APPENDIX 11:

 

 

Endangered and Threatened Species Permit Conditions

50 CFR Part 17 Excerpts (FWS)

50 CFR 222.22 (NMFS)
96

§ 17.1 50 CFR Ch. I (10–1–98 Edition)

17.62 Permits for scientific purposes or for

the enhancement of propagation or survival.

17.63 Economic hardship permits.

Subpart G—Threatened Plants

17.71 Prohibitions.

17.72 Permits—general.

17.73—17.78 [Reserved]

Subpart H—Experimental Populations

17.80 Definitions.

17.81 Listing.

17.82 Prohibitions.

17.83 Interagency cooperation.

17.84 Special rules—vertebrates.

17.85 Special rules—invertebrates. [Reserved]

17.86 Special rules—plants. [Reserved]

Subpart I—Interagency Cooperation

17.94 Critical habitats.

17.95 Critical habitat—fish and wildlife.

17.96 Critical habitat—plants.

Subpart J—Manatee Protection Areas

17.100 Purpose.

17.101 Scope.

17.102 Definitions.

17.103 Establishment of protection areas.

17.104 Prohibitions.

17.105 Permits and exceptions.

17.106 Emergency establishment of protection areas.

17.107 Facilitating enforcement.

17.108 List of designated manatee protection areas.

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.

SOURCE: 40 FR 44415, Sept. 26, 1975, unless

otherwise noted.

Subpart A—Introduction and

General Provisions

§ 17.1 Purpose of regulations.

(a) The regulations in this part implement the Endangered Species Act of

1973, 87 Stat. 884, 16 U.S.C. 1531–1543, except for those provisions in the Act

concerning the Convention on International Trade in Endangered Species

of Wild Fauna and Flora, for which regulations are provided in part 23 of this

subchapter.

(b) The regulations identify those

species of wildlife and plants determined by the Director to be endangered

or threatened with extinction under

section 4(a) of the Act and also carry

over the species and subspecies of wildlife designated as endangered under the

Endangered Species Conservation Act

of 1969 (83 Stat. 275, 16 U.S.C. 668cc–1 to

6) which are deemed endangered species

under section 4(c)(3) of the Act.

[40 FR 44415, Sept. 26, 1975, as amended at 42

FR 10465, Feb. 22, 1977]

§ 17.2 Scope of regulations.

(a) The regulations of this part apply

only to endangered and threatened

wildlife and plants.

(b) By agreement between the Service and the National Marine Fisheries

Service, the jurisdiction of the Department of Commerce has been specifically defined to include certain species,

while jurisdiction is shared in regard to

certain other species. Such species are

footnoted in subpart B of this part, and

reference is given to special rules of

the National Marine Fisheries Service

for those species.

(c) The provisions in this part are in

addition to, and are not in lieu of,

other regulations of this subchapter B

which may require a permit or prescribe additional restrictions or conditions for the importation, exportation,

and interstate transportation of wildlife.

(d) The examples used in this part are

provided solely for the convenience of

the public, and to explain the intent

and meaning of the regulation to which

they refer. They have no legal significance.

(e) Certain of the wildlife and plants

listed in §§ 17.11 and 17.12 as endangered

or threatened are included in Appendix

I, II or III to the Convention on International Trade in Endangered Species

of Wild Fauna and Flora. The importation, exportation and reexportation of

such species are subject to additional

regulations provided in part 23 of this

subchapter.

[40 FR 44415, Sept. 26, 1975, as amended at 42

FR 10465, Feb. 22, 1977]

§ 17.3 Definitions.

In addition to the definitions contained in part 10 of this subchapter,

and unless the context otherwise requires, in this part 17:
97

U.S. Fish and Wildlife Serv., Interior § 17.3

Act means the Endangered Species

Act of 1973 (16 U.S.C. 1531–1543; 87 Stat.

884);

Adequately covered means, with respect to species listed pursuant to section 4 of the ESA, that a proposed conservation plan has satisfied the permit

issuance criteria under section

10(a)(2)(B) of the ESA for the species

covered by the plan, and, with respect

to unlisted species, that a proposed

conservation plan has satisfied the permit issuance criteria under section

10(a)(2)(B) of the ESA that would otherwise apply if the unlisted species covered by the plan were actually listed.

For the Services to cover a species

under a conservation plan, it must be

listed on the section 10(a)(1)(B) permit.

Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1603(b) (85 Stat.

588)) as a citizen of the United States

who is of one-fourth degree or more

Alaska Indian (including Tsimshian Indians enrolled or not enrolled in the

Metlaktla Indian Community), Eskimo, or Aleut blood, or combination

thereof. The term includes any Native,

as so defined, either or both of whose

adoptive parents are not Natives. It

also includes, in the absence of proof of

a minimum blood quantum, any citizen

of the United States who is regarded as

an Alaska Native by the Native village

or town of which he claims to be a

member and whose father or mother is

(or, if deceased, was) regarded as Native by any Native village or Native

town. Any citizen enrolled by the Secretary pursuant to section 5 of the

Alaska Native Claims Settlement Act

shall be conclusively presumed to be an

Alaskan Native for purposes of this

part;

Authentic native articles of handicrafts

and clothing means items made by an

Indian, Aleut, or Eskimo which (a)

were commonly produced on or before

December 28, 1973, and (b) are composed

wholly or in some significant respect of

natural materials, and (c) are significantly altered from their natural form

and which are produced, decorated, or

fashioned in the exercise of traditional

native handicrafts without the use of

pantographs, multiple carvers, or similar mass copying devices. Improved

methods of production utilizing modern implements such as sewing machines or modern techniques at a tannery registered pursuant to § 18.23(c) of

this subchapter (in the case of marine

mammals) may be used so long as no

large scale mass production industry

results. Traditional native handicrafts

include, but are not limited to, weaving, carving, stitching, sewing, lacing,

beading, drawing, and painting. The

formation of traditional native groups

such as cooperatives, is permitted so

long as no large scale mass production

results;

Bred in captivity or captive-bred refers

to wildlife, including eggs, born or otherwise produced in captivity from parents that mated or otherwise transferred gametes in captivity, if reproduction is sexual, or from parents that

were in captivity when development of

the progeny began, if development is

asexual.

Captivity means that living wildlife is

held in a controlled environment that

is intensively manipulated by man for

the purpose of producing wildlife of the

selected species, and that has boundaries designed to prevent animal, eggs

or gametes of the selected species from

entering or leaving the controlled environment. General characteristics of

captivity may include but are not limited to artificial housing, waste removal, health care, protection from

predators, and artificially supplied

food.

Changed circumstances means changes

in circumstances affecting a species or

geographic area covered by a conservation plan that can reasonably be anticipated by plan developers and the

Service and that can be planned for

(e.g., the listing of new species, or a fire

or other natural catastrophic event in

areas prone to such events).

