Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 71723

Source of flooding and location 

*Elevation 

in feet 

(NGVD) 

Communities affected 

Just upstream of Northeast 420th Avenue ........................................................................ *432 

At Borst Avenue Northeast ................................................................................................ *441 

Upper South Overflow: King County (Uninc. Areas) and City of 

North Bend. 

Approximately 400 feet downstream of Ballarat Avenue North ........................................ *437

At divergence from Middle Fork Snoqualmie River ........................................................... *467 

Upper North Overflow: King County (Uninc. Areas) and City of 

North Bend. 

Approximately 150 feet downstream of Ogle Avenue Northeast ...................................... *441 

Approximately 400 feet downstream of 120th Street ........................................................ *457 

Gardiner Creek: King County (Uninc. Areas) and City of 

North Bend. 

At Bolch Avenue Northwest ............................................................................................... *429 

Upstream of Northwest Eighth Street ................................................................................ *435 

ADDRESSES

Unincorporated Areas King County

Maps are available for inspection at the King DDES, Black River Corp. Park, 900 Oaksdale Avenue Southwest, Suite 100, Renton, Washington.

City of North Bend

Maps are available for inspection at 1155 East North Bend Way, North Bend, Washington.

City of Snoqualmie

Maps are available for inspection at the Planning Directors Office, 8020 Railroad Avenue Southeast, Snoqualmie, Washington. 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance’’)

Dated: December 1, 2004. 

David I. Maurstad, 

Acting Director, Mitigation Division, 

Emergency Preparedness and Response 

Directorate.

[FR Doc. 04–27133 Filed 12–9–04; 8:45 am] 

BILLING CODE 9110–12–P

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.

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 

71724 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

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 preexisting 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 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 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 

71726 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

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. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 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, §§ 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 

§ 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 

§ 13.28(a)(5) with a provision that more 

accurately reflects the congressional 

intent behind the 1982 amendments. 

The timeframes ‘‘short-term’’ and ‘‘longterm’’ 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 

71728 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

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 §§ 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 factintensive 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 

§§ 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 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 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 

71730 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

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 §§ 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 §§ 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 nonFederal 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, 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 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

■ 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]

■ 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.

■ 2. Amend § 17.22 by adding a new 

paragraph (b)(8) to read as follows:

§ 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 

§ 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.

* * * * *

■ 3. Amend § 17.32 by adding a new 

paragraph (b)(8) to read as follows:

§ 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 

§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 300

[Docket No. 040617186–4302; I.D. 120704A]

International Fisheries; Pacific Tuna 

Fisheries; Restrictions for 2004 Purse 

Seine and Longline Fisheries in the 

Eastern Tropical Pacific Ocean

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce.

ACTION: Fishing closure, restrictions.

SUMMARY: NMFS publishes this 

document to prevent overfishing of 

bigeye tuna in the eastern tropical 

Pacific Ocean (ETP), consistent with 

recommendations by the Inter-American 

Tropical Tuna Commission (IATTC) that 

have been approved by the Department 

of State (DOS) under the Tuna