[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Rules and Regulations]
[Pages 71723-71731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27202]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT64


Endangered Species Act Incidental Take Permit Revocation 
Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule describes circumstances in which the U.S. Fish and 
Wildlife Service may revoke incidental take permits issued under 
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended. 
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 had 
adopted those regulations without adequately complying with the public 
notice and comment procedures required by the Administrative Procedure 
Act (APA) and remanded the regulations to us for further proceedings 
consistent with the APA. On May 25, 2004, we published in the Federal 
Register a final rule withdrawing the permit revocation regulations 
vacated by the court's order (69 FR 29669). On that same date we 
requested public comment on our proposal to reestablish the permit 
revocation regulations (69 FR 29681).

DATES: This rule is effective January 10, 2005.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Division of 
Consultation, Habitat Conservation Planning, Recovery and State Grants, 
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, 
Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Rick Sayers, Chief, Branch of 
Consultation and Habitat Conservation Planning, at the above address 
(Telephone 703/358-2106, Facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION: This notice of rulemaking 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) and 17.32(b), which 
pertain to incidental take permits. Regulations in 50 CFR 17.22(c) and 
17.32(c), which pertain to Safe Harbor Agreements (SHAs), and in 50 CFR 
17.22(d) and 17.32(d), which pertain to Candidate Conservation 
Agreements with Assurances (CCAAs), are not affected by this rule.

Background

Promulgation of the ``Permit Revocation Rule''

    The Service administers a variety of conservation laws that 
authorize the issuance of permits for otherwise prohibited activities. 
In 1974, we published 50 CFR part 13 to consolidate the administration 
of various permitting programs. Part 13 established a uniform framework 
of general administrative conditions and procedures that would govern 
the application, processing, and issuance of all Service permits. We 
intended the general part 13 permitting provisions to be in addition 
to, and not in lieu of, other more specific permitting requirements of 
Federal wildlife laws.
    We subsequently added many wildlife regulatory programs to title 50 
of the CFR. For example, we added part 18 in 1974 to implement the 
Marine Mammal Protection Act; modified and expanded part 17 in 1975 to 
implement the Endangered Species Act (ESA) of 1973, as amended (16 
U.S.C. 1531 et seq.); and added part 23 in 1977 to implement the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES). The regulations in these parts contain their own 
specific permitting requirements that supplement the general permitting 
provisions of part 13.
    With respect to the ESA, the combination of the general permitting

[[Page 71724]]

provisions in part 13 and the specific permitting provisions in part 17 
has worked well in most instances. However, the Service has found that, 
in some areas of permitting policy under the Act, the ``one size fits 
all'' approach of part 13 has been inappropriately constraining and 
narrow. Incidental take permitting under section 10(a)(1)(B) of the ESA 
is one such area.
    On June 12, 1997 (62 FR 32189), we published proposed revisions to 
our general permitting regulations in 50 CFR part 13 to identify, among 
other things, the situations in which the permit provisions in part 13 
would not apply to individual incidental take permits. On June 17, 1999 
(64 FR 32706), we published a final set of regulations that included 
two provisions that relate to revocation of incidental take permits. 
The first provides that the general revocation standard in 50 CFR 
13.28(a)(5) will not apply to several types of ESA permits, including 
incidental take permits. The second provision, hereafter referred to as 
the Permit Revocation Rule, 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), 
clarified 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 section 10(a)(2)(B)(iv) of the ESA (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 
one of the statutory criteria that incidental take permit applicants 
must meet in order to obtain a permit. The criterion 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 ESA (50 CFR 402.02).
    On February 11, 2000 (65 FR 6916), we published a request for 
additional public comment on several specific regulatory changes 
included in the June 17, 1999, final rule (64 FR 32706), including the 
Permit Revocation Rule. Based on our review of the comments we received 
in response to the February 11, 2000, 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 ``No Surprises'' Rule Litigation and the Order To Vacate the Permit 
Revocation Rule

    On February 23, 1998 (63 FR 8859), the Service and the National 
Marine Fisheries Service, which also issues ESA incidental take 
permits, jointly promulgated the No Surprises Rule. The No Surprises 
Rule provides certainty to holders of incidental take permits by 
placing limits on the agencies' ability to require additional 
mitigation after an incidental take permit has been issued. The No 
Surprises Rule is codified by the Service at 50 CFR 17.22(b)(5) 
(endangered species) and 17.32(b)(5) (threatened species) and by the 
National Marine Fisheries Service at 50 CFR 222.307(g). For both 
agencies, the No Surprises Rule was added to pre-existing regulations 
pertaining to incidental take permits.
    In July 1998, a group of environmental plaintiffs challenged the No 
Surprises Rule in Spirit of the Sage Council v. Norton, Civil Action 
No. 98-1873 (D. D.C.). The Service promulgated the Permit Revocation 
Rule on June 17, 1999 (64 FR 32706). The plaintiffs subsequently 
amended their complaint to challenge the Permit Revocation Rule. The 
government explained in its briefs that the ESA itself authorizes the 
Service to revoke incidental take permits, and that the Rule simply 
confirmed that the Service would employ its statutory authority if the 
need arose.
    On December 11, 2003, the court ruled that the Service had violated 
the public notice and comment procedures of the APA when promulgating 
the Permit Revocation Rule. The court did not rule on the substantive 
validity of the Permit Revocation Rule. The court vacated and remanded 
the Permit Revocation Rule to the Service for further consideration 
consistent with section 553 of the APA. The court did not rule on the 
validity of the No Surprises Rule, but found that the Permit Revocation 
Rule is relevant to the court's review of the No Surprises Rule. The 
court, therefore, ordered the Service to consider the No Surprises Rule 
together with the Permit Revocation Rule in any new rulemaking 
proceedings concerning revocation of incidental take permits containing 
No Surprises assurances. On May 25, 2004, we published in the Federal 
Register a final rule (69 FR 29669) withdrawing the permit revocation 
regulations vacated by the court's order. On that date, we also 
published a proposal to issue new permit revocation regulations (69 FR 
29681). On June 10, 2004, the court further ordered the Service to 
complete the rulemaking on the new revocation rule no later than 
December 10, 2004, and to refrain from approving new incidental take 
permits or related documents containing ``No Surprises'' assurances 
until we have completed all proceedings remanded by the court's 
December 11, 2003, order.
    The government complied with the court's orders with this 
rulemaking action. The Service published a notice in the Federal 
Register on May 25, 2004, requesting public comment on proposed new 
permit revocation regulations (69 FR 29681). We requested comments on 
the proposed rule and its interrelationship with the No Surprises Rule 
(63 FR 8859). With this rule, we establish revocation regulations for 
incidental take permits at 50 CFR 17.22(b)(8) and 17.32(b)(8). In 
addition, the National Marine Fisheries Service has determined that the 
court's orders require no further action by the National Marine 
Fisheries Service.