Conservation plan means the plan required by section 10(a)(2)(A) of the ESA

that an applicant must submit when

applying for an incidental take permit.

Conservation plans also are known as

‘‘habitat conservation plans’’ or

‘‘HCPs.’’

Conserved habitat areas means areas

explicitly designated for habitat restoration, acquisition, protection, or

other conservation purposes under a

conservation plan.
98

§ 17.3 50 CFR Ch. I (10–1–98 Edition)

Convention means the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora, TIAS

8249.

Enhance the propagation or survival,

when used in reference to wildlife in

captivity, includes but is not limited to

the following activities when it can be

shown that such activities would not

be detrimental to the survival of wild

or captive populations of the affected

species:

(a) Provision of health care, management of populations by culling, contraception, euthanasia, grouping or handling of wildlife to control survivorship

and reproduction, and similar normal

practices of animal husbandry needed

to maintain captive populations that

are self-sustaining and that possess as

much genetic vitality as possible;

(b) Accumulation and holding of living wildlife that is not immediately

needed or suitable for propagative or

scientific purposes, and the transfer of

such wildlife between persons in order

to relieve crowding or other problems

hindering the propagation or survival

of the captive population at the location from which the wildlife would be

removed; and

(c) Exhibition of living wildlife in a

manner designed to educate the public

about the ecological role and conservation needs of the affected species.

Endangered means a species of wildlife listed in § 17.11 or a species of plant

listed in § 17.12 and designated as endangered.

Harass in the definition of ‘‘take’’ in

the Act means an intentional or negligent act or omission which creates

the likelihood of injury to wildlife by

annoying it to such an extent as to significantly disrupt normal behavioral

patterns which include, but are not

limited to, breeding, feeding, or sheltering. This definition, when applied to

captive wildlife, does not include generally accepted:

(1) Animal husbandry practices that

meet or exceed the minimum standards

for facilities and care under the Animal

Welfare Act,

(2) Breeding procedures, or

(3) Provisions of veterinary care for

confining, tranquilizing, or anesthetizing, when such practices, procedures,

or provisions are not likely to to result

in injury to the wildlife.

Harm in the definition of ‘‘take’’ in

the Act means an act which actually

kills or injures wildlife. Such act may

include significant habitat modification or degradation where it actually

kills or injures wildlife by significantly

impairing essential behavioral patterns, including breeding, feeding or

sheltering.

Incidental taking means any taking

otherwise prohibited, if such taking is

incidental to, and not the purpose of,

the carrying out of an otherwise lawful

activity.

Industry or trade in the definition of

‘‘commercial activity’’ in the Act

means the actual or intended transfer

of wildlife or plants from one person to

another person in the pursuit of gain or

profit;

Native village or town means any community, association, tribe, clan or

group;

Operating conservation program means

those conservation management activities which are expressly agreed upon

and described in a conservation plan or

its Implementing Agreement, if any,

and which are to be undertaken for the

affected species when implementing an

approved conservation plan, including

measures to respond to changed circumstances.

Population means a group of fish or

wildlife in the same taxon below the

subspecific level, in common spatial arrangement that interbreed when mature;

Properly implemented conservation plan

means any conservation plan, Implementing Agreement and permit whose

commitments and provisions have been

or are being fully implemented by the

permittee.

Specimen means any animal or plant,

or any part, product, egg, seed or root

of any animal or plant;

Subsistence means the use of endangered or threatened wildlife for food,

clothing, shelter, heating, transportation and other uses necessary to

maintain the life of the taker of the

wildlife, or those who depend upon the

taker to provide them with such subsistence, and includes selling any edible portions of such wildlife in native

villages and towns in Alaska for native
99

U.S. Fish and Wildlife Serv., Interior § 17.4

consumption within native villages and

towns;

Threatened means a species of wildlife

listed in § 17.11 or plant listed in § 17.12

and designated as threatened.

Unforeseen circumstances means

changes in circumstances 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.

Wasteful manner means any taking or

method of taking which is likely to result in the killing or injury of endangered or threatened wildlife beyond

those needed for subsistence purposes,

or which results in the waste of a substantial portion of the wildlife, and includes without limitation the employment of a method of taking which is

not likely to assure the capture or killing of the wildlife, or which is not immediately followed by a reasonable effort to retrieve the wildlife.

[40 FR 44415, Sept. 26, 1975, as amended at 42

FR 28056, June 1, 1977; 44 FR 54006, Sept. 17,

1979; 46 FR 54750, Nov. 4, 1981; 47 FR 31387,

July 20, 1982; 50 FR 39687, Sept. 30, 1985; 63 FR

8870, Feb. 23, 1998; 63 FR 48639, Sept. 11, 1998]

EFFECTIVE DATE NOTE: At 63 FR 48639,

Sept. 11, 1998, § 17.3 was amended by revising

the definition of ‘‘Harass’’, effective Oct. 13,

1998. For the convenience of the user, the superseded text is set forth as follows:

§ 17.3 Definitions.

* * * * *

Harass in the definition of ‘‘take’’ in the

Act means an intentional or negligent act or

omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not

limited to, breeding, feeding or sheltering.

* * * * *

§ 17.4 Pre-Act wildlife.

(a) The prohibitions defined in subparts C and D of this part 17 shall not

apply to any activity involving endangered or threatened wildlife which was

held in captivity or in a controlled environment on December 28, 1973: Provided,

(1) That the purposes of such holding

were not contrary to the purposes of

the Act; and

(2) That the wildlife was not held in

the course of a commercial activity.

Example 1. On January 25, 1974, a tourist

buys a stuffed hawksbill turtle (an endangered species listed since June, 1970), in a

foreign country. On December 28, 1973, the

stuffed turtle had been on display for sale.

The tourist imports the stuffed turtle into

the United States on January 26, 1974. This is

a violation of the Act since the stuffed turtle

was held for commercial purposes on December 28, 1973.

Example 2. On December 27, 1973 (or earlier), a tourist buys a leopard skin coat (the

leopard has been listed as endangered since

March 1972) for his wife in a foreign country.

On January 5, he imports it into the United

States. He has not committed a violation

since on December 28, 1973, he was the owner

of the coat, for personal purposes, and the

chain of commerce had ended with the sale

on the 27th. Even if he did not finish paying

for the coat for another year, as long as he

had possession of it, and he was not going to

resell it, but was using it for personal purposes, the Act does not apply to that coat.

Example 3. On or before December 28, 1973,

a hunter kills a leopard legally in Africa. He

has the leopard mounted and imports it into

the United States in March 1974. The importation is not subject to the Act. The hunter

has not engaged in a commercial activity,

even though he bought the services of a

guide, outfitters, and a taxidermist to help

him take, preserve, and import the leopard.

This applies even if the trophy was in the

possession of the taxidermist on December

28, 1973.

