport, or ship
grizzly bear parts and products for cultural, education, information,
and outreach purposes. Parts and products may only be possessed by
entities or nonprofit (501(c)(3)) organizations whose primary stated
purposes are cultural, education, or research. Parts and products shall
not be traded, transferred or disposed without prior authorization from
the Service and may not be used in advocacy or lobbying efforts. This
exception furthers the conservation of the species by supporting law
enforcement needs and education efforts intended to improve social
acceptance of the species.
(3) Interstate or Foreign Commerce (See (b)(3)(iv) Below)
A public zoological institution (see 50 CFR 10.12) dealing with
other public zoological institutions may sell grizzly bears or offer
them for sale in interstate or foreign commerce, and may, in the course
of commercial activity, deliver, receive, carry, transport, or ship
grizzly bears in interstate or foreign commerce with prior
authorization from the Service.
(4) Permits (See (b)(3)(v) Below)
Any person may conduct activities as authorized by a permit under
Sec. 17.32. We may under certain circumstances issue permits to carry
out one or more otherwise prohibited activities, including those
described above. The regulations that govern permits for threatened
wildlife state that the Service may issue a permit authorizing any
activity otherwise prohibited with regard to threatened species. These
include permits issued for scientific purposes, to enhance propagation
or survival, for incidental taking, or for special purposes consistent
with the purposes of the Act (50 CFR 17.32). The statute also contains
certain exemptions from the prohibitions, which are found in sections 9
and 10 of the Act.
(5) Scientific, Genetic, or Population Augmentation Purposes (See
(b)(3)(vi) Below)
We propose to except take for authorized agencies to take or
collect samples from grizzly bears in the wild. Designated agents may
live-capture and tag, collar, transport, and release a grizzly bear
consistent with this proposed grizzly bear 4(d) rule and the applicable
TLA or applicable MOU if such action is necessary for scientific,
genetic, or population augmentation purposes. Take that results in a
grizzly bear mortality or grizzly bear lasting bodily injury must be
reported to the Service within 48 hours or as soon as practical given
remote conditions. In the absence of an MOU or TLA, a permit under
Sec. 17.32 is required. This exception furthers the conservation of
the species by supporting genetic, demographic, or restoration
research.
(6) Aiding Sick or Injured Grizzly Bears (See (b)(3)(viii) Below)
We propose to except take for authorized agencies aiding grizzly
bears determined to be sick or injured to the extent they are unable to
effectively move, obtain food, or defend themselves for any length of
time (i.e., lasting bodily harm) if the necessary actions are conducted
in a humane manner. Take associated with orphaned cubs must have prior
authorization from the Service except in geographic areas identified as
Tier 2. In Tier 2 geographic areas, take associated with orphaned cubs
does not require prior authorization from the Service. All take under
this exception, including under Tier 2, must be reported to the Service
within 48 hours or as soon as practical given remote conditions.
(7) Disposal of or Salvage a Dead Grizzly Bear (See (b)(3)(ix) Below)
We propose to except take for authorized agencies to dispose of or
salvage a dead grizzly bear that may be useful for scientific study.
Take associated with disposal or salvage of a dead grizzly bear must be
reported to the Service within 48 hours or as soon as practical given
remote conditions.
(8) Incidental Take From Research and Nonlethal Management of Other
Species by Authorized Agencies (See (b)(3)(x) Below)
We propose to except incidental take by an authorized agency
identified in a TLA from, or an MOU with, the Service for research and
nonlethal management of other species. Although research and non-lethal
management of other species by authorized agencies may result in some
minimal level of take of the grizzly bear, such take is not expected to
rise to a level that will have a negative impact (i.e., will have only
de minimis impacts) on the species' conservation.
(9) Deterrence (See (b)(3)(xi) Below)
We propose to except take caused by conducting deterrence of
grizzly bears for the purposes of avoiding human-bear conflicts or to
discourage bears from using areas near homes and other human-occupied
areas when the deterrence is conducted according to current Service
hazing guidelines. Deterrence means an intentional, nonlethal action to
haze, disrupt, or annoy a grizzly bear out of close proximity to people
or property to promote human safety, prevent conflict, or protect
property. Any person using deterrence methodologies must not
intentionally cause lasting bodily injury to any grizzly bear and must
be undertaken safely and responsibly. Acceptable deterrence techniques
may include, but is not limited to, auditory deterrents, visual
stimuli/deterrents, vehicle threat pressure, bear spray, or soft
projectiles fired from non-powder-actuated launchers intended to break
on contact. Any person may deter a grizzly bear to protect themselves
(e.g., using bear spray or loud noises). Excepted deterrence
methodologies do not include baiting, stalking, or pursuing a grizzly
bear. Authorized agencies may use additional tools for deterrence,
including contracted services, as described in a TLA from, or an MOU
with, the Service. For more information about appropriate nonlethal
deterrents, individuals can contact the Grizzly Bear Recovery Office
for the Service's most current hazing guidelines. By excepting take
from deterring bears away from human-occupied areas, this exception
furthers the conservation of the species by reducing the likelihood of
human-bear conflicts and resulting management actions, such as
removals.
[[Page 44788]]
(10) Management Activities (See (b)(3)(xii) Below)
We propose to except take by authorized agencies for management
activities to prevent and mitigate human-bear conflicts. With prior
authorization from the Service, authorized agencies may relocate
grizzly bears to prevent conflicts, increase survival, prevent
habituation, release or relocate non-targets, or aid in law enforcement
investigations. Under this exception, authorized agencies may lethally
remove grizzly bears involved in conflict with prior authorization from
the Service. Efforts must be made to eliminate potential sources of
conflict, when applicable and reasonably possible, and by mitigating
ongoing conflicts by securing attractants, using deterrence, and/or
live capturing and releasing the bear unharmed in a remote area.
Authorized agencies may relocate grizzly bears as a preemptive action
for the purpose of preventing conflict that appears imminent or
breaking habituated behavior of grizzly bears lingering near human-
occupied areas; any relocations shall be coordinated with the Service
and appropriate land-management agencies; and lethal control of grizzly
bears involved in conflict requires prior authorization from the
Service.
Authorized agencies must submit an annual report to the Service
documenting the location, date, and type of all take resulting in the
capture, relocation, or mortality of a grizzly bear within a calendar
year on or by February 15 of the subsequent year. The Service will
annually review monitoring reports and changes in Federal, State, or
Tribal management to determine whether any change in tier status is
appropriate.
As described below under Additional exceptions for management
activities and incidental take under Tier 1 and Tier 2, and summarized
above in Table 2, once management plans and conservation strategies are
finalized and demographic objectives are achieved, authorized agencies
may enter into an MOU with the Service to obtain additional Tier 2
exceptions associated with management activities.