Summary of Previously Received Comments

    As stated in the proposed rule, we previously received comments on 
the Permit Revocation Rule in response to our Federal Register notice 
of February 11, 2000 (65 FR 6916). We addressed these comments in our 
affirmation of the final rule published in the Federal Register on 
January 22, 2001 (66 FR 6483). Because we received some of the same or 
similar comments in response to our request for public comment on our 
proposal of this rule, our response to comments below encompasses both 
the current and previous comments regarding incidental take permit 
revocation.

Summary of Comments Received

    On May 25, 2004, we proposed to reestablish the Permit Revocation 
Rule as originally promulgated on June 17, 1999 (64 FR 32706). In our 
request for public comment on the proposed regulations, we specifically 
invited public comment on the following issues:
    1. The proposal to reestablish the Permit Revocation Rule. This 
rule would allow the Service to revoke an incidental take permit as a 
last resort in the unexpected and unlikely situation in which 
continuation of the permitted activities would likely jeopardize the 
continued existence of the species covered by the permit and the 
Service is not able to remedy the situation through other means in a 
timely fashion.
    2. The interrelationship of the Permit Revocation Rule and the No 
Surprises Rule, including whether the revocation standard in the Permit 
Revocation Rule is appropriate in light of the regulatory

[[Page 71725]]

assurances contained in the No Surprises Rule.
    3. Whether the revocation standard in 50 CFR 13.28(a)(5) or some 
other revocation standard would be more appropriate for incidental take 
permits with No Surprises assurances.
    The comment period closed on July 26, 2004. We received 
approximately 250 comments on our proposed rule from a variety of 
entities, including the National Marine Fisheries Service, two States, 
one Tribe, several county and other local agencies, conservation 
groups, industry and trade associations, and private individuals. Among 
the comments were several that questioned the Service's compliance with 
the APA and one that described difficulty understanding the proposal. 
We address these two issues under General Issues below. The remainder 
of the comments raised specific issues that are summarized below and 
discussed in detail, along with the Service's responses, under Specific 
Issues below.
    Because most of the comments we received covered similar issues and 
many of them were form letters, we grouped the comments according to 
issues. The comments ranged widely, but generally fell into three 
categories: (1) the permit revocation regulations are appropriate as 
proposed; (2) the permit revocation regulations inappropriately limit 
when the Service can revoke incidental take permits; and (3) the permit 
revocation regulations are overly protective of listed resources and 
undermine the regulatory certainty provided by the No Surprises Rule. 
In addition to comments on the proposed regulations and the 
interrelationship of the proposed regulations and the No Surprises 
Rule, we also received numerous comments on the No Surprises Rule, 
habitat conservation planning, and specific Habitat Conservation Plans 
that are beyond the narrow scope of this particular rulemaking on the 
permit revocation regulations. While these comments are beyond the 
scope of this particular rulemaking and are not addressed here, we will 
retain this information for consideration in any future revisions of 
guidance, policy, or rules governing Habitat Conservation Planning and 
No Surprises assurances.
    Most commenters who responded during this comment period supported 
the permit revocation regulations as proposed. Many of these commenters 
stated they thought it appropriate for the permit revocation standard 
to be the same as for permit issuance (i.e., based on the criterion in 
section 10(a)(2)(B)(iv) of the ESA (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''). Many stated the proposed 
regulations allow for meaningful implementation of the No Surprises 
Rule in the context of Habitat Conservation Plans and associated 
incidental take permits. Many of these commenters stated that applying 
the general permit revocation standard at 50 CFR 13.28(a)(5) is 
inappropriate in the context of the No Surprises Rule and undercuts the 
very notion of regulatory certainty by expanding the conditions under 
which permits may be revoked. Additionally, some of these commenters 
stated they found it appropriate for the Service to step in with 
additional funding, lands, or other resources in the event a species 
was jeopardized as a result of any ``unforeseen circumstance.'' These 
commenters did not view such a situation as burdensome for the Service 
or taxpayers, citing a number of potential funding sources and other 
opportunities.
    Numerous commenters expressed concern that the permit revocation 
regulations inappropriately limit when permits may be revoked (i.e., 
the regulations are not adequately protective of listed resources). 
Some of these commenters recommended revision of: (1) The No Surprises 
Rule; (2) the proposed permit revocation regulations; (3) the general 
permitting regulations at 50 CFR 13; or (4) some combination of these 
regulations. Some of these commenters objected to ``boilerplate'' 
language included in incidental take permits that provided the same No 
Surprises assurances to all permittees. Some of these commenters were 
concerned that the Service would be unable to revoke a permit if the 
permittee was unwilling to make monitoring, management, or other 
changes under an adaptive management plan or was otherwise out of 
compliance with the permit. These commenters: (1) Questioned why the 
old provision at 50 CFR 13.28(a)(5) should be replaced with a standard 
they viewed as less protective; (2) requested the word ``shall'' rather 
than ``may'' be used to indicate that revocation is not discretionary; 
(3) questioned why the Service should have to step in at public expense 
to remedy jeopardy situations before a permit can be revoked; (4) 
questioned what the standard ``in a timely fashion'' means or requested 
this term be further defined; (5) suggested that the revocation 
provision should also contain a reference to adverse modification of 
critical habitat; and (6) recommended that the word ``jeopardy'' be 
used instead of ``appreciable reduction in the likelihood of survival 
and recovery'' because the commenter viewed ``jeopardy'' to be a higher 
standard.
    A few commenters stated the permit revocation regulations 
undermined the No Surprises Rule (i.e., the regulations are overly 
protective of listed resources). The commenters requested: (1) the 
Service reaffirm that permit revocation should be ``an action of last 
resort;'' and (2) the Service limit permit revocation to instances 
where the permittee is not in compliance with the permit (i.e., no 
permit revocation even if a species would be jeopardized by the 
continuation of activities covered under the permit as long as the plan 
is being properly implemented).
    The vast majority of commenters, regardless of the three categories 
into which they fell, expressed the view that the No Surprises Rule and 
concomitant permit revocation regulations are effective incentives that 
are responsible for the large increase in the number of non-federal 
landowners who have chosen to participate in the Habitat Conservation 
Planning program.