Example 4. On January 15, 1974, a hunter

kills a leopard legally in Africa. He has the

leopard mounted and imports it into the

United States in June 1974. This importation

is a violation of the Act since the leopard

was not in captivity or a controlled environment on December 28, 1973.

(b) Service officers or Customs officers may refuse to clear endangered or

threatened wildlife for importation

into or exportation from the United

States, pursuant to § 14.53 of this subchapter, until the importer or exporter

can demonstrate that the exemption

referred to in this section applies. Exempt status may be established by any

sufficient evidence, including an affidavit containing the following:

(1) The affiant’s name and address;

(2) Identification of the affiant;
100

§ 17.5 50 CFR Ch. I (10–1–98 Edition)

(3) Identification of the endangered

or threatened wildlife which is the subject of the affidavit;

(4) A statement by the affiant that to

the best of his knowledge and belief,

the endangered or threatened wildlife

which is the subject of the affidavit

was in captivity or in a controlled environment on December 28, 1973, and

was not being held for purposes contrary to the Act or in the course of a

commercial activity;

(5) A statement by the affiant in the

following language:

The foregoing is principally based on the

attached exhibits which, to the best of my

knowledge and belief, are complete, true and

correct. I understand that this affidavit is

being submitted for the purpose of inducing

the Federal Government to recognize an exempt status regarding (insert description of

wildlife), under the Endangered Species Act

of 1973 (16 U.S.C. 1531–1543), and regulations

promulgated thereunder, and that any false

statements may subject me to the criminal

penalties of 18 U.S.C. 1001.

(6) As an attachment, records or

other available evidence to show:

(i) That the wildlife in question was

being held in captivity or in a controlled environment on December 28,

1973;

(ii) The purpose for which the wildlife was being held; and

(iii) The nature of such holding (to

establish that no commercial activity

was involved).

(c) This section applies only to wildlife born on or prior to December 28,

1973. It does not apply to the progeny of

any such wildlife born after December

28, 1973.

§ 17.5 Alaska natives.

(a) The provisions of subpart C of this

part relating to the importation or the

taking of endangered wildlife, and any

provision of subpart D of this part relating to the importation or the taking

of threatened wildlife, shall not apply

to:

(1) Any Indian, Aleut, or Eskimo who

is an Alaskan native and who resides in

Alaska; or

(2) Any non-native permanent resident of an Alaskan native village who

is primarily dependent upon the taking

of wildlife for consumption or for the

creation and sale of authentic native

articles of handicrafts and clothing:

If the taking is primarily for subsistence purposes, and is not accomplished

in a wasteful manner.

(b) Edible portions of endangered or

threatened wildlife taken or imported

pursuant to paragraph (a) of this section may be sold in native villages or

towns in Alaska for native consumption within native villages and towns

in Alaska.

(c) Non-edible by-products of endangered or threatened wildlife taken or

imported pursuant to paragraph (a) of

this section may be sold in interstate

commerce when made into authentic

native articles of handicrafts and

clothing.

§ 17.6 State cooperative agreements.

[Reserved]

§ 17.7 Raptor exemption.

(a) The prohibitions found in §§ 17.21

and 17.31 do not apply to any raptor [a

live migratory bird of the Order

Falconiformes or the Order Strigiformes,

other than a bald eagle (Haliaeetus

leucocephalus) or a golden eagle (Aquila

chrysaetos)] legally held in captivity or

in a controlled environment on November 10, 1978, or to any of its progeny,

which is:

(1) Possessed and banded in compliance with the terms of a valid permit

issued under part 21 of this chapter;

and

(2) Identified in the earliest applicable annual report required to be filed

by a permittee under part 21 of this

chapter as in a permittee’s possession

on November 10, 1978, or as the progeny

of such a raptor.

(b) This section does not apply to any

raptor intentionally returned to the

wild.

[48 FR 31607, July 8, 1983]

§ 17.8 Permit applications and information collection requirements.

(a) Address permit applications for

activities affecting species listed under

the Endangered Species Act, as amended, as follows:

(1) Address activities affecting endangered and threatened species that

are native to the United States to the

Regional Director for the Region in

which the activity is to take place.

You can find addresses for the Regional
101

U.S. Fish and Wildlife Serv., Interior § 17.11

Directors in 50 CFR 2.2. Send applications for interstate commerce in native

endangered and threatened species to

the Regional Director with lead responsibility for the species. To determine

the appropriate region, call the nearest

Regional Office:

Region 1 (Portland, OR): 503–231–6241

Region 2 (Albuquerque, NM): 505–248–6920

Region 3 (Twin Cities, MN): 612–713–5343

Region 4 (Atlanta, GA): 404–679–7313

Region 5 (Hadley, MA): 413–253–8628

Region 6 (Denver, CO): 303–236–8155, ext 263

Region 7 (Anchorage, AK): 907–786–3620

Headquarters (Washington, DC): 703–358–2106

(2) Submit permit applications for

activities affecting native endangered

and threatened species in international

movement or commerce, and all activities affecting nonnative endangered

and threatened species to the Director,

U.S. Fish and Wildlife Service, (Attention Office of Management Authority),

4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.

(b) The Office of Management and

Budget approved the information collection requirements contained in this

part 17 under 44 U.S.C. 3507 and assigned OMB Control Numbers 1018–0093

and 1018–0094. The Service may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. We

are collecting this information to provide information necessary to evaluate

permit applications. We will use this

information to review permit applications and make decisions, according to

criteria established in various Federal

wildlife conservation statutes and regulations, on the issuance, suspension,

revocation, or denial of permits. You

must respond to obtain or retain a permit. We estimate the public reporting

burden for these reporting requirements to vary from 2 to 21⁄2 hours per

response, including time for reviewing

instructions, gathering and maintaining data, and completing and reviewing

the forms. Direct comments regarding

the burden estimate or any other aspect of these reporting requirements to

the Service Information Collection

Control Officer, MS–222 ARLSQ, U.S.

Fish and Wildlife Service, Washington,

DC 20240, or the Office of Management

and Budget, Paperwork Reduction

Project (1018–0093/0094), Washington, DC

20603.

[63 FR 52635, Oct. 1, 1998]

Subpart B—Lists

§ 17.11 Endangered and threatened wildlife.

(a) The list in this section contains

the names of all species of wildlife

which have been determined by the

Services to be Endangered or Threatened. It also contains the names of species of wildlife treated as Endangered

or Threatened because they are sufficiently similar in appearance to Endangered or Threatened species (see

§17.50 et seq.).

(b) The columns entitled ‘‘Common

Name,’’ ‘‘Scientific Name,’’ and ‘‘Vertebrate Population Where Endangered

or Threatened’’ define the species of

wildlife within the meaning of the Act.