(11) Incidental Take Associated With Regulated Trapping of Other
Species (See (b)(3)(xiii) Below)
We propose to except incidental take associated with regulated
trapping of other species under the following conditions: (1) take
occurs in geographic areas and temporal periods as defined in a TLA
from the Service; and (2) the trapping of other species is conducted in
accordance with Federal, State, and Tribal laws and regulations. The
TLA from the Service would define the geographic areas and temporal
periods for which this exception would apply. The Service would
consider the best available information, including but not limited to,
current distributions, verified locations outside of current
distributions, known denning seasons within a given geographic area,
verified grizzly bear activity outside of the den during denning
seasons, and potential impacts to populations to define the geographic
areas and temporal periods in the TLA. This will provide flexibility to
ensure that this exception for regulated trapping of other species
applies only in geographic areas where bears are not known to occur or
during temporal periods when bears are likely to be denning. As a
result, we expect that any incidental take due to regulated trapping of
other species to be de minimis. Without a TLA from the Service, or an
MOU with the Service that documents additional Tier 1 or Tier 2
exceptions (see Additional exceptions for management activities and
incidental take under Tier 1 and Tier 2), incidental take from
regulated trapping of other species would not be excepted under this
4(d) rule.
Authorized agencies will continue to receive and operate under TLAs
from the Service, which identify the terms and conditions for take,
monitoring, and reporting by the authorized agencies. The authorized
agencies would be required to submit an annual report to the Service
documenting the location, date, and type of all take that resulted in
the capture, relocation, or mortality of a grizzly bear within a
calendar year on or by February 15 of the subsequent year. Upon receipt
of that report, the Service would issue that agency a TLA for the
following year. As described below under Additional exceptions for
management activities and incidental take under Tier 1 and Tier 2 and
summarized above in Table 2, once management plans and conservation
strategies are finalized for Tier 1, and demographic objectives are
also achieved for Tier 2, authorized agencies may enter into an MOU
with the Service to obtain additional Tier 1 or Tier 2 exceptions
associated with incidental take.
(12) Additional Exceptions for Management Activities and Incidental
Take Under Tier 1 and Tier 2 (See (b)(3)(xiv) Below)
Under this 4(d) rule, we also propose to provide Federal, State,
and Tribal agencies, or authorized agencies, a path to gain additional
exceptions for management activities and incidental take. This tiered
approach incentivizes authorized agencies to proactively develop
adequate regulatory mechanisms in geographic areas where they currently
do not exist to obtain additional exceptions, which may increase their
management flexibilities and reduced permitting requirements for the
associated activities. This approach allows Federal, State, and Tribal
agencies to gain additional management flexibility while providing a
mechanism to identify and address any potential issues to ensure
conservation outcomes are maintained. This tiered approach contributes
to the conservation of the species by incentivizing the development of
regulatory mechanisms through the finalization of management plans and
conservation strategies and may also enhance social tolerance for
grizzly bears--an important consideration as grizzly bears expand into
new areas.
We propose two tiers, Tier 1 and Tier 2, of increasing exceptions
for management activities and incidental take that would provide
authorized agencies additional management flexibilities. Under Tier 1,
after finalizing management plans and conservation strategies,
authorized agencies may enter into an MOU with the Service to gain an
additional exception for incidental take associated with regulated
trapping of other species, provided trapping is conducted in accordance
with Federal, State, or Tribal laws and regulations (Table 2, above).
Tier 1 allows additional take exceptions where a conservation strategy
exists and a Federal, State, or Tribal grizzly bear management plan is
in place, but the associated population has yet to achieve the
demographic objectives defined in the associated conservation strategy.
After finalizing management plans and conservations strategies, and
once populations have achieved demographic objectives, authorized
agencies may enter into an MOU with the Service to gain additional
exceptions under Tier 2 for management activities and incidental take
(Table 2, above). Tier 2 excepts additional management activities and
all incidental take in the relevant Federal, States, or Tribal
jurisdiction, such that the authorized agency has additional management
flexibilities. The respective conditions and monitoring and reporting
requirements of Tier 1 and Tier 2 must be met and an MOU finalized with
the Service for the additional exceptions to apply. Additionally, the
Service would maintain oversight, by reviewing annual monitoring
reports submitted by the
[[Page 44789]]
authorized agencies and may revoke a tier designation if the conditions
are not met. Failure to meet any or all of the conditions described for
Tier 1 and Tier 2, will initiate a review by the Service and may result
in revoking the management tier status of a Federal, State, or Tribal
agency. We may also initiate a review of management tier status, which
could result in revocation, if changes in Federal, State, or Tribal
laws, rules, regulations, or management plans or practices, or other
circumstances depart significantly from the potential to achieve
demographic objectives or mortality thresholds detailed in a
conservation strategy.
Obtaining the additional exceptions under Tier 1 and Tier 2
requires that the authorized agencies complete an MOU with the Service.
These MOUs would identify and formalize the management tier as either
Tier 1 or Tier 2 for a particular geographic area. Where necessary,
MOUs would replace the current TLAs that we provide to authorized
agencies and could be updated throughout the year. Consistent with
TLAs, these MOUs would outline the terms and conditions for take,
define monitoring and reporting requirements, and establish designated
agents from each authorized agency. In addition, these MOUs would
document the Service's determination that conservation strategies and
management plans meet the relevant criteria for a specific management
tier, and identify the management tier for the applicable agency within
a given geographic area described in a conservation strategy (e.g.,
ecosystem). Completed TLAs, MOUs, and maps of the geographic areas
assigned to either Tier 1 or Tier 2 would be available on our website
at https://www.fws.gov/office/grizzly-bear-recovery-program.
Request for MOUs by authorized agencies to the Service may be in
the form of an update to their MOU with the Service for grizzly bear
management, or--for authorized agencies that do not yet have an MOU--a
written request to enter into a new grizzly bear management MOU with
the Service. In either case, the request to enter an MOU or move
between tiers may be made at any time. The Service would determine if
the conditions for the requested management tier had been met.
Signature of the MOU by the Service would represent the Service's
determination that the relevant requirements to change management tiers
had been met and would officially mark the transition of management and
incidental take to the exceptions in the new tier for that authorized
agency. We first summarize additional detail regarding Tier 1 and then
Tier 2 below:
(a) Tier 1
Tier 1 provides additional exceptions for incidental take
associated with regulated trapping of other species by expanding the
area in which incidental take exceptions apply to include areas where
Federal, State, or Tribal agencies have adopted conservation strategies
and management plans as specified and approved in a current MOU with
the Service (Table 2, above). Conservation strategies and management
plans must describe population management mechanisms necessary to
achieve and maintain populations. This added flexibility incentivizes
States and Tribes to ensure the adequacy of regulatory mechanisms.