General Issues

    Issue: We received several comments on the public notice process in 
which the commenters viewed the Service's decision to repropose the 
same regulations that were vacated by the court as a violation of APA 
procedural requirements. These commenters felt the Service should have 
proposed permit revocation regulations that differed from those 
promulgated in the June 17, 1999, final rule (64 FR 32706) and the 
January 22, 2001, affirmation of the final rule (66 FR 6483). A few 
commenters thought the proposed rule ``deprived the public of 
meaningful notice,'' lacked sufficient explanation of the specific 
issues on which we were soliciting comments, and ``cannot be 
interpreted to fairly apprise interested persons of the subjects and 
the issues.'' Some of these commenters thought the Service should have 
provided more explanation of the differences between the proposed rule 
and the revocation standard in the general permitting regulations 
(i.e., 50 CFR 13.28(a)(5)).
    Response: We considered the revocation standard at 50 CFR 
13.28(a)(5), but thought this standard was not appropriate given the 
plain language of section 10(a)(2)(B)(iv) of the ESA (16 U.S.C. 
1539(a)(2)(B)(iv)). We reviewed the No Surprises assurances provided at 
50 CFR 17.22(b)(5) and 17.32(b)(5) and came to the conclusion that the 
proposed rule appropriately describes the point at which permit

[[Page 71726]]

revocation should occur for a properly implemented HCP. Therefore, we 
reproposed the same regulations that were vacated, explaining our 
reasoning and soliciting public comment. In its comments, the National 
Marine Fisheries Service agreed that the revocation standard contained 
in the proposed rule was appropriate. Our intent to clarify the 
relevant standards for revocation of incidental take permits was well 
described in the proposed rule, and the record of events that led to 
this rulemaking was well chronicled. In our proposal we specifically 
invited the public to comment on the appropriateness of the proposed 
standard and if they thought the revocation standards at 50 CFR 
13.28(a)(5) or some other standard was more appropriate. Through this 
rulemaking process we have complied with the procedural requirements 
and the intent of the APA.
    Issue: One commenter found it difficult to understand the proposed 
rule and ``found the publication in the Federal Register to be totally 
inadequate for even an ``informed citizen'' to understand the intent of 
the proposal or the historical precedents which required this rules 
process.''
    Response: The historical events that led to this rulemaking were 
well described in the proposal. Our intent was to clarify relevant 
standards for revocation of incidental take permits and solicit public 
comment on the appropriateness of the proposed standard. Based on the 
number of significant comments we received, the content of the proposal 
adequately described the historical precedents and the intent of the 
proposal.