Thus, differently classified geographic

populations of the same vertebrate subspecies or species shall be identified by

their differing geographic boundaries,

even though the other two columns are

identical. The term ‘‘Entire’’ means

that all populations throughout the

present range of a vertebrate species

are listed. Although common names

are included, they cannot be relied

upon for identification of any specimen, since they may vary greatly in

local usage. The Services shall use the

most recently accepted scientific

name. In cases in which confusion

might arise, a synonym(s) will be provided in parentheses. The Services

shall rely to the extent practicable on

the International Code of Zoological Nomenclature.

(c) In the ‘‘Status’’ column the following symbols are used: ‘‘E’’ for Endangered, ‘‘T’’ for Threatened, and ‘‘E

[or T] (S/A)’’ for similarity of appearance species.

(d) The other data in the list are nonregulatory in nature and are provided

for the information of the reader. In

the annual revision and compilation of

this title, the following information

may be amended without public notice:

the spelling of species’ names, historical range, footnotes, references to certain other applicable portions of this

title, synonyms, and more current

names. In any of these revised entries,
215

U.S. Fish and Wildlife Serv., Interior § 17.21

606—62 FR 4182; January 29, 1997.

609—62 FR 5551; February 6, 1997.

611—62 FR 14351; March 26, 1997.

613—62 FR 27978; May 22, 1997.

615—62 FR 31748; June 11, 1997.

619—62 FR 33037; June 18, 1997.

620—62 FR 33373; June 19, 1997.

623—62 FR 40973; July 31, 1997.

624—62 FR 42702; August 8, 1997.

625—62 FR 54807; October 22, 1997.

627—62 FR 61925; November 20, 1997.

635—63 FR 19849; April 22, 1998.

640—63 FR 43115; August 12, 1998.

641—63 FR 44594; August 20, 1998.

643—63 FR 49034; September 14, 1998.

644—63 FR 49021; September 14, 1998.

EDITORIAL NOTE 1: For FEDERAL REGISTER

citations affecting the table in § 17.12(h), see

the listing above.

EDITORIAL NOTE 2: For FEDERAL REGISTER

citations affecting § 17.12, see the List of CFR

Sections Affected in the Finding Aids section of this volume.

Subpart C—Endangered Wildlife

§ 17.21 Prohibitions.

(a) Except as provided in subpart A of

this part, or under permits issued pursuant to § 17.22 or § 17.23, it is unlawful

for any person subject to the jurisdiction of the United States to commit, to

attempt to commit, to solicit another

to commit or to cause to be committed, any of the acts described in paragraphs (b) through (f) of this section in

regard to any endangered wildlife.

(b) Import or export. It is unlawful to

import or to export any endangered

wildlife. Any shipment in transit

through the United States is an importation and an exportation, whether or

not it has entered the country for customs purposes.

(c) Take. (1) It is unlawful to take endangered wildlife within the United

States, within the territorial sea of the

United States, or upon the high seas.

The high seas shall be all waters seaward of the territorial sea of the

United States, except waters officially

recognized by the United States as the

territorial sea of another country,

under international law.

(2) Notwithstanding paragraph (c)(1)

of this section, any person may take

endangered wildlife in defense of his

own life or the lives of others.

(3) Notwithstanding paragraph (c)(1)

of this section, any employee or agent

of the Service, any other Federal land

management agency, the National Marine Fisheries Service, or a State conservation agency, who is designated by

his agency for such purposes, may,

when acting in the course of his official

duties, take endangered wildlife without a permit if such action is necessary

to:

(i) Aid a sick, injured or orphaned

specimen; or

(ii) Dispose of a dead specimen; or

(iii) Salvage a dead specimen which

may be useful for scientific study; or

(iv) Remove specimens which constitute a demonstrable but nonimmediate threat to human safety, provided

that the taking is done in a humane

manner; the taking may involve killing or injuring only if it has not been

reasonably possible to eliminate such

threat by live-capturing and releasing

the specimen unharmed, in a remote

area.

(4) Any taking pursuant to paragraphs (c) (2) and (3) of this section

must be reported in writing to the U.S.

Fish and Wildlife Service, Division of

Law Enforcement, P.O. Box 19183,

Washington, DC 20036, within 5 days.

The specimen may only be retained,

disposed of, or salvaged in accordance

with directions from Service.

(5) Notwithstanding paragraph (c)(1)

of this section, any qualified employee

or agent of a State Conservation Agency which is a party to a Cooperative

Agreement with the Service in accordance with section 6(c) of the Act, who

is designated by his agency for such

purposes, may, when acting in the

course of his official duties take those

endangered species which are covered

by an approved cooperative agreement

for conservation programs in accordance with the Cooperative Agreement,

provided that such taking is not reasonably anticipated to result in:

(i) The death or permanent disabling

of the specimen;

(ii) The removal of the specimen

from the State where the taking occurred;

(iii) The introduction of the specimen

so taken, or of any progeny derived
216

§ 17.21 50 CFR Ch. I (10–1–98 Edition)

from such a specimen, into an area beyond the historical range of the species; or

(iv) The holding of the specimen in

captivity for a period of more than 45

consecutive days.

(d) Possession and other acts with unlawfully taken wildlife. (1) It is unlawful

to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any endangered wildlife which

was taken in violation of paragraph (c)

of this section.

Example A person captures a whooping

crane in Texas and gives it to a second person, who puts it in a closed van and drives

thirty miles, to another location in Texas.

The second person then gives the whooping

crane to a third person, who is apprehended

with the bird in his possession. All three

have violated the law—the first by illegally

taking the whooping crane; the second by

transporting an illegally taken whooping

crane; and the third by possessing an illegally taken whooping crane.

(2) Notwithstanding paragraph (d)(1)

of this section, Federal and State law

enforcement officers may possess, deliver, carry, transport or ship any endangered wildlife taken in violation of

the Act as necessary in performing

their official duties.

(e) Interstate or foreign commerce. It is

unlawful to deliver, receive, carry

transport, or ship in interstate or foreign commerce, by any means whatsoever, and in the course of a commercial

activity, any endangered wildlife.

(f) Sale or offer for sale. (1) It is unlawful to sell or to offer for sale in interstate or foreign commerce any endangered wildlife.

(2) An advertisement for the sale of

endangered wildlife which carries a

warning to the effect that no sale may

be consummated until a permit has

been obtained from the U.S. Fish and

Wildlife Service shall not be considered

an offer for sale within the meaning of

this section.