Therefore, we do not expect take to rise to a level that would have a
negative impact (i.e., would have only de minimis impacts) on the
species' conservation. Authorized agencies must submit an annual report
to the Service documenting the location, date, and type of all take
resulting in the capture, relocation, or mortality of a grizzly bear
within a calendar year on or by February 15 of the subsequent year. The
Service will annually review monitoring reports and changes in
management and retains the ability to revoke Tier 1 designations if
changes in Federal, State, or Tribal laws, rules, regulations, or
management plans or practices, or any other circumstances depart
significantly from the potential to achieve demographic objectives or
mortality thresholds detailed in a conservation strategy. The MOU
between the Service and State, Federal, or Tribal agencies will
identify Tier 1 geographic areas, along with designated agents and
terms and conditions, and will be available on our website at https://www.fws.gov/office/grizzly-bear-recovery-program.
(b) Tier 2
Tier 2 provides additional exceptions for management actions and
incidental take to Federal, State, or Tribal agencies in geographic
areas where populations have achieved demographic objectives as
identified in interagency conservation strategies, and where
conservation strategies and management plans have been adopted, as
specified and approved in a current MOU with the Service. These
additional exceptions would increase management flexibilities, such
that States and Tribes could assume most broad day-to-day management
for grizzly bears according to applicable State and Tribal laws. This
approach allows States and Tribes to gain additional management
flexibilities, which may enhance social tolerance for grizzly bears,
while providing a mechanism to identify and address any potential
issues to ensure conservation outcomes are maintained. If conservation
outcomes are not maintained, as determined through monitoring and
reporting requirements, Tier 2 designations could be reduced to Tier 1
or revoked. Therefore, we do not expect take to rise to a level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation.
Under Tier 2, authorized agencies must submit an annual report to
the Service for a given geographic area documenting the location, date,
and type of all take resulting in the capture, relocation, or mortality
of a grizzly bear within a calendar year on or by February 15 of the
subsequent year. Additionally, this report must include demographic
monitoring reports. The Service will annually review monitoring reports
and changes in management and retains the ability to revoke a Tier 2
designation if: (1) conservation strategy-defined demographic
objectives or mortality thresholds are not maintained; (2) or if any
change in State or Tribal laws, rules, regulations, or management plans
or practices, or other circumstances depart significantly from the
specifics of population management detailed in the conservation
strategy. The MOU between the Service and State, Federal, or Tribal
agency will identify Tier 2 geographic areas, along with designated
agents and terms and conditions. We will post completed MOUs with a map
that identifies Tier 2 geographic areas on our website at https://www.fws.gov/office/grizzly-bear-recovery-program.
The proposed 4(d) rule provides for the conservation of the grizzly
bear because it will regulate activities that may pose a threat to the
species. However, it also provides flexibilities in management and
reduced permitting requirements for several activities. Where there is
a Federal nexus, the 4(d) rule does not change any obligations under
section 7 of the ESA. Please see our ``Consideration of Economic
Impacts of the Grizzly Bear 4(d) Rule'' on https://www.regulations.gov
for our consideration of economic impacts. After considering the
conservation needs of the species and the economic impacts of the 4(d)
rule, we have determined the 4(d) rule is necessary and advisable to
provide for the conservation of the species. We appreciate any public
comment on the potential impacts (conservation and economic) of the
proposed 4(d) rule.
[[Page 44790]]
Required Determinations
Clarity of the Rule
We are required by Executive Order (E.O.) 12866 and E.O. 12988 and
by the Presidential memorandum of June 1, 1998, to write all rules in
plain language. This means each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel we have not met these requirements, send us comments by
one of the methods listed in ADDRESSES. To better help us revise the
rule, your comments should be as specific as possible. For example, you
should tell us the numbers of the sections or paragraphs that are
unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget will review all
significant rules. E.O. 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the Nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. E.O. 13653 directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements. OIRA has determined this rule is
significant under section 3(f)(4) of E.O. 12866. To support our
necessary and advisable determination for 4(d) rules, we developed an
economic considerations document that describes how implementation of
the provisions in the proposed 4(d) rule may result in any economic
impacts due to changes in current baseline protections. We have not
quantified the impacts of the implementation of the 4(d) rule but
expect any economic costs or benefits to be minimal. However, the
proposed regulatory framework of the proposed 4(d) rule would allow for
additional exceptions to prohibitions (Tier 1 or Tier 2). Though we
have not quantified the economic effects of these exceptions at this
time, we anticipate these exceptions would provide potential cost
savings by reducing regulatory burden through the provisions outlined
under Tier 1 and Tier 2.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II
of Pub. L. 104-121, March 29, 1996), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects 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 the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying the rule
will not have a significant economic impact on a substantial number of
small entities.
While we do not conduct RFA analyses on our classification
determinations under the Act, in accordance with recent caselaw (Kansas
Natural Resources Coalition, et al. v. USFWS, et al. 780 F. Supp. 3d
650 (W.D. Tex. 2025)) we comply with RFA through consideration of
conservation and economic impacts when promulgating 4(d) rules. Under
the RFA, as amended, and as understood in light of recent court
decisions, Federal agencies are required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself; in other words, the RFA does not require
agencies to evaluate the potential impacts to indirectly regulated
entities.
Some of the actions regulated by the proposed 4(d) rule are likely
to involve Federal action agencies. 4(d) rules do not alter any
obligations for Federal agencies under section 7 of the Act. Federal
agencies, in consultation with the Service, are required to ensure that
any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirements. Consequently, it is our position
that only Federal action agencies would be directly regulated during
section 7 consultations (regardless of what is prohibited in 4(d)
rules). The RFA does not require evaluation of the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities.
Please see our ``Consideration of Economic Impacts of the Grizzly
Bear 4(d) Rule'' on https://www.regulations.gov for our consideration
of economic impacts. The revised 4(d) rule would result in minimal
changes to the regulated community regarding import, export, and
intrastate or foreign commerce of the grizzly bear. Federal, State and
Tribal agencies would retain all existing exceptions related to import
and export of grizzly bears and obtain additional exceptions for these
activities. The requirement for public zoological institutions to
establish an MOU with the Service in order to possess live grizzly
bears obtained from the wild or import or export live grizzly bears or
their parts and products into or out of the lower-48 States is not
expected to have a significant economic impact on these entities, as
most public zoological institutions currently housing live grizzly
bears already have MOUs with the Service. There is also little
difference in the regulation of interstate and foreign commerce of
grizzly bears in the revised 4(d) rule. Zoological institutions dealing
with other public zoological institutions would need prior
authorization from the Service to sell grizzly bears or offer them for
sale in interstate or foreign commerce. In addition, public zoological
institutions would need an MOU with the Service to possess live grizzly
bears (e.g. orphaned cubs) obtained from the wild. We have no record of
any public zoological institution having exported grizzly bears for any
purpose, including foreign commerce. Furthermore, we are not aware of
any interstate commerce between public zoological institutions or of
any Federal, State or Tribal authority selling grizzly bears in
interstate commerce and we presume these types of activities are
extremely rare. Finally, take and acts with illegally taken individuals
would continue to be prohibited under the revised 4(d) rule. In
addition, current informal approval and reporting processes would be
formalized in the revised 4(d) rule and a few provisions would expand
to extend exceptions to individuals, zoos,
[[Page 44791]]
museums and other entities or non-profit organizations. Overall, the
revised 4(d) rule would result in reduced regulatory requirements
associated with take of the grizzly bear in the lower-48 United States
(e.g., State, Tribal, and Federal conservation and management actions
and individual deterrence actions). Further, the revised 4(d) rule
would not compel or require any action on the ground to be undertaken
at any time by anyone. The reasonably foreseeable effects that may
result from promulgating or revising a 4(d) rule that extends some or
all of the section 9 prohibitions are administrative (application or
lack of application for a permit or authorization under the Act). We
certify that, if adopted as proposed, this proposed rule would not have
a significant economic impact on a substantial number of small
entities. We request information (see Information Requested) to ensure
we fully understand the potential small-entity impacts of this proposed
rule.