Specific Issues

    In this section we address specific issues relevant to the permit 
revocation regulations and the interrelationship of the permit 
revocation regulations and the No Surprises Rule that were raised by 
commenters.
    Issue: Several commenters viewed the proposed revocation 
regulations coupled with No Surprises assurances as an inadequate 
standard to protect species. To remedy the perceived inadequacy, some 
of these commenters provided recommendations for revisions of the No 
Surprises Rule, the regulations governing incidental take permit 
revocation, or both. Suggested revisions generally included 
conditioning permits to allow for periodic evaluation in effectiveness, 
modifying the plan to incorporate new scientific information or changed 
conditions, and requiring performance bonds to ensure accountability. A 
couple of commenters requested that the Addendum to the HCP Handbook, 
the so-called Five Point Policy (65 FR 35242), be promulgated as a 
regulation. Some of these commenters objected to ``boilerplate'' 
language included in incidental take permits that they thought provided 
the same level of No Surprises assurances to all permittees. They 
viewed this approach as inadequate to achieve regulatory assurances 
commensurate with the level of scientific rigor underlying the HCP, the 
level of uncertainty regarding the conservation of the species, and the 
duration of the associated incidental take permit. A couple of 
commenters thought there should be flexibility in the level of 
assurances provided and that the Service should negotiate the level of 
assurances and the conditions for permit revocation on a case-by-case 
basis.
    Response: We address these comments together, because the concerns 
raised are related to several aspects of permit issuance and 
revocation. In order to provide a clear response to this suite of 
issues, we begin by summarizing the permit process, specifically permit 
issuance criteria and the No Surprises Rule. In order for an applicant 
to receive an incidental take permit with No Surprises assurances, the 
Service must receive commitments from the applicant. The specific 
commitments vary widely and are unique to each plan, but generally the 
applicant must submit a Habitat Conservation Plan (HCP) that, among 
other things, includes measures to minimize and mitigate impacts and 
ensures adequate funding to implement the proposed plan. The HCP must 
support findings that the amount of incidental take of species covered 
by the plan and included on the incidental take permit will not 
appreciably reduce the likelihood of the survival and recovery of the 
species in the wild. In addition to these findings and other issuance 
criteria in section 10(a)(2)(B) of the ESA that must be met, an 
applicant must demonstrate that (1) the species are adequately covered 
by the plan, (2) the plan has included provisions for changed 
circumstances and unforeseen circumstances, and (3) the applicant has 
ensured funding for changed circumstances. Changed circumstances are 
changes affecting a species or geographic area covered by an HCP that 
can reasonably be anticipated and planned for by plan developers and 
the Service. Unforeseen circumstances are changes affecting a species 
or geographic area covered by a conservation plan that could not 
reasonably have been anticipated by plan developers and the Service at 
the time of the conservation plan's negotiation and development, and 
that result in a substantial and adverse change in the status of the 
covered species.
    Most commenters' concerns and suggested revisions to the No 
Surprises Rule or the permit revocation rule are already addressed in 
guidance developed jointly by the Service and the National Marine 
Fisheries Service in the form of an addendum to the HCP Handbook 
published on June 1, 2000, known as the ``Five Point Policy'' (65 FR 
35242). The Five Point Policy provides clarifying guidance for the 
Service's and the National Marine Fisheries Service's administration of 
the incidental take permit program and for those applying for an 
incidental take permit. The Five Point Policy is considered agency 
policy, and the Service is fully committed to its implementation.
    As described in the Five Point Policy, an HCP applicant must 
identify biological goals and objectives of the plan and must develop 
an operating conservation program (i.e., conservation management 
activities expressly agreed upon and described in the HCP and 
implemented as part of the plan) to achieve these goals and objectives. 
As part of the operating conservation program, the applicant must 
develop a management plan with an appropriate level of flexibility, 
such as an adaptive management plan, and a monitoring program to assess 
the effectiveness of the management plan and other conservation 
measures being implemented under the operating conservation program. If 
all issuance criteria have been met, the duration of the permit is then 
determined by considering a number of factors, including the period of 
time over which the permittee's activities will occur, the reliability 
of information underlying the HCP, the length of time necessary to 
implement and achieve the benefits of the operating conservation 
program, the extent to which the program incorporates adaptive 
management strategies, and the level of biological uncertainty 
associated with the plan. In general, a long permit duration is likely 
to require a comprehensive adaptive management plan and minimal 
biological uncertainty.
    The Five Point Policy also extends the minimum public comment 
period for most HCPs based on the complexity of the proposed plans. 
This increased public comment period assists the Service and the 
applicant in gathering information that may have been missed during the 
development of the HCP.

[[Page 71727]]

