04-11740. Withdrawal of Regulations Governing Incidental Take Permit Revocation

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), withdraw the regulations in part 17 of title 50 of the Code of Federal Regulations (CFR) regarding the revocation of incidental take permits issued under the authority of the Endangered Species Act (ESA). On December 11, 2003, the U.S. District Court for the District of Columbia in Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D.D.C.), invalidated 50 CFR 17.22(b)(8) and 17.32(b)(8), the regulations addressing Service authority to revoke incidental take permits under certain circumstances. The court ruled that we did not follow the public notice and comment procedures required by the Administrative Procedure Act (APA). This rule affects only 50 CFR 17.22(b)(8) and 17.32(b)(8). In the Proposed Rules section of today's Federal Register is a rulemaking proposal to reestablish the provisions of 50 CFR 17.22(b)(8) and 17.32(b)(8).

DATES:

This rule is effective May 25, 2004.

ADDRESSES:

The complete file for this rule is available, by appointment, during normal business hours, at 4401 North Fairfax Drive, Room 420, Arlington, VA 22203. You may call 703/358-2171 to make an appointment to view the files.

FOR FURTHER INFORMATION CONTACT:

Rick Sayers, Chief, Branch of Consultation and Habitat Conservation Planning, at 4401 North Fairfax Drive, Room 420, Arlington, VA 22203 (Telephone [phone], Facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION:

This rule applies to the U.S. Fish and Wildlife Service only. Therefore, the use of the terms “Service” and “we” in this notice refers exclusively to the U.S. Fish and Wildlife Service.

This rule applies only to 50 CFR 17.22(b)(8) and 17.32(b)(8), which pertain to revocation of incidental take permits. Regulations in 50 CFR 17.22(c) and 17.32(c) that pertain to Safe Harbor Agreements (SHAs) and in 50 CFR 17.22(d) and 17.32(d) that pertain to Candidate Conservation Agreements with Assurances (CCAAs) are not affected by this final rule.

Background

On June 12, 1997 (62 FR 32189), we published proposed revisions to our general permitting regulations in 50 CFR part 13 to identify the situations in which permit provisions in part 13 would not apply to individual incidental take permits. On June 17, 1999 (64 FR 32706), we published final regulations that included a provision, hereafter referred to as the Permit Revocation Rule, that described circumstances under which incidental take permits could be revoked. The Permit Revocation Rule, which was codified at 50 CFR 17.22(b)(8) (endangered species) and 17.32(b)(8) (threatened species), provided that an incidental take permit “may not be revoked * * * unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been remedied in a timely fashion.” The criterion in 16 U.S.C. 1539(a)(2)(B)(iv)—that “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild”—is substantially identical to the definition of “jeopardize the continued existence of” in the joint Department of the Interior/Department of Commerce regulations implementing section 7 of the Endangered Species Act (50 CFR 402.02). In essence, the Permit Revocation Rule authorized the Service to revoke an incidental take permit if continuation of the permitted activity would jeopardize the continued existence of the listed species and the jeopardy situation is not remedied in a timely fashion. On September 30, 1999 (64 FR 52676), we published a correction to the regulations promulgated in our June 17, 1999 (64 FR 32706), final rule; however, the correction was not associated with permit revocation.

On February 11, 2000 (65 FR 6916), we published a request for additional public comment on specific regulatory changes included in the June 17, 1999 (64 FR 32706), final rule, including the Permit Revocation Rule. Based on our review of the comments we received in response to the February 11, 2000 (65 FR 6916), request for comments, we published a notice on January 22, 2001 (66 FR 6483), that affirmed the provisions of the June 17, 1999 (64 FR 32706), final rule, including the Permit Revocation Rule.

The plaintiffs in Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D.D.C.), challenged the validity of the Permit Revocation Rule. On December 11, 2003, the court ruled that the public notice and comment procedures followed by the Service when promulgating the Permit Revocation Rule were in violation of the APA. The court vacated and remanded the Permit Revocation Rule to the Service for further consideration consistent with section 553 of the APA. In compliance with the court's order, we therefore withdraw the Permit Revocation Rule (50 CFR 17.22(b)(8) and 17.32(b)(8)).

Effective Date

In accordance with 5 U.S.C. 553(d)(3), we find good cause to make this rule effective upon publication. Moreover, in accordance with 5 U.S.C. 553(b)(3)(B), we find good cause that notice and public procedure for this rulemaking action are impracticable, unnecessary, or contrary to the public interest. We must remove the text identified in this rule from 50 CFR 17 because the December 11, 2003, court order in Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D.D.C.) vacated this text.

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Regulation Promulgation

For the reasons set out in the preamble, we amend title 50, chapter I, subchapter B of the Code of Federal Regulations, as set forth below.

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

§ 17.22

[Amended]

2. Amend § 17.22 by removing paragraph (b)(8).

§ 17.32

[Amended]

3. Amend § 17.32 by removing paragraph (b)(8).

Dated: April 12, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.