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use--Executive Order 13211
Executive Order 13211 requires agencies to prepare statements of
energy effects ``to the extent permitted by law'' when undertaking
actions identified as significant energy actions (66 FR 28355; May 22,
2001). E.O. 13211 defines a ``significant energy action'' as, among
other things, an action that (i) meets the definition of a
``significant regulatory action'' under E.O. 12866; and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy. This rule is not a significant regulatory action under
E.O. 12866. Therefore, this action is not a significant energy action,
and there is no requirement to prepare a statement of energy effects
for this action.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
This rule will not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on State,
local, or Tribal governments or the private sector.
(a) As discussed above under Regulatory Flexibility Act, this rule
is not likely to have a significant economic effect on a substantial
number of small entities.
(b) The regulations do not require a small government agency plan
or any other requirement for expending local funds.
(c) Any costs incurred from the reporting requirement to notify the
Service of any take of a grizzly bear as a result of defense of life
are expected to be rare in occurrence and would only result in minor
burden.
(d) The rule clarifies and improves upon the current regulations
allowing greater management flexibilities based on the condition of the
species within a management area.
(e) This rule will not produce a Federal mandate of $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Government Actions and Interference With Constitutionally Protected
Private Property Rights--Executive Order 12630
In accordance with E.O. 12630, this proposed rule would not have
significant takings implications. We have determined the rule has no
potential takings of private property implications as defined by this
Executive Order because this proposed 4(d) rule would, with exceptions,
maintain the regulatory status quo regarding activities currently
allowed under the Endangered Species Act. A takings implication
assessment is not required.
Federalism--Executive Order 13132
In accordance with E.O. 13132, this proposed 4(d) rule does not
have significant federalism effects. A federalism summary impact
statement is not required. This rule would not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of powers and
responsibilities among the various levels of government.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988, the Office of the
Solicitor has determined the rule does not unduly burden the judicial
system and it meets the requirements of sections 3(a) and 3(b)(2) of
the Order. We have proposed a 4(d) rule in accordance with the
provisions of the Act. To assist the public in understanding the
conservation needs of the species, the proposed rule identifies the
prohibitions and exceptions to those prohibitions that are necessary
and advisable to the conservation of the species.
Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et seq.)
This proposed rule contains new collections of information that
require approval by the Office of Management and Budget (OMB) under the
PRA. 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. We will ask OMB to review and
approve the information collection requirements contained in this
rulemaking related to revising the protective regulations for the
grizzly bear in the lower-48 States under section 4(d) of the Act.
Additional information collection requirements associated with
importing or exporting, possession, delivery, carriage, transport, or
shipment of taken grizzly bears; interstate or foreign commerce in the
course of commercial activity; and selling or offering for sale in
interstate or foreign commerce are currently approved under the
following:
OMB Control No. 1018-0092, Federal Fish and Wildlife
Applications and Reports--Law Enforcement; 50 CFR 13 and 14 (expires
05/31/2026, and in accordance with 5 CFR 1320.10, an agency may
continue to conduct or sponsor this collection of information while the
submission is pending at OMB), and
OMB Control No. 1018-0093, Federal Fish and Wildlife
Permit Applications and Reports--Management Authority; 50 CFR 13, 15,
16, 17, 18, 22, 23 (expires 12/31/2026).
There are no forms associated with this information collection. Our
proposed regulations under section 4(d) of the ESA, as amended, impose
information collection requirements on the States, certain Federally
recognized Tribal governments, and public zoological institutions as
described below (Federal agencies are exempt from the PRA):
1. MEMORANDUMS OF UNDERSTANDING (MOUs)--This proposed 4(d) rule
provides authorized agencies a path to gaining additional flexibilities
by achieving certain benchmarks and entering into an MOU with the
Service. This includes the requirement that agencies obtain prior
authorization from the Service for conflict removals, as described in
an MOU between the Service and authorized agency. Authorized agencies
may relocate bears as a preemptive action to prevent conflict that
appears imminent or in an attempt to break the habituated behavior of
grizzly bears lingering near human-occupied areas. When a grizzly bear
is captured, the employee will consult with the appropriate land
management agency to determine a relocation site that is most suitable
for the bear, considering age and sex of the bear, conflict history,
and current human use at available
[[Page 44792]]
relocation sites. Such taking must be coordinated with the Service as
described in a current MOU between the Service and the authorized
agency.
The Service would enter into MOUs with authorized agencies to
authorize more flexible grizzly bear management and with public
zoological institutions to allow for specific types of conservation
related activities consistent with this 4(d) rule. The Service does not
expect to enter into MOUs with local governments or authorities. We are
not reporting burden for Federal agencies as they are exempt from the
requirements of the PRA. The Service would collect information from the
relevant agencies in relation to these MOUs as described below.
2. MANAGEMENT PLANS/CONSERVATION STRATEGIES--This proposed 4(d)
rule outlines a tiered framework where take exceptions for grizzly bear
management activities and incidental take are linked to a population's
demographic status and the status of conservation strategies and
Federal, State, or Tribal management plans. This framework would
provide for the conservation of the species by tailoring take
exceptions for populations with conservation strategies and management
plans that have been approved by the Service through an MOU, such that
otherwise prohibited activities are expected to have negligible impacts
to grizzly bear populations. This would incentivize conservation
actions and promote increased public tolerance and support for
conservation efforts.
a. Management Plan--Federal, State, or Tribal wildlife management
agencies develop this document to define how they plan to manage
grizzly bears. These plans should include specifics on conflict
management, population management, and adherence to associated
conservation strategies.
b. Conservation Strategy--This is an interagency document
describing the habitat and population management mechanisms that will
achieve and maintain demographic and habitat objectives; it will remain
in place after grizzly bears are no longer listed under the Act; and it
will demonstrate the adequacy, continuity, and continued agency
application of population and habitat management regulatory mechanisms
in order to maintain populations. These documents are prepared by
Federal, State, and Tribal agencies engaged in grizzly bear management
within a given geographic area as part of their grizzly bear recovery
efforts and are not a requirement of the proposed 4(d).