    Through this process, an applicant, with assistance from the 
Service, develops an HCP that includes periodic review, modification to 
the plan to accommodate new scientific information, and funding that is 
assured through a variety of means, including performance bonds, all of 
which are mutually agreed upon in the operating conservation program 
developed to implement the plan. Rather than negotiate a different set 
of assurances and a different set of revocation criteria for each 
incidental take permit, the Service chose a threshold approach, where 
the applicant only receives No Surprises assurances for species that 
are adequately covered by the HCP. Determinations as to whether a 
species is adequately covered by a plan are made on a case by case 
basis, a process in which the Service considers the scientific rigor 
underlying the particular plan and any uncertainty associated with the 
plan and its operating conservation program as described above, and 
then ensures that appropriate monitoring, reporting, modification, and 
funding measures are included, and determines the appropriate duration 
of the permit and what type and amount of take, if any, can be 
authorized for each species.
    Once a permit is issued, the permittee must properly implement the 
plan (i.e., fully implement all commitments and provisions agreed to in 
the HCP, associated Implementing Agreement (if any), and incidental 
take permit) to receive No Surprises assurances and the assurance that 
permit revocation would be an ``action of last resort.'' This approach, 
which includes planning for change and contingencies, but uses one 
revocation standard for all, leads to greater consistency in our 
implementation of the Habitat Conservation Planning program while 
taking into account the unique circumstances associated with each plan.
    Issue: One State and numerous other commenters expressed concern 
regarding the Service's ability to revoke a permit under the proposed 
permit revocation regulations if a permit holder is not in compliance 
with their permit and under what timeframe this action would occur.
    Response: Nothing in the permit revocation regulations, including 
the provisions in 50 CFR 17.22(b)(8) and 17.32(b)(8) precludes the 
Service from suspending and, if necessary, revoking an incidental take 
permit if the permittee fails to comply with any of the terms and 
conditions of the incidental take permit. First, section 10(a)(2)(C) of 
the ESA provides that the Service ``shall revoke'' an incidental take 
permit if the Service ``finds that the permittee is not complying with 
the terms and conditions of the permit.'' Moreover, Sec. Sec.  
17.22(b)(8) and 17.32(b)(8) of the regulations state that the 
revocation provisions in 50 CFR 13.28(a)(1)-(4) apply to incidental 
take permits. Under these regulations, if a permittee is not properly 
implementing the HCP (for example, if the permittee is not adhering to 
the agreed-upon adaptive management program and monitoring regime or is 
not funding the operating conservation program as agreed), then the 
Service can suspend the permit (50 CFR 13.27(a)). And if the permittee 
fails within 60 days to correct deficiencies that were the cause of a 
permit suspension, then the Service can revoke the permit under 50 CFR 
13.28(a)(2).
    Issue: A few commenters were concerned that the Service would be 
unable to take any action if a permittee is in compliance with the 
plan, but the plan is not working as expected (i.e., a substantial and 
adverse change in the status of a covered species has occurred) and the 
permittee is unwilling to modify the plan (i.e., make monitoring, 
management, or other changes to the operating conservation program).
    Response: The No Surprises Rule places limits on the Service's 
ability to require additional measures to respond to changes in 
circumstances after an incidental take permit is issued. It does not, 
however, affect the Service's revocation authority under the ESA. So 
long as the permittee is complying with the terms and conditions of the 
plan, the No Surprises Rule allows the Service to require additional 
conservation and mitigation measures of the permittee to respond to 
unforeseen circumstances; however, such measures must be limited to 
modifications of the conservation plan's operating conservation program 
that do not involve the commitment of additional land, water, or 
financial compensation or restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the HCP. The No Surprises Rule thus provides latitude to make 
changes to the plan as long as no additional cost (i.e., land, water, 
funding, or other resources) is required of the permittee. However, the 
Service's revocation authority under the ESA allows the Service to 
revoke an incidental take permit even if the permittee is in compliance 
with the terms and conditions of the permit, if the permitted activity 
would appreciably reduce the likelihood of the survival and recovery of 
the species in the wild. This permit revocation rule does not create or 
change this authority, but describes the circumstances under which the 
Service would exercise it.
    Issue: Some commenters did not see why the old provision in 50 CFR 
13.28(a)(5) should be replaced with a standard they viewed as less 
protective. They viewed the proposed incidental take permit revocation 
standard and the general permitting standard at Sec.  13.28(a)(5) as 
significantly different. Some of these commenters viewed the general 
permitting revocation standard that allows the Service to revoke an 
incidental take permit when the ``population(s) of the wildlife or 
plant that is the subject of the permit declines to the extent that 
continuation of the permitted activity would be detrimental to 
maintenance or recovery of the affected population,'' as the 
appropriate standard. A couple of these commenters thought the Service 
should be able to revoke incidental take permits if they are found to 
impair a species' long-term recovery, not just their short-term 
survival. A couple of commenters requested the word ``shall'' rather 
than ``may'' be used in the rule to indicate that revocation is not 
discretionary.
    Response: We think that the standard for revocation of a permit 
should be the same as the standard for issuing the permit. In its 
comments, the National Marine Fisheries Service agreed that this 
standard for revocation was appropriate. When Congress amended the ESA 
in 1982 to create the HCP permit program, it clearly indicated that the 
relevant focus would be at the species level. Section 13.28(a)(5) 
predates the 1982 amendments and focuses only on the wildlife 
population in the permitted area. We therefore believe that it is 
appropriate to replace Sec.  13.28(a)(5) with a provision that more 
accurately reflects the congressional intent behind the 1982 
amendments. The timeframes ``short-term'' and ``long-term'' referred to 
by the commenter in reference to survival and recovery of species are 
not applicable here and are not a condition imposed on the Service for 
permit revocation. Under the new revocation provision, a permit may be 
revoked if effects to a population of a species affected by the 
permitted activity are determined to appreciably reduce the likelihood 
of survival and recovery of the species in the wild regardless of the 
time period over which this decline in the species' status is expected 
to take. In the unlikely event that an activity covered by a properly 
implemented incidental take permit is found likely to appreciably 
reduce the likelihood of the survival and recovery of any listed 
species in the wild and the problem cannot be corrected through

[[Page 71728]]