(g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c), (e) and (f)

of this section, any person may take;

export or re-import; deliver, receive,

carry, transport or ship in interstate or

foreign commerce, in the course of a

commercial activity; or sell or offer for

sale in interstate or foreign commerce

any endangered wildlife that is bred in

captivity in the United States provided

either that the wildlife is of a taxon

listed in paragraph (g)(6) of this section, or that the following conditions

are met:

(i) The wildlife is of a species having

a natural geographic distribution not

including any part of the United

States, or the wildlife is of a species

that the Director has determined to be

eligible in accordance with paragraph

(g)(5) of this section;

(ii) The purpose of such activity is to

enhance the propagation or survival of

the affected species;

(iii) Such activity does not involve

interstate or foreign commerce, in the

course of a commercial activity, with

respect to non-living wildlife;

(iv) Each specimen of wildlife to be

re-imported is uniquely identified by a

band, tattoo or other means that was

reported in writing to an official of the

Service at a port of export prior to export from the United States; and

(v) Any person subject to the jurisdiction of the United States who engages in any of the activities authorized by this paragraph does so in accordance with paragraphs (g) (2), (3)

and (4) of this section, and with all

other applicable regulations in this

Subchapter B.

(2) Any person subject to the jurisdiction of the United States seeking to engage in any of the activities authorized

by this paragraph must first register

with the Service (Office of Management Authority, U.S. Fish and Wildlife

Service, 4401 N. Fairfax Drive, Arlington, Virginia 22203). Requests for registration must be submitted on an official application form (Form 3–200-41)

provided by the Service, and must include the following information:

(i) The types of wildlife sought to be

covered by the registration, identified

by common and scientific name to the

taxonomic level of family, genus or

species;

(ii) A description of the applicant’s

experience in maintaining and propagating the types of wildlife sought to

be covered by the registration, and

when appropriate, in conducting research directly related to maintaining

and propagating such wildlife;

(iii) Photograph(s) or other evidence

clearly depicting the facilities where

such wildlife will be maintained; and
217

U.S. Fish and Wildlife Serv., Interior § 17.21

(iv) a copy of the applicant’s license

or registration, if any, under the animal welfare regulations of the U.S. Department of Agriculture (9 CFR part 2).

(3) Upon receiving a complete application, the Director will decide whether or not the registration will be approved. In making this decision, the

Director will consider, in addition to

the general criteria in § 13.21(b) of this

subchapter, whether the expertise, facilities or other resources available to

the applicant appear adequate to enhance the propagation or survival of

the affected wildlife. Public education

activities may not be the sole basis to

justify issuance of a registration or to

otherwise establish eligibility for the

exception granted in paragraph (g)(1) of

this section. Each person so registered

must maintain accurate written

records of activities conducted under

the registration, and allow reasonable

access to Service agents for inspection

purposes as set forth in §§ 13.46 and

13.47. Each person registered must submit to the Director an individual written annual report of activities, including all births, deaths and transfers of

any type.

(4) Any person subject to the jurisdiction of the United States seeking to export or conduct foreign commerce in

captive-bred endangered wildlife that

will not remain under the care of that

person must first obtain approval by

providing written evidence to satisfy

the Director that the proposed recipient of the wildlife has expertise, facilities or other resources adequate to enhance the propagation or survival of

such wildlife and that the proposed recipient will use such wildlife for purposes of enhancing the propagation or

survival of the affected species.

(5)(i) The Director will use the following criteria to determine if wildlife

of any species having a natural geographic distribution that includes any

part of the United States is eligible for

the provisions of this paragraph:

(A) Whether there is a low demand

for taking of the species from wild populations, either because of the success

of captive breeding or because of other

reasons, and

(B) Whether the wild populations of

the species are effectively protected

from unauthorized taking as a result of

the inaccessibility of their habitat to

humans or as a result of the effectiveness of law enforcement.

(ii) The Director will follow the procedures set forth in the Act and in the

regulations thereunder with respect to

petitions and notification of the public

and governors of affected States when

determining the eligibility of species

for purposes of this paragraph.

(iii) In accordance with the criteria

in paragraph (g)(5)(i) of this section,

the Director has determined the following species to be eligible for the provisions of this paragraph:

Laysan duck (Anas laysanensis).

(6) Any person subject to the jurisdiction of the United States seeking to engage in any of the activities authorized

by paragraph (g)(1) of this section may

do so without first registering with the

Service with respect to the bar-tailed

pheasant (Syrmaticus humiae), Elliot’s

pheasant (S. ellioti), Mikado pheasant

(S. mikado), brown eared pheasant

(Crossoptilon mantchuricum), white

eared pheasant (C. crossoptilon), cheer

pheasant (Catreus wallichii), Edward’s

pheasant (Lophura edwardsi), Swinhoe’s

pheasant (L. swinhoii), Chinese monal

(Lophophorus lhuysii), and Palawan peacock pheasant (Polyplectron emphanum);

parakeets of the species Neophema

pulchella and N. splendida; the Laysan

duck (Anas laysanensis); the whitewinged wood duck (Cairina scutulata);

and the inter-subspecific crossed or

‘‘generic’’ tiger (Panthera tigris) (i e.,

specimens not identified or identifiable

as members of the Bengal, Sumatran,

Siberian or Indochinese subspecies

(Panthera tigris tigris, P.t. sumatrae, P.t.

altaica and P.t. corbetti, respectively)

provided:

(i) The purpose of such activity is to

enhance the propagation or survival of

the affected exempted species;

(ii) Such activity does not involve

interstate or foreign commerce, in the

course of a commercial activity, with

respect to non-living wildlife;

(iii) Each specimen to be re-imported

is uniquely identified by a band, tattoo

or other means that was reported in

writing to an official of the Service at

a port of export prior to export of the

specimen from the United States;
218

§ 17.21 50 CFR Ch. I (10–1–98 Edition)

(iv) No specimens of the taxa in this

paragraph (g)(6) of this section that

were taken from the wild may be imported for breeding purposes absent a

definitive showing that the need for

new bloodlines can only be met by wild

specimens, that suitable foreign-bred,

captive individuals are unavailable,

and that wild populations can sustain

limited taking, and an import permit is

issued under §17.22;

(v) Any permanent exports of such

specimens meet the requirements of

paragraph (g)(4) of this section; and

(vi) Each person claiming the benefit

of the exception in paragraph (g)(1) of

this section must maintain accurate

written records of activities, including

births, deaths and transfers of specimens, and make those records accessible to Service agents for inspection

at reasonable hours as set forth in

§§13.46 and 13.47.

[40 FR 44415, Sept. 26, 1975, as amended at 40

FR 53400, Nov. 18, 1975; 41 FR 19226, May 11,

1976; 44 FR 31580, May 31, 1979; 44 FR 54007,

Sept. 17, 1979; 58 FR 68325, Dec. 27, 1993; 63 FR

48640, Sept. 11, 1998]

EFFECTIVE DATE NOTE: At 63 FR 48640,

Sept. 11, 1998, § 17.21 was amended by revising

paragraph (g), effective Oct. 13, 1998. For the

convenience of the user the superseded text

is set forth as follows:

§ 17.21 Prohibitions.