3. AMENDMENTS TO MANAGEMENT TIERS--Authorized agencies involved in
grizzly bear management may gain additional flexibilities by entering
into an MOU with the Service, where an agency may request the
additional exceptions under Tier 1 or Tier 2 once they present evidence
that the criteria required for the requested tier have been met. This
request may be in the form of an update to their MOU with the Service
for grizzly bear management, or--for authorized agencies that do not
yet have an MOU--a request to enter into a new grizzly bear management
MOU with the Service. In either case, the request to enter an MOU or
move between tiers may be made at any time. The Service would determine
if the requestor, and the relevant geographic area, met the conditions
specified in this rule for the requested management tier.
Signature of the MOU by the parties would represent the Service's
determination that the relevant requirements to change management tiers
had been met and would officially mark the transition of management
activities and incidental take to the exceptions in the new tier for
that authorized agency within that particular geographic area over
which they have jurisdiction. Authorized agencies in Tier 1 or Tier 2
will be required to submit reports associated with applicable
demographic monitoring on or by February 15 of the subsequent year.
Upon receipt and review of this report, the Service will renew the MOU,
or issue a new MOU for agencies moving up to Tier 1 or Tier 2, for the
following year (see reporting requirements below).
4. ACTIONS REQUIRING PRIOR AUTHORIZATION FROM THE SERVICE--
a. Import and Export--Federal, State, or Tribal agencies may import
live grizzly bears into the lower-48 United States. Public zoological
institutions (see 50 CFR 10.12) with an MOU with the Service may import
or export live grizzly bears or their parts and products into or out of
the United States. Federal, State, or Tribal agencies may import or
export grizzly bear parts and products for scientific, cultural, law
enforcement, educational, or research purposes.
b. Possession--Federal, State, and Tribal agencies with
authorization to possess from the Service may possess, deliver, carry,
transport, or ship grizzly bear parts and products. Public zoological
institutions (see 50 CFR 10.12) with an MOU with the Service may
possess live grizzly bears (e.g. orphaned cubs) obtained from the wild.
Museums, and other nonprofit institutions with authorization to possess
from the Service may possess, deliver, carry, transport, or ship
unlawfully or lawfully taken grizzly bear parts and products for
cultural, education, information, and outreach purposes.
c. Interstate or Foreign Commerce--A public zoological institution
(see 50 CFR 10.12) dealing with other public zoological institutions
may sell grizzly bears or offer them for sale in interstate or foreign
commerce, and may, in the course of commercial activity, deliver,
receive, carry, transport, or ship grizzly bears in interstate or
foreign commerce with prior authorization from the Service.
d. Take of Orphaned Cubs--Take associated with orphaned cubs must
have prior authorization from the Service except in areas where the
Tier 2 set forth under paragraph (b)(3)(xiv)(D) applies. Take must be
reported to the Service within 48 hours or as soon as practical given
remote conditions.
e. Relocation of Grizzly Bears--With prior authorization from the
Service, except in areas where Tier 2 under paragraph (b)(3)(xiv)(D)
applies, authorized agencies may relocate grizzly bears to prevent
conflicts, increase survival, or to break a habituated behavior, and
may lethally remove a bear in certain situations considering the age
and sex of the bear, nature of the conflict, and the bear's conflict
history.
f. Management of Grizzly Bears--Take associated with management
activities is excepted for authorized agencies, with prior
authorization from the Service, except in areas where Tier 2 under
paragraph (b)(3)(xiv)(D) applies, to avoid human-bear conflicts,
prevent habituation, improve grizzly bear survival, release or relocate
non-targets, or aid in law enforcement investigations, given:
1. Efforts are made to eliminate potential sources of conflict,
when applicable and reasonably possible, by securing attractants, using
deterrence, and/or live-capturing and releasing the bear unharmed in a
remote area.
2. Authorized agencies may relocate bears as a preemptive action
for the purpose of preventing conflict that appears imminent or
breaking habituated behavior of grizzly bears lingering near human-
occupied areas.
3. Any relocations shall be coordinated with the Service and
appropriate land-management agencies.
4. Lethal control of a grizzly bear involved in conflict requires
prior authorization by the Service.
5. REPORTING REQUIREMENTS--
a. Mortalities/Bodily Injury--Mortalities or suspected lasting
bodily
[[Page 44793]]
injury must be reported to the Service as described in a current TLA
from, or an MOU with, the Service.
1. Take Resulting in Grizzly Bear Mortality--Take that results in a
grizzly bear mortality must be reported to the Service within 48 hours,
or as soon as practical given remote conditions.
2. Take Resulting in Grizzly Bear Lasting Bodily Injury--Take that
results in a grizzly bear lasting bodily injury must be reported to the
Service within 48 hours, or as soon as practical given remote
conditions.
b. Moving Grizzly Bears--Designated agents may move a grizzly bear
to aid recovery or increase the genetic health of the population after
notification to the Service.
c. Defense of Life--Any person may take a grizzly bear in defense
of their own life or the lives of others. Grizzly bears taken in self-
defense or in defense of human life must be reported by the person who
has taken the bear or their designee within 48 hours of occurrence or
as soon as practical given remote conditions. Take must be reported to
the Office of Law Enforcement, U.S. Fish and Wildlife Service, in the
appropriate region (see 50 CFR 2.2 for regional office information),
and to appropriate State and Tribal authorities.
d. Annual Report--Agencies receiving a TLA from or entering into an
MOU with the Service will submit an annual report to the Service
documenting the location, date, and type of all excepted take that
resulted in the capture, relocation, or mortality of a grizzly bear
within a calendar year on or by February 15 of the subsequent year, at
which point the Service will issue that agency a TLA.
e. Monitoring--Agencies must submit an annual report to the Service
documenting the location, date, and type of all take resulting in the
capture, relocation, or mortality of a grizzly bear within a calendar
year on or by February 15 of the subsequent year.
6. APPOINTMENT OF DESIGNATED AGENT--A designated agent is an
employee of a Federal, State, or Tribal agency who as part of their
official duties, normally handles carnivores, and when acting in the
course of their official duties, may engage in actions that result in
take of the grizzly bear in the lower-48 United States consistent with
the proposed 4(d) rule.
Title of Collection: Endangered and Threatened Wildlife--Grizzly
Bear (50 CFR 17.40).
OMB Control Number: 1018-New.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: State and Tribal governments.
Total Estimated Number of Annual Respondents: 45.
Total Estimated Number of Annual Responses: 73.
Estimated Completion Time per Response: Varies from 30 to 60
minutes, depending on activity.
Total Estimated Number of Annual Burden Hours: 66.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion for authorizations/amendments/
appointment of designated agent; annually or on occasion for reporting
requirements.
Total Estimated Annual Non-hour Burden Cost: None.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to [email protected]. Please reference ``RIN 1018-BI14/OMB
Control No. 1018-NEW Grizzly'' in the subject line of your comments.
National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et
seq.)