the unforeseen circumstances procedure of 50 CFR 17.22(b)(5)(iii) or 50 
CFR 17.32(b)(5)(iii) or the additional actions provisions of 50 CFR 
17.22(b)(6) or 50 CFR 17.32(b)(6), the Service will, as a matter of 
last resort, undertake the revocation procedures as described in 50 CFR 
13.28(b) and 50 CFR 13.29.
    The new revocation provision established in Sec. Sec.  17.22(b)(8) 
and 17.32(b)(8) is written in a manner that indicates when revocation 
is not permissible instead of when it is. As a result, the suggestion 
that the word ``may'' be changed to ``shall'' is not practical. In 
addition, decisions involving permit revocation are fact-intensive and 
will require the exercise of discretion on the part of the agency. It 
is therefore questionable whether permit revocation standards can be 
described as being mandatory versus discretionary. We decline to 
substitute ``shall'' for ``may'' in the rule as the regulations are 
phrased to describe only those circumstances under which revocation is 
permissible within the agency's discretion.
    Issue: Several commenters recommended that the word ``jeopardy'' be 
used instead of ``appreciable reduction in the likelihood of survival 
and recovery'' because the commenters viewed ``jeopardy'' to be a 
higher standard.
    Response: The revocation standard in Sec. Sec.  17.22(b)(8) and 
17.32(b)(8) is effectively the same as the jeopardy standard. As stated 
in the background section of this publication, the criterion at section 
10(a)(2)(B)(iv) of the ESA (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 ESA (50 CFR 402.02). The Service is 
required to avoid jeopardizing the continued existence of any listed 
species under section 7 of the ESA and would do so by revoking the 
incidental take permit if other actions to avoid the jeopardy are not 
available.
    Issue: A couple of commenters suggested that the revocation 
provision should also contain a reference to adverse modification of 
critical habitat.
    Response: We do not see the need to add a reference to adverse 
modification of critical habitat. The statutory issuance criterion 
embodied in the new revocation provision applies only to actions that 
are likely to appreciably reduce the likelihood of the survival and 
recovery of the species in the wild, and makes no reference to critical 
habitat. We decline to expand the revocation provisions beyond the 
scope of the statutory issuance criterion.
    Issue: Both States and several other commenters recommended that 
the phrase ``in a timely fashion'' be further defined or a timeframe be 
added to the rule that would establish when the Service would take 
revocation action.
    Response: The phrase ``in a timely fashion'' was included in the 
proposed revocation provision to indicate that the Service would not 
move to revoke an incidental take permit the instant a concern about 
the effect of an activity on the species' likelihood of survival and 
recovery is identified, but only if subsequent efforts to remedy the 
situation were not successful. Because each HCP is case-specific, it is 
not possible to define what remedying in ``a timely fashion'' will mean 
in all instances. Whether a response can be deemed timely or not will 
depend on highly fact-specific issues, including the species involved 
and the source of the problem. However, like other such subjective 
terms that appear in laws and regulations, ``in a timely fashion'' is 
intended to be a reasonable period of time to allow for a good faith 
effort on the part of the Service and other interested parties to 
remedy the situation for the specific case at hand. In most cases we 
assume ``in a timely fashion'' would likely be a few days to a few 
months depending on the species involved and the source of the problem, 
but a shorter or longer period of time may be appropriate in some 
situations. Because we cannot define a more precise timeframe, we have 
decided to delete the phrase ``in a timely fashion'' from the final 
rule.
    This change in the rule will have no effect on the actual period of 
time it would take the Service to remedy such a situation or to come to 
the conclusion that we cannot remedy the situation and need to revoke 
the permit. The timeframe needed to make this determination is a 
function of the No Surprises procedures to determine if unforeseen 
circumstances exist (see 50 CFR 17.22(b)(5)(iii) and 50 CFR 
17.32(b)(5)(iii)). We review that process here to clarify this issue. 
The Service has the burden of demonstrating that unforeseen 
circumstances exist using the best scientific and commercial data 
available. These findings must be clearly documented and based upon 
reliable technical information regarding the status and habitat 
requirements of the affected species. The Service will consider, but 
not be limited to, the following factors: (1) Size of the current range 
of the affected species; (2) percentage of range adversely affected by 
the conservation plan; (3) percentage of range conserved by the 
conservation plan; (4) ecological significance of that portion of the 
range affected by the conservation plan; (5) level of knowledge about 
the affected species and the degree of specificity of the species' 
conservation program under the conservation plan; and (6) whether 
failure to adopt additional conservation measures would appreciably 
reduce the likelihood of survival and recovery of the affected species 
in the wild.
    If unforeseen circumstances are found to exist, the Service will 
consider changes in the operating conservation program or additional 
mitigation measures. However, measures required of the permittee must 
be as close as possible to the terms of the original HCP. Any 
adjustments or modifications will not include requirements for 
additional land, water, or financial compensation, or additional 
restrictions on the use of land, water, or other natural resources 
otherwise available for development or use under the HCP, unless the 
permittee consents to such additional measures or such measures are 
provided by some other interested party. The Service will work with the 
permittee to increase the effectiveness of the HCP's operating 
conservation program to address the unforeseen circumstances without 
requiring the permittee to provide an additional commitment of 
resources. If the Service determines additional mitigation on behalf of 
the species is needed, the Service may request, but cannot require, the 
permittee to voluntarily undertake such measures. The Service has a 
wide array of authorities and resources that can be used to provide 
additional protection for the species. The Service will also work with 
other appropriate entities to find a remedy. However, if it is 
determined that the continuation of the permitted activity would 
appreciably reduce the likelihood of survival and recovery for one or 
more species in the wild and no remedy can be found and implemented, 
the Service will move to revoke the permit in accordance with the 
administrative procedures of 50 CFR 13.28(b) and 13.29.
    Issue: One commenter stated the terms ``remedied'' and 
``inconsistency'' in the proposed rule are ambiguous and should be 
clarified. More specifically, the commenter requested we explain the 
process associated with the ``remedy'' and the public's role when the 
Service is pursuing ``remedies?''
    Response: The term ``remedied'' is case specific. As described in 
the response to the previous issue, through

[[Page 71729]]