* * * * *

(g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c), (e) and (f) of this section, any person may take; import or export;

deliver, receive, carry, transport or ship in

interstate or foreign commerce, in the

course of a commercial activity; or sell or

offer for sale in interstate or foreign commerce any endangered wildlife that is bred is

captivity in the United States, provided the

principal purpose of these activities is to facilitate captive breeding, and provided the

following conditions are met:

(i) The wildlife is a species having a natural geographic distribution not including any

part of the United States, or the wildlife is a

species that the Director has determined to

be eligible in accordance with paragraph

(g)(5) of this section;

(ii) The purpose of such activity is to enhance the propagation or survival of the affected species;

(iii) Such activity does not involve interstate or foreign commerce, in the course of a

commercial activity, with respect to non-living wildlife;

(iv) Each specimen of wildlife to be imported is uniquely identified by a band, tattoo or other means that was reported in

writing to an official of the Service at a port

of export prior to export from the United

States, and

(v) Any person subject to the jurisdiction

of the United States who engages in any of

the activities authorized by this paragraph

does so in accordance with paragraphs (g) (2),

(3) and (4) of this section.

(2) Any person subject to the jurisdiction

of the United States seeking to engage in

any of the activities authorized by this paragraph must first register with the Service

(Federal Wildlife Permit Office, U.S. Fish

and Wildlife Service, Washington, DC 20240).

Requests for registration must be submitted

on an official application form (Form 3–200)

provided by the Service, and must include

the following information:

(i) The types of wildlife sought to be covered by the registration, identified by common and scientific name to the taxonomic

level of family, genus or species;

(ii) A description of the applicant’s experience in maintaining and propagating the

types of wildlife sought to be covered by the

registration, or in conducting research directly related to maintaining and propagating such wildlife;

(iii) A description, if appropriate, of the

means by which the applicant intends to

educate the public about the ecological role

and conservation needs of the affected species;

(iv) Photograph(s) or other evidence clearly depicting the facilities where such wildlife

will be maintained; and

(v) A copy of the applicant’s license or registration, if any, under the animal welfare

regulations of the U.S. Department of Agriculture (9 CFR part 2).

(3) Upon receiving a complete application,

the Director will decide whether or not the

registration will be approved. In making his

decision, the Director will consider, in addition to the general criteria in § 13.2(b) of this

subchapter, whether the expertise, facilities

or other resources available to the applicant

appear adequate to enhance the propagation

or survival of the affected wildlife. Each person so registered must maintain accurate

written records of activities conducted under

the registration and must submit to the Director a written annual report of such activities.

(4) Any person subject to the jurisdiction

of the United States seeking to export or

conduct foreign commerce in captive-bred

endangered wildlife which will not remain

under the care of that person must first obtain approval by providing written evidence

to satisfy the Director that the proposed recipient of the wildlife has expertise, facilities or other resources adequate to enhance

the propagation or survival of such wildlife
219

U.S. Fish and Wildlife Serv., Interior § 17.22

and that the proposed recipient will use such

wildlife for purposes of enhancing the propagation or survival of the affected species.

(5)(i) The Director shall use the following

criteria to determine if wildlife of any species having a natural geographic distribution

that includes any part of the United States

is eligible for the provisions of this paragraph:

(A) Whether there is a low demand for taking of the species from wild populations, either because of the success of captive breeding or because of other reasons, and

(B) Whether the wild populations of the

species are effectively protected from unauthorized taking as a result of the inaccessibility of their habitat to man or as a result

of the effectiveness of law enforcement.

(ii) The Director shall follow the procedures set forth in section 4(b) and section

4(f)(2)(A) of the Act and in the regulations

promulgated thereunder with respect to petitions and notification of the public and governors of affected States when determining

the eligibility of species for purposes of this

paragraph.

(iii) In accordance with the criteria in

paragraph (g)(5)(i) of this section, the Director has determined the following species to

be eligible for the provisions of this paragraph:

Laysan teal (Anas laysanensis).

§ 17.22 Permits for scientific purposes,

enhancement of propagation or survival, or for incidental taking.

Upon receipt of a complete application, the Director may issue a permit

authorizing any activity otherwise prohibited by § 17.21, in accordance with

the issuance criteria of this section, for

scientific purposes, for enhancing the

propagation or survival, or for the incidental taking of endangered wildlife.

Such permits may authorize a single

transaction, a series of transactions, or

a number of activities over a specific

period of time. (See § 17.32 for permits

for threatened species.) The Director

shall publish notice in the FEDERAL

REGISTER of each application for a permit that is made under this section.

Each notice shall invite the submission

from interested parties, within 30 days

after the date of the notice, of written

data, views, or arguments with respect

to the application. The 30-day period

may be waived by the Director in an

emergency situation where the life or

health of an endangered animal is

threatened and no reasonable alternative is available to the applicant.

Notice of any such waiver shall be published in the FEDERAL REGISTER within

10 days following issuance of the permit.

(a)(1) Application requirements for permits for scientific purposes or for the enhancement of propagation or survival. A

person wishing to get a permit for an

activity prohibited by § 17.21 submits

an application for activities under this

paragraph. The Service provides Form

3–200 for the application to which all of

the following must be attained:

(i) The common and scientific names

of the species sought to the covered by

the permit, as well as the number, age,

and sex of such species, and the activity sought to be authorized (such as

taking, exporting, selling in interstate

commerce);

(ii) A statement as to whether, at the

time of application, the wildlife sought

to be covered by the permit (A) is still

in the wild, (B) has already been removed from the wild, or (C) was born in

captivity;

(iii) A resume of the applicant’s attempts to obtain the wildlife sought to

be covered by the permit in a manner

which would not cause the death or removal from the wild of such wildlife;

(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and

place where such removal occurred; if

the wildlife sought to be covered by the

permit was born in captivity, the country and place where such wildlife was

born;

(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;

(vi) If the applicant seeks to have

live wildlife covered by the permit, a

complete description, including photographs or diagrams, of the facilities to

house and/or care for the wildlife and a

resume of the experience of those person who will be caring for the wildlife;

(vii) A full statement of the reasons

why the applicant is justified in obtaining a permit including the details

of the activities sought to be authorized by the permit;

(viii) If the application is for the purpose of enhancement of propagation, a
220

§ 17.22 50 CFR Ch. I (10–1–98 Edition)

statement of the applicant’s willingness to participate in a cooperative

breeding program and to maintain or

contribute data to a studbook;

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (a)(1) of this section,

the Director will decide whether or not

a permit should be issued. In making

this decision, the Director shall consider, in addition to the general criteria in § 13.21(b) of this subchapter, the

following factors:

(i) Whether the purpose for which the

permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife

sought to be covered by the permit;

(ii) The probable direct and indirect

effect which issuing the permit would

have on the wild populations of the

wildlife sought to be covered by the

permit;

(iii) Whether the permit, if issued,

would in any way, directly or indirectly, conflict with any known program intended to enhance the survival

probabilities of the population from

which the wildlife sought to be covered

by the permit was or would be removed;

(iv) Whether the purpose for which

the permit is required would be likely

to reduce the threat of extinction facing the species of wildlife sought to be

covered by the permit;

(v) The opinions or views of scientists

or other persons or organizations having expertise concerning the wildlife or

other matters germane to the application; and

(vi) Whether the expertise, facilities,

or other resources available to the applicant appear adequate to successfully

accomplish the objectives stated in the

application.