We are analyzing this proposed rule in accordance with NEPA
criteria, the Department of the Interior regulations on Implementation
of the National Environmental Policy Act (43 CFR part 46), and the
Department of the Interior Manual (516 DM 1).
We invite the public to comment on the extent to which this
proposed rule may have a significant impact on the human environment or
fall within one of the categorical exclusions for actions that have no
reasonably foreseeable effects on the quality of the human environment
that would require further analysis under NEPA. We will complete our
analysis, in compliance with NEPA, before finalizing these proposed
regulations.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and
Coordination with Indian Tribal Governments), the President's
memorandum of November 30, 2022 (Uniform Standards for Tribal
Consultation; 87 FR 74479, December 5, 2022), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. In accordance with
Secretary's Order (SO) 3206 of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act), we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge Tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes. In accordance with joint SO 3403
A1 of November 30, 2022, we recognize our responsibility to ensure our
decisions with respect to wildlife safeguard the interests of
potentially affected Tribes. We previously solicited information from
Tribes to inform the development of our SSA report, but we did not
receive any responses. Additionally, we did not receive any comments
from Tribes in response to our January 15,
[[Page 44794]]
2025, proposal. We will inform and consult affected Tribes regarding
this proposed rulemaking, and continue to coordinate with affected
Tribes during the development of any final rules for the grizzly bear.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Grizzly Bear Recovery Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.40 by revising paragraph (b) to read as follows:
Sec. 17.40 Species-specific rules--mammals.
* * * * *
(b) Grizzly bear (Ursus arctos horribilis)--
(1) Definitions. As used in in paragraph (b) of this section:
Authorized agency means a Federal, State, or Tribal agency
designated by the U.S. Fish and Wildlife Service in a memorandum of
understanding (MOU) or Technical Letter of Assistance (TLA) to assist
in implementing all or part of the specified actions in paragraph
(b)(3) of this section.
Conservation Strategy means an interagency document detailing the
habitat and population management mechanisms that will achieve and
maintain demographic and habitat objectives, which would include
mortality thresholds; remain in place after grizzly bears are no longer
listed under the Act; and demonstrates the adequacy, continuity, and
continued agency application of population and habitat management
regulatory mechanisms in order to maintain populations.
Designated Agent means an employee of an authorized agency, who, as
a part of their official duties, normally handles large carnivores, and
when acting in the course of their official duties, may engage in
actions that result in take consistent with this rule.
Deterrence means an intentional, nonlethal action to haze, disrupt,
or annoy a grizzly bear out of close proximity to people or property to
promote human safety, prevent conflict, or protect property, and does
not cause death or lasting bodily injury to the grizzly bear.
Grizzly bear means any member of the species Ursus arctos
horribilis within the lower-48 States, as described in 50 CFR 17.11(h),
including any part, offspring, dead body, part of a dead body, or
product of such species.
Grizzly bear involved in conflict means a grizzly bear that has
caused substantial property damage, obtained anthropogenic foods not
associated with bear-baiting (e.g., pet food, livestock feed, garbage),
killed or injured lawfully present livestock, domestic animals in
proximity to human-occupied areas, or working dogs, damaged beehives,
breached an intact structure or electrified perimeter to obtain fruit
or crops (e.g., greenhouse, garden, orchard, field, stackyard or grain
bin), shown repeated and persistent signs of habituation in proximity
to human-occupied areas (e.g., has been repeatedly hazed or previously
relocated), exhibited aggressive behavior (i.e., not acting in defense
of offspring or food or in response to a surprise encounter), or has
been involved in a human-grizzly encounter resulting in human injury or
loss of human life.
Habituation means the decrease of an animal's flight response
following repeated exposure to inconsequential stimuli.
Human food-conditioned bear means a bear that has learned to
associate people, human activities, human-use areas, or food storage
receptacles with anthropogenic food as a result of repeatedly accessing
anthropogenic foods without negative consequences.
Human-occupied areas means any structures or areas currently used
or inhabited by humans (e.g., homes, residential areas, occupied
campgrounds or trailheads, job sites).
Incidental take means take that is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity; it must
be unintentional and not due to negligent conduct. The act of taking a
grizzly bear that is wrongfully or mistakenly identified as another
species is not considered incidental take and may be referred to
appropriate authorities for prosecution.
Lasting bodily injury/injured means any permanent damage or injury
that limits a grizzly bear's ability to effectively move, obtain food,
or defend itself for any length of time.
Livestock means cattle, sheep, pigs, horses, mules, goats, domestic
bison, alpacas, llamas, and donkeys. Livestock excludes poultry, bees,
and dogs (working or otherwise) not in close proximity to human-
occupied areas or to lawfully present livestock.
Management Plan means a document developed by a Federal, State, or
Tribal wildlife management agency detailing their agency's grizzly bear
management program that will support the long-term viability of the
species and is consistent with current interagency conservation
strategies or other multi-state or multi-agency agreements.
Management Tier means one of two tiers, Tier 1 and Tier 2, which
would be defined in an MOU between an authorized agency and the
Service. Tier 1 and Tier 2 identify additional exceptions to take
associated with Federal, State, or Tribal management and regulated
trapping of other species provided for a particular geographic area
once conservation strategies and Federal, State, or Tribal management
plans are finalized for Tier 1 and demographic objectives are also met
for Tier 2.
Memorandum of Understanding (MOU) means a document Federal, State,
or Tribal agencies may enter into with the Service to authorize
additional exceptions for grizzly bear management consistent with the
two management tiers (Tier 1 and Tier 2) under this rule. Public
zoological institutions will also need an MOU to accept wild grizzly
bears.
Mortality threshold means a level of annual mortality established
in a conservation strategy to help ensure the grizzly bear population
within a given geographic area remains above a minimum population size.
Mortality thresholds are expressed as a percent of the population,
pertain to mortality from all sources, and include overall mortality as
well as independent female and male mortality levels.
Non-target means a grizzly bear (a) caught during a conflict
capture and handling effort that is not the bear responsible for the
specific conflict, or (b) captured during research efforts directed at
another species.
Occupied Range means an estimate of the roughly contiguous area
within which bears have established residency or have demonstrated
habitat use. Estimated occupied range represents a minimum known area
of occupancy. It does not include occasional forays outside the
estimated range or low-density peripheral areas and therefore
[[Page 44795]]
does not represent the total known extent of occurrences.
Prior authorization from the Service means a representative from
the U.S. Fish and Wildlife Service, as specified in a current MOU, or
TLA, has agreed with the proposed management action prior to the action
being taken.
Self-Defense means a person acting to protect themselves, or any
other individual, from bodily harm.
Sick means affected with disease or ill health.
Technical Letter of Assistance (TLA) means a letter issued by the
Service describing and clarifying terms and conditions for take by
authorized agencies.