the process of determining if unforeseen circumstances exist, the 
Service will identify a remedy, if any exists, specific to the 
situation. The term ``inconsistent'' means ``not in accordance with.'' 
As used in the regulations it means that continuation of activities 
covered by the HCP will appreciably reduce the likelihood of the 
survival and recovery for one or more species in the wild. Pursuit of a 
remedy is not a public process; however, the Service will work with any 
appropriate entities, including members of the public, to identify a 
remedy.
    Issue: The commenting Tribe recommended amending the proposed 
regulations to include language conditioning permit revocation such 
that a permit issued to an ``Indian Tribe,'' as defined in Secretarial 
Order No. 3206, cannot be revoked unless the Department first 
determines that such inconsistency cannot be remedied through (1) the 
reasonable regulation of non-Indian activities, (2) revocation is the 
least restrictive alternative available to remedy the inconsistency, 
(3) revocation of the permit does not discriminate against Indian 
activities, either as stated or applied; and (4) voluntary tribal 
measures are not adequate to remedy the inconsistency.
    Response: In accordance with the Secretarial Order 3206, ``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the 
Department of the Interior's Manual at 512 DM 2, we understand that we 
must relate to recognized Federal Indian Tribes on a Government-to 
Government basis. However, the permit revocation regulations pertain to 
voluntary agreements, Habitat Conservation Plans, in which Tribes and 
individuals are not required to participate unless they volunteer to do 
so. Therefore, these regulations may have effects on Tribal resources 
and Native American Tribes, but solely at their discretion, should 
those Tribes or individuals choose to participate in the voluntary 
program. We view the permit revocation regulations, as proposed, along 
with the No Surprises Rule and our responsibilities under Secretarial 
Order 3206 and other policies, to provide adequate assurances to allow 
Tribes to enter into these voluntary agreements without including the 
suggested revisions.
    Issue: Several commenters questioned why the Service should have to 
step in at public expense to remedy jeopardy situations before a permit 
can be revoked. One commenter stated that the Service is ``ill-equipped 
to take on the responsibility of implementing mitigation measures when 
unforeseen circumstances arise.''
    Response: In the February 23, 1998, ``No Surprises'' final rule, we 
provided the rationale for committing the agency to step in and attempt 
to remedy jeopardy situations in cases where the permittee is in full 
compliance with the permit and has a properly implemented conservation 
plan in place. In exchange for assurances, the HCP permittee has agreed 
to undertake extensive planning and to include contingencies and 
assurances for additional funding for such contingencies, to address 
changed circumstances. This requirement does not exist in other Federal 
permitting programs. We believe it is fair, therefore, to commit the 
agency to step in and address unforeseen circumstances. The Service 
believes that it will be rare for unforeseen circumstances to result in 
a violation of an incidental take permit's issuance criteria. However, 
in such cases, the Service will use all of our authorities, will work 
with other Federal agencies and other appropriate entities to rectify 
the situation, and work with the permittee to redirect conservation and 
mitigation measures to remedy the situation. The Service has a wide 
array of authorities and resources that can be used to provide 
additional protection for threatened or endangered species covered by 
an HCP. Among those authorities and resources are a variety of grants 
administered by the Service, cooperative agreements with States, 
section 5 land acquisition authority, section 7(a)(1) interagency 
cooperation, recovery implementation, and other programs. Nevertheless, 
the new permit revocation rule recognizes that, if these efforts fail 
and jeopardy to a listed species persists, then the Service, pursuant 
to the ESA, may revoke the permit even if the permittee is fully 
complying with the terms and conditions of the permit.
    Issue: One State commenter recommended close coordination with 
State fish and wildlife agencies during the mediation process to help 
in the determination of jeopardy for the species, and during the 
identification of potential alternatives to permit revocation.
    Response: Under the Service's interagency cooperative policy 
regarding the role of State agencies in Endangered Species Act 
activities (59 FR 34275), it is the policy of the Service to utilize 
the expertise and solicit information and participation of State 
agencies in all aspects of the Habitat Conservation Planning process. 
In the event of unforeseen circumstances, the Service will work with 
the permittee, the State, and any other appropriate entities to 
increase the effectiveness of the HCP's operating conservation program 
to address unforeseen circumstances without requiring the permittee to 
produce an additional commitment of resources as stated above and to 
identify alternatives to permit revocation. Under 50 CFR 17.22(b)(6) 
and 17.32(b)(6), the Service is not limited or constrained--nor is any 
other Federal, State, local, or tribal government agency, or a private 
entity constrained--from taking additional actions at its own expense 
to protect or conserve a species included in a conservation plan.
    Issue: A few commenters stated that the permit revocation 
regulations undermine the No Surprises Rule. A couple of these 
commenters thought the Service should limit permit revocation to 
instances where the permittee is not in compliance with the permit. One 
commenter questioned the Service's authority to revoke a permit, citing 
section 10(a)(2)(C) of the ESA, which states, ``the Secretary shall 
revoke a permit issued under this paragraph if he finds that the 
permittee is not complying with the terms and conditions of the 
permit.'' This commenter viewed this revocation standard as negating 
the existence of any general authority to revoke incidental take 
permits on other conditions (i.e., 50 CFR 13.28(a)(1) through (4)). 
Furthermore, this commenter did not think the Service could revoke a 
permit under the authority of section 7 of the ESA (16 U.S.C. section 
1536(7)(a)(2)) to avoid jeopardy once an incidental take permit had 
been issued.
    Response: Because this permit revocation rule codifies and 
clarifies the statutory permit revocation standard, it does not affect 
the No Surprises Rule. The Service's general permitting regulations in 
50 CFR part 13 predate the 1982 amendments to the ESA that added the 
incidental take permit provisions to the ESA. By their terms, these 
regulations apply to all ESA permits, including incidental take permits 
(see 50 CFR 13.3). The Service has always considered incidental take 
permits to be subject to the general 50 CFR part 13 regulations and 
includes as a standard condition in all incidental take permits that 
they are subject to 50 CFR part 13. Nothing in section 10(a)(2)(C) 
indicates otherwise. It states that the Service shall revoke a permit 
if the permittee fails to comply with the

[[Page 71730]]

terms and conditions of the permit, but it does not indicate that this 
is the sole permissible basis for revocation. Moreover, the legislative 
history of the 1982 ESA amendments shows that the language was included 
simply to emphasize that an incidental take permit, like any other 
section 10 permit, should be revoked if the permittee fails to comply 
with its terms and conditions.
    Furthermore, the Service's act of issuing an incidental take permit 
under section 10(a)(1)(B) is a Federal action, subject to the section 
7(a)(2) duty to insure that the action is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. Congress emphasized the importance of this duty in the 
incidental take permit context by expressly including an issuance 
criterion that mirrors the regulatory definition established for 
jeopardizing the continued existence of a listed species in the wild. 
If, at any time, carrying out such an action (i.e., implementing an 
HCP) is found likely to appreciably reduce the likelihood of the 
survival and recovery for one or more species in the wild, the Service 
can no longer authorize such action and must amend or revoke the 
permit. Under the No Surprises Rule, if the Service finds that 
unforeseen circumstances exist and additional conservation measures are 
needed to avoid appreciably reducing the likelihood of survival and 
recovery of a listed species in the wild, the Service must remedy the 
situation at its own expense or in cooperation with the permittee or 
other appropriate entities. If no remedy can be found or implemented, 
the Service, as a last resort, will revoke the permit.
    Issue: Many commenters requested the Service reaffirm that permit 
revocation should be ``an action of last resort.''
    Response: As we stated in our notice of February 11, 2000 (65 FR 
6916), and in our final rule of January 22, 2001 (66 FR 6483), ``the 
Service is firmly committed, as required by the ``No Surprises'' final 
rule, to utilizing its resources to address any such unforeseen 
circumstances,'' and we view the revocation provision ``as a last 
resort in the narrow and unlikely situation in which an unforeseen 
circumstance results in likely jeopardy to a species covered by the 
permit and the Service has not been successful in remedying the 
situation through other means.'' We continue to adhere to this position 
and view permit revocation under the terms of this rule as an unlikely 
action of last resort.