(3) Permit conditions. In addition to

the general conditions set forth in part

13 of this subchapter, every permit

issued under this paragraph shall be

subject to the special condition that

the escape of living wildlife covered by

the permit shall be immediately reported to the Service office designated

in the permit.

(4) Duration of permits. The duration

of permits issued under this paragraph

shall be designated on the face of the

permit.

(b)(1) Application requirements for permits for incidental taking. A person wishing to get a permit for an activity prohibited by § 17.21(c) submits an application for activities under this paragraph. The Service provides Form 3–200

for the application to which all of the

following must be attached:

(i) A complete description of the activity sought to be authorized;

(ii) The common and scientific names

of the species sought to be covered by

the permit, as well as the number, age,

and sex of such species, if known;

(iii) A conservation plan that specifies:

(A) The impact that will likely result

from such taking;

(B) What steps the applicant will

take to monitor, minimize, and mitigate such impacts, the funding that

will be available to implement such

steps, and the procedures to be used to

deal with unforeseen circumstances;

(C) What alternative actions to such

taking the applicant considered and

the reasons why such alternatives are

not proposed to be utilized; and

(D) Such other measures that the Director may require as being necessary

or appropriate for purposes of the plan;

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (b)(1) of this section,

the Director will decide whether or not

a permit should be issued. The Director

shall consider the general criteria in

§ 13.21(b) of this subchapter and shall

issue the permit if he finds that: (i) The

taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant

will ensure that adequate funding for

the conservation plan and procedures

to deal with unforeseen circumstances

will be provided; (iv) the taking will

not appreciably reduce the likelihood

of the survival and recovery of the species in the wild; (v) the measures, if

any, required under paragraph

(b)(1)(iii)(D) of this section will be met;

and (vi) he has received such other assurances as he may require that the

plan will be implemented. In making

his decision, the Director shall also

consider the anticipated duration and

geographic scope of the applicant’s

planned activities, including the
221

U.S. Fish and Wildlife Serv., Interior § 17.22

amount of listed species habitat that is

involved and the degree to which listed

species and their habitats are affected.

(3) Permit conditions. In addition to

the general conditions set forth in part

13 of this subchapter, every permit

issued under this paragraph shall contain such terms and conditions as the

Director deems necessary or appropriate to carry out the purposes of the

permit and the conservation plan including, but not limited to, monitoring

and reporting requirements deemed

necessary for determining whether

such terms and conditions are being

complied with. The Director shall rely

upon existing reporting requirements

to the maximum extent practicable.

(4) Duration of permits. The duration

of permits issued under this paragraph

shall be sufficient to provide adequate

assurances to the permittee to commit

funding necessary for the activities authorized by the permit, including conservation activities and land use restrictions. In determining the duration

of a permit, the Director shall consider

the duration of the planned activities,

as well as the possible positive and negative effects associated with permits of

the proposed duration on listed species,

including the extent to which the conservation plan will enhance the habitat

of listed species and increase the longterm survivability of such species.

(5) Assurances provided to permittee in

case of changed or unforeseen circumstances. The assurances in this

paragraph (b)(5) apply only to incidental take permits issued in accordance

with paragraph (b)(2) of this section

where the conservation plan is being

properly implemented, and apply only

with respect to species adequately covered by the conservation plan. These

assurances cannot be provided to Federal agencies. This rule does not apply

to incidental take permits issued prior

to March 25, 1998. The assurances provided in incidental take permits issued

prior to March 25, 1998 remain in effect,

and those permits will not be revised as

a result of this rulemaking.

(i) Changed circumstances provided for

in the plan. If additional conservation

and mitigation measures are deemed

necessary to respond to changed circumstances and were provided for in

the plan’s operating conservation program, the permittee will implement

the measures specified in the plan.

(ii) Changed circumstances not provided

for in the plan. If additional conservation and mitigation measures are

deemed necessary to respond to

changed circumstances and such measures were not provided for in the plan’s

operating conservation program, the

Director will not require any conservation and mitigation measures in addition to those provided for in the plan

without the consent of the permittee,

provided the plan is being properly implemented.

(iii) Unforeseen circumstances. (A) In

negotiating unforeseen circumstances,

the Director will not require the commitment of additional land, water, or

financial compensation or additional

restrictions on the use of land, water,

or other natural resources beyond the

level otherwise agreed upon for the species covered by the conservation plan

without the consent of the permittee.

(B) If additional conservation and

mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require

additional measures of the permittee

where the conservation plan is being

properly implemented, but only if such

measures are limited to modifications

within conserved habitat areas, if any,

or to the conservation plan’s operating

conservation program for the affected

species, and maintain the original

terms of the conservation plan to the

maximum extent possible. Additional

conservation and mitigation measures

will not involve the commitment of 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 original terms

of the conservation plan without the

consent of the permittee.

(C) The Director will have 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 Director will consider, but not be limited to, the following factors:
222

§ 17.23 50 CFR Ch. I (10–1–98 Edition)

(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.

(6) Nothing in this rule will be construed to limit or constrain the Director, any Federal, State, local, or Tribal

government agency, or a private entity, from taking additional actions at

its own expense to protect or conserve

a species included in a conservation

plan.

(c) Objection to permit issuance. (1) In

regard to any notice of a permit application published in the FEDERAL REGISTER, any interested party that objects to the issuance of a permit, in

whole or in part, may, during the comment period specified in the notice, request notification of the final action to

be taken on the application. A separate

written request shall be made for each

permit application. Such a request

shall specify the Service’s permit application number and state the reasons

why that party believes the applicant

does not meet the issuance criteria

contained in §§ 13.21 and 17.22 of this

subchapter or other reasons why the

permit should not be issued.

(2) If the Service decides to issue a

permit contrary to objections received

pursuant to paragraph (c)(1) of this section, then the Service shall, at least

ten days prior to issuance of the permit, make reasonable efforts to contact by telephone or other expedient

means, any party who has made a request pursuant to paragraph (c)(1) of

this section and inform that party of

the issuance of the permit. However,

the Service may reduce the time period

or dispense with such notice if it determines that time is of the essence and

that delay in issuance of the permit

would: (i) Harm the specimen or population involved; or (ii) unduly hinder

the actions authorized under the permit.