Tier 1 means the first of two management tiers that applies where
authorized agencies have adopted conservation strategies and Federal,
State, or Tribal management plans that have been approved by the
Service through an MOU, but populations have yet to reach demographic
objectives as specified in a conservation strategy.
Tier 2 means the second of two management tiers that applies where
authorized agencies have adopted conservation strategies and Federal,
State, or Tribal management plans that have been approved by the
Service through an MOU, and where populations have met demographic
objectives as specified in a conservation strategy.
(2) Prohibitions. With the exception of designated experimental
population areas for the grizzly bear where grizzly bears have been
reintroduced and the species is subject to the prohibitions specified
for grizzly bear experimental populations in Sec. 17.84, the following
prohibitions that apply to endangered wildlife also apply to grizzly
bear in the lower-48 States. Except as provided under paragraph (b)(3)
of this section and Sec. Sec. 17.4 and 17.5, 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 cause to be
committed, any of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife. This includes take associated with mistaken identity (e.g.,
while black bear hunting). The act of taking a grizzly bear that is
wrongfully identified as another species is prohibited and may be
referred to appropriate authorities for prosecution.
(iii) Possession, delivery, carriage, transport, or shipment of
unlawfully or lawfully taken grizzly bears.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(3) Exceptions from prohibitions. The following exceptions to the
prohibitions apply to the grizzly bear in the lower-48 States:
(i) Employees or agents of the U.S. Fish and Wildlife Service--
Notwithstanding Sec. 17.21(c)(1), and unless otherwise specified, any
employee or agent of the Service may, when acting in the course of
their official duties, take a grizzly bear.
(ii) Import and Export--Except as provided in paragraphs
(b)(3)(ii)(A-C) of this section, no person shall import or export any
grizzly bear into the lower-48 United States.
(A) Federal, State, or Tribal agencies may import live grizzly
bears into the lower-48 States.
(B) Public zoological institutions (see 50 CFR 10.12) with an MOU
with the Service may import or export live grizzly bears or their parts
and products into or out of the lower-48 States.
(C) Federal, State, or Tribal agencies may import or export grizzly
bear parts and products for scientific, cultural, law enforcement,
educational, or research purposes.
(iii) Possession--Except as provided in paragraphs (b)(3)(iii)(A-C)
of this section, no person shall possess a grizzly bear in the lower-48
States.
(A) Federal, State, and Tribal agencies with authorization to
possess from the Service may possess, deliver, carry, transport, or
ship parts and products of grizzly bears.
(B) Public zoological institutions (see 50 CFR 10.12) with an MOU
with the Service may possess live grizzly bears (e.g., orphaned cubs)
obtained from the wild.
(C) Museums and other nonprofit institutions with authorization to
possess from the Service may possess, deliver, carry, transport, or
ship grizzly bear parts and products for cultural, education,
information, and outreach purposes. Parts and products may only be
possessed by entities or nonprofit (501(c)(3)) organizations whose
primary stated purposes are cultural, education or research. Parts and
products shall not be traded, transferred, or disposed without prior
authorization from the Service and may not be used in advocacy or
lobbying efforts.
(iv) Interstate or foreign commerce--A public zoological
institution (see 50 CFR 10.12) dealing with other public zoological
institutions may sell grizzly bears or offer them for sale in
interstate or foreign commerce, and may, in the course of commercial
activity, deliver, receive, carry, transport, or ship grizzly bears in
interstate or foreign commerce with prior authorization from the
Service.
(v) Permits--Any person may conduct activities as authorized by a
valid permit under Sec. 17.32.
(vi) Scientific, genetic, or population augmentation purposes--An
authorized agency may collect samples from a grizzly bear in the wild.
Additionally, any designated agent may live-capture and tag, collar,
and transport a grizzly bear consistent with this grizzly bear 4(d)
rule and a current TLA or MOU if such action is necessary for
scientific, genetic, or population augmentation purposes. The following
conditions apply to this exception:
(A) Take that results in a grizzly bear mortality or grizzly bear
lasting bodily injury must be reported to the Service within 48 hours
or as soon as practical given remote conditions.
(B) In the absence of an MOU or TLA, a permit under Sec. 17.32 is
required.
(vii) Defense of life--Any person may take a grizzly bear in
defense of their own life or the lives of others. Grizzly bears taken
in self-defense or in defense of human life must be reported by the
person who has taken the bear or their designee within 48 hours of
occurrence or as soon as practical given remote conditions. Take must
be reported to the Office of Law Enforcement, U.S. Fish and Wildlife
Service, in the appropriate region (see 50 CFR 2.2 for regional office
information), and to appropriate State and Tribal authorities. The
grizzly bear may only be retained, disposed of, or salvaged with the
consent of, and consistent with directions from, the Office of Law
Enforcement.
(viii) Aiding sick or injured grizzly bears--Take is excepted for
authorized agencies aiding grizzly bears determined to be sick or
injured to the extent they are unable to effectively move, obtain food,
or defend themselves for any length of time (i.e., lasting bodily harm)
if the necessary actions are conducted in a humane manner. Take
associated with orphaned cubs must have prior authorization from the
Service except in geographic areas where Tier 2 set forth under
paragraph (b)(3)(xiv)(D) applies. Take must be reported to the Service
within 48 hours or as soon as practical given remote conditions.
(ix) Disposal of or salvage of a dead grizzly bear--Take is
excepted for authorized agencies to dispose of a dead grizzly bear or
salvage a dead grizzly bear that may be useful for scientific study.
Take must be reported to the Service within 48 hours or as soon as
practical given remote conditions.
[[Page 44796]]
(x) Incidental take from research and nonlethal management of other
species by authorized agencies--Incidental take associated with
research and nonlethal management of other species by an authorized
agency identified in a TLA from, or an MOU with, the Service is
excepted.
(xi) Deterrence--Take in the form of harassment is excepted for
individuals to conduct deterrence of grizzly bears for the purposes of
avoiding human-bear conflicts or to discourage bears from using areas
near homes and other human-occupied areas under the following
conditions:
(A) Any deterrence must be conducted in accordance with the
Service's grizzly bear hazing guidelines.
(B) Any person using deterrence methodologies must not
intentionally cause lasting bodily injury or mortality to the grizzly
bear.
(C) All grizzly bear mortalities or incidents resulting in lasting
bodily injury must be reported to the Service within 48 hours or as
soon as practical given remote conditions.
(D) Authorized agencies may use additional tools, including
contracted services, as described in a TLA, or an MOU with the Service.
(E) In geographic areas under Tier 2, as set forth in paragraph
(b)(3)(xiv)(D), additional exceptions for deterrence techniques will be
determined by the applicable Federal, State, or Tribal laws and
regulations.
(xii) Management activities--Take associated with management
activities is excepted for authorized agencies, with prior
authorization from the Service, to avoid human-bear conflicts, prevent
habituation, improve grizzly bear survival, release or relocate non-
targets, or aid in law enforcement investigations, given:
(A) Efforts are made to eliminate potential sources of conflict,
when applicable and reasonably possible, by securing attractants, using
deterrence, and/or live-capturing and releasing the bear unharmed in a
remote area.