Revisions to the Proposed Rule

    In Sec. Sec.  17.22(b)(8) and 17.32(b)(8) we deleted the phrase 
``in a timely fashion'' from the regulations. Because each HCP is 
unique, the situation associated with a finding of unforeseen 
circumstances and a determination that continued activity under the 
permit would appreciably reduce the likelihood of survival and recovery 
of a species covered by the permit is case-specific; therefore, it is 
not possible to define what remedying a situation in ``a timely 
fashion'' will mean in all instances. Because we cannot define a 
precise timeframe in which we would remedy such a situation or revoke 
an incidental take permit, we have deleted this phrase from the final 
rule. However, the procedures in Sec. Sec.  17.22(b)(5)(iii) and 
17.32(b)(5)(iii) for determining if unforeseen circumstances exist 
describe the administrative steps that must be followed.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal or policy issues, and 
was reviewed by the Office of Management and Budget (OMB) in accordance 
with the four criteria discussed below.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government.
    (b) This rule is not expected to create inconsistencies with other 
agencies' actions. These regulations would amend potentially 
conflicting permitting regulations established for a voluntary program, 
Habitat Conservation Planning, for non-Federal property owners and 
would not create inconsistencies with the actions of non-Federal 
agencies.
    (c) This regulation is not expected to significantly affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review. 
This rule is a direct response to a previous legal challenge.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. The 
Regulatory Flexibility Act requires Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
    Pursuant to the Regulatory Flexibility Act, we certified to the 
Small Business Administration that these regulations would not have a 
significant economic impact on a substantial number of small entities. 
The proposed changes clarify the circumstances under which an 
incidental take permit issued under the authority of section 
10(a)(1)(B) of the Endangered Species Act might be subject to 
revocation. As of September 27, 2004, the Service has approved 470 
Habitat Conservation Plans (HCPs) and issued 737 incidental take 
permits associated with these HCPs, and none have required revocation. 
As identified in the preamble and the response to comments, the 
specific circumstances under which the proposed regulations would 
provide for revocation are expected to be extraordinarily rare.

Small Business Regulatory Enforcement Fairness Act

    This regulation will not be a major rule under 5 U.S.C. 801 et 
seq., the Small Business Regulatory Enforcement Fairness Act.
    (a) This regulation would not produce an annual economic effect of 
$100 million.
    (b) This regulation would not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions.
    (c) This regulation would not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant action under Executive Order 12866, 
it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore,

[[Page 71731]]

this action is not a significant energy action and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) The Service has determined and certifies pursuant to the 
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. No additional 
information will be required from a non-Federal entity solely as a 
result of this rule. These regulations implement a voluntary program; 
no incremental costs are being imposed on non-Federal landowners.
    (b) These regulations will not produce a Federal mandate of $100 
million or greater in any year; that is, this rule is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Takings

    In accordance with Executive Order 12630, these regulations do not 
have significant takings implications concerning taking of private 
property by the Federal Government. These regulations pertain to a 
voluntary program that does not require individuals to participate 
unless they volunteer to do so. Therefore, these regulations have no 
impact on personal property rights.

Federalism

    These regulations will not have substantial direct effects on the 
States, in the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among 
various levels of government. Therefore, in accordance with Executive 
Order 13132, the Service has determined that this rule does not have 
sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this rule does not unduly burden the 
judicial system and meets the applicable standards provided in sections 
3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This rule would not impose any new requirements for collection of 
information associated with incidental take permits other than those 
already approved for incidental take permits under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. We may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB Control Number.

National Environmental Policy Act

    The Department of the Interior has determined that the issuance of 
this rule is categorically excluded under the Department's NEPA 
procedures in 516 DM 2, Appendix 1.10.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the 
Department of the Interior's Manual at 512 DM 2, we understand that we 
must relate to recognized Federal Indian Tribes on a Government-to 
Government basis. However, these regulations pertain to voluntary 
agreements, Habitat Conservation Plans, in which Tribes and individuals 
are not required to participate unless they volunteer to do so. 
Therefore, these regulations may have effects on Tribal resources and 
Native American Tribes, but solely at their discretion, should those 
Tribes or individuals choose to participate in the voluntary program.

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

0
For the reasons set out in the preamble, the Service amends Title 50, 
Chapter I, subchapter B of the Code of Federal Regulations, as set 
forth below.

PART 17--[AMENDED]

0
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.


0
2. Amend Sec.  17.22 by adding a new paragraph (b)(8) to read as 
follows:


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

* * * * *
    (b) * * *
    (8) Criteria for revocation. A permit issued under paragraph (b) of 
this section may not be revoked for any reason except those set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter or 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.
* * * * *


0
3. Amend Sec.  17.32 by adding a new paragraph (b)(8) to read as 
follows:


Sec.  17.32  Permits--general.

* * * * *
    (b) * * *
    (8) Criteria for revocation. A permit issued under paragraph (b) of 
this section may not be revoked for any reason except those set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter or 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.
* * * * *

    Dated: November 23, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-27202 Filed 12-9-04; 8:45 am]
BILLING CODE 4310-55-P