(B) Authorized agencies may relocate bears as a preemptive action
for the purpose of preventing conflict that appears imminent or
breaking habituated behavior of grizzly bears lingering near human-
occupied areas.
(C) Any relocations shall be coordinated with the Service and
appropriate land-management agencies.
(D) Lethal control of a grizzly bear involved in conflict requires
prior authorization from the Service.
(E) Monitoring and reporting requirements for management
activities--Authorized agencies must submit an annual report to the
Service documenting the location, date, and type of all take resulting
in the capture, relocation, or mortality of a grizzly bear within a
calendar year on or by February 15 of the subsequent year. The Service
will annually review monitoring reports and changes in Federal, State,
or Tribal management.
(xiii) Incidental take associated with regulated trapping of other
species--In geographic areas and temporal periods defined in a TLA from
the Service, incidental take associated with regulated trapping of
other species is excepted, provided those activities are covered by the
TLA and conducted in accordance with Federal, State, and Tribal laws
and regulations.
(A) The Service will consider the best available information,
including but not limited to, current distributions, verified locations
outside of current distributions, known denning seasons within a given
geographic area, verified grizzly bear activity outside of the den
during denning seasons, and potential impacts to populations to define
the geographic areas and temporal periods in the TLA.
(B) Monitoring and reporting requirements for incidental take
exceptions--Authorized agencies must submit an annual report to the
Service documenting the location, date, and type of all take resulting
in the capture, relocation, or mortality of a grizzly bear within a
calendar year on or by February 15 of the subsequent year. The Service
will annually review monitoring reports and changes in Federal, State,
or Tribal management.
(xiv) Additional exceptions for management activities and
incidental take under Tier 1 and Tier 2--Additional take exceptions
related to Federal, State, and Tribal grizzly bear management
activities and incidental take under this rule will be determined in
accordance with either Tier 1 or Tier 2 as defined by this rule.
(A) Federal, State, and Tribal agencies responsible for grizzly
bear management may request Tier 1 or Tier 2 status from the Service
for a particular geographic area within their jurisdiction if they meet
the following conditions:
(1) Conditions for Tier 1: The following conditions must be in
place for the Service to approve a request from a Federal, State, or
Tribal agency for Tier 1 status:
(a) An MOU with the Service that: documents the Service's
determination that an associated conservation strategy and Federal,
State, or Tribal management plan meet the relevant criteria for a
specific management tier (including appropriate population management
mechanisms in accordance with this rule); identifies the management
tier for the applicable agency within a given geographic area;
establishes designated agents; outlines terms and conditions for take;
and defines monitoring and reporting requirements.
(2) Conditions for Tier 2: The following conditions must be in
place for the Service to approve a request from a Federal, State, or
Tribal agency for Tier 2 status:
(a) An MOU with the Service that: documents the Service's
determination that an associated conservation strategy and Federal,
State, or Tribal management plan meet the relevant criteria for a
management tier (including appropriate population management mechanisms
in accordance with this rule); identifies the management tier for the
applicable agency within a given geographic area; establishes
designated agents; outlines terms and conditions for take; and defines
monitoring and reporting requirements; and
(b) The grizzly bear population defined in the MOU has achieved
demographic objectives identified in the conservation strategy.
(B) For agencies that are in Tier 1 or Tier 2, failure to meet any
or all of the conditions described for Tier 1 and Tier 2 as set forth
in paragraph (b)(3)(xiv)(A), will initiate a review by the Service and
may result in the Service revoking their management tier status. The
Service may also initiate a review if any change in Federal, State, or
Tribal laws, rules, regulations, or management plans or practices, or
other circumstances depart significantly from the potential to achieve
demographic objectives or mortality thresholds detailed in a
conservation strategy.
(C) Tier 1--The following additional exceptions apply to geographic
areas identified in an MOU with the Service as Tier 1.
(1) Management activities excepted under Tier 1--Take associated
with management activities is excepted under the same conditions set
forth in paragraph (b)(3)(xii).
(2) Incidental take associated with regulated trapping of other
species excepted under Tier 1--Incidental take associated with
regulated trapping of other species is excepted, provided trapping is
conducted in accordance with Federal, State, or Tribal laws and
regulations.
(3) Monitoring and reporting requirements under Tier 1--Authorized
agencies must submit an annual report to the Service documenting the
location, date, and type of all take resulting in the capture,
relocation, or mortality of a grizzly bear within a calendar year on or
[[Page 44797]]
by February 15 of the subsequent year. The Service will annually review
monitoring reports and changes in Federal, State, or Tribal management.
(4) The Service may revoke Tier 1 designations for the following
reasons:
(a) If changes in Federal, State, or Tribal laws, rules,
regulations, or management plans or practices depart significantly from
objectives detailed in a conservation strategy;
(b) If substantial grizzly bear mortality associated with
incidental take or management actions occurs in areas within the
occupied range but where specific mortality thresholds do not exist.
(D) Tier 2--The following exceptions apply to geographic areas
identified in an MOU with the Service as Tier 2.
(1) Management activities excepted under Tier 2--Take associated
with management activities is excepted under applicable Federal, State,
and Tribal laws and regulations.
(a) Excepted deterrence techniques will be determined by the
applicable Federal, State, or Tribal laws and regulations.
(b) When aiding sick or injured grizzly bears, authorized agencies
may take orphaned cubs without prior authorization from the Service.
(c) Service oversight, excluding Service law enforcement
investigations, will be carried out consistent with the monitoring and
reporting requirements for Tier 2 set forth below in paragraph
(b)(3)(xiv)(D)(3).
(2) Incidental take excepted under Tier 2--Incidental take is
excepted, provided those activities are conducted in accordance with
Federal, State, or Tribal laws and regulations.
(3) Monitoring and reporting requirements under Tier 2--Authorized
agencies must submit an annual report to the Service for a given
geographic area documenting the location, date, and type of all take
resulting in the capture, relocation, or mortality of a grizzly bear
within a calendar year on or by February 15 of the subsequent year.
Additionally, this report must include demographic monitoring reports.
The Service will annually review monitoring reports and changes in
Federal, State, or Tribal management.
(4) The Service may revoke Tier 2 designations for the following
reasons:
(a) The population falls below demographic objectives identified in
the conservation strategy for one year;
(b) Occupancy of females with young falls below objectives set
forth in strategies or plans;
(c) Female mortality exceeds thresholds for two consecutive years;
(d) Overall mortality exceeds thresholds for two consecutive years;
or
(e) Changes in Federal, State, or Tribal laws, rules, regulations,
or management plans or practices, or other circumstances depart
significantly from the potential to achieve demographic objectives or
mortality thresholds detailed in a conservation strategy.
* * * * *
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2026-14450 Filed 7-15-26; 11:15 am]
BILLING CODE 4333-15-P