(3) The Service will notify any party

filing an objection and request for notice under paragraph (c)(1) of this section of the final action taken on the

application, in writing. If the Service

has reduced or dispensed with the notice period referred to in paragraph

(c)(2) of this section, it will include its

reasons therefore in such written notice.

[50 FR 39687, Sept. 30, 1985, as amended at 63

FR 8871, Feb. 23, 1998; 63 FR 52635, Oct. 1,

1998]

§ 17.23 Economic hardship permits.

Upon receipt of a complete application, the Director may issue a permit

authorizing any activity otherwise prohibited by § 17.21, in accordance with

the issuance criteria of this section in

order to prevent undue economic hardship. The Director shall publish notice

in the FEDERAL REGISTER of each application for a permit that is made under

this section. Each notice shall invite

the submission from interested parties,

within 30 days after the date of the notice, of written data, views, or arguments with respect to the application.

The 30-day period may be waived by

the Director in an emergency situation

where the life or health of an endangered animal is threatened and no reasonable alternative is available to the

applicant. Notice of any such waiver

shall be published in the FEDERAL REGISTER within 10 days following issuance

of the permit.

(a) Application requirements. Applications for permits under this section

must be submitted to the Director by

the person allegedly suffering undue

economic hardship because his desired

activity is prohibited by § 17.21. Each

application must be submitted on an

official application form (Form 3–200)

provided by the Service, and must include, as an attachment, all of the information required in § 17.22 plus the

following additional information:

(1) The possible legal, economic or

subsistence alternatives to the activity

sought to be authorized by the permit;

(2) A full statement, accompanied by

copies of all relevant contracts and
223

U.S. Fish and Wildlife Serv., Interior § 17.23

correspondence, showing the applicant’s involvement with the wildlife

sought to be covered by the permit (as

well as his involvement with similar

wildlife), including, where applicable,

that portion of applicant’s income derived from the taking of such wildlife,

or the subsistence use of such wildlife,

during the calendar year immediately

preceding either the notice in the FEDERAL REGISTER of review of the status

of the species or of the proposal to list

such wildlife as endangered, whichever

is earliest;

(3) Where applicable, proof of a contract or other binding legal obligation

which:

(i) Deals specifically with the wildlife

sought to be covered by the permit;

(ii) Became binding prior to the date

when the notice of a review of the status of the species or the notice of proposed rulemaking proposing to list

such wildlife as endangered was published in the FEDERAL REGISTER,

whichever is earlier; and

(iii) Will cause monetary loss of a

given dollar amount if the permit

sought under this section is not granted.

(b) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (a) of this section, the

Director will decide whether or not a

permit should be issued under any of

the three categories of economic hardship, as defined in section 10(b)(2) of

the Act. In making his decisions, the

Director shall consider, in addition to

the general criteria in § 13.21(b) of this

subchapter, the following factors:

(1) Whether the purpose for which the

permit is being requested is adequate

to justify removing from the wild or

otherwise changing the status of the

wildlife sought to be covered by the

permit;

(2) The probable direct and indirect

effect which issuing the permit would

have on the wild populations of the

wildlife sought to be covered by the

permit;

(3) The economic, legal, subsistence,

or other alternatives or relief available

to the applicant;

(4) The amount of evidence that the

applicant was in fact party to a contract or other binding legal obligation

which;

(i) Deals specifically with the wildlife

sought to be covered by the permit;

and

(ii) Became binding prior to the date

when the notice of a review of the status of the species or the notice of proposed rulemaking proposing to list

such wildlife as endangered was published in the FEDERAL REGISTER,

whichever is earlier.

(5) The severity of economic hardship

which the contract or other binding

legal obligation referred to in paragraph (b)(4) of this section would cause

if the permit were denied;

(6) Where applicable, the portion of

the applicant’s income which would be

lost if the permit were denied, and the

relationship of that portion to the balance of his income;

(7) Where applicable, the nature and

extent of subsistence taking generally

by the applicant; and

(8) The likelihood that applicant can

reasonably carry out his desired activity within one year from the date a notice is published in the FEDERAL REGISTER to review status of such wildlife,

or to list such wildlife as endangered,

whichever is earlier.

(c) Permit conditions. In addition to

the general conditions set forth in part

13 of this subchapter, every permit

issued under this section shall be subject to the following special conditions:

(1) In addition to any reporting requirements contained in the permit

itself, the permittee shall also submit

to the Director a written report of his

activities pursuant to the permit. Such

report must be postmarked or actually

delivered no later than 10 days after

completion of the activity.

(2) The death or escape of all living

wildlife covered by the permit shall be

immediately reported to the Service’s

office designated in the permit.

(d) Duration of permits issued under

this section shall be designated on the

face of the permit. No permit issued

under this section, however, shall be

valid for more than one year from the

date a notice is published in the FEDERAL REGISTER to review status of such

wildlife, or to list such wildlife as endangered, whichever is earlier.

[40 FR 44415, Sept. 26, 1975, as amended at 40

FR 53400, Nov. 18, 1975; 40 FR 58307, Dec. 16,

1975; 50 FR 39688, Sept. 30, 1985]
224

§ 17.31 50 CFR Ch. I (10–1–98 Edition)

Subpart D—Threatened Wildlife

§ 17.31 Prohibitions.

(a) Except as provided in subpart A of

this part, or in a permit issued under

this subpart, all of the provisions in

§ 17.21 shall apply to threatened wildlife, except §17.21(c)(5).

(b) In addition to any other provisions of this part 17, any employee or

agent of the Service, of the National

Marine Fisheries Service, or of a State

conservation agency which is operating

a conservation program pursuant to

the terms of a Cooperative Agreement

with the Service in accordance with

section 6(c) of the Act, who is designated by his agency for such purposes, may, when acting in the course

of his official duties, take those threatened species of wildlife which are covered by an approved cooperative agreement to carry out conservation programs.

(c) Whenever a special rule in §§ 17.40

to 17.48 applies to a threatened species,

none of the provisions of paragraphs (a)

and (b) of this section will apply. The

special rule will contain all the applicable prohibitions and exceptions.

[43 FR 18181, Apr. 28, 1978, as amended at 44

FR 31580, May 31, 1979]

§ 17.32 Permits—general.

Upon receipt of a complete application the Director may issue a permit

for any activity otherwise prohibited

with regard to threatened wildlife.

Such permit shall be governed by the

provisions of this section unless a special rule applicable to the wildlife, appearing in §§ 17.40 to 17.48, of this part

provides otherwise. Permits issued

under this section must be for one of

the following purposes: Scientific purposes, or the enhancement of propagation or survival, or economic hardship,

or zoological exhibition, or educational

purposes, or incidental taking, or special purposes consistent with the purposes of the Act. Such permits may authorize a single transaction, a series of

transactions, or a number of activities

over a specific period of time.

(a)(1) Application requirements for permits for scientific purposes, or the enhancement of propagation or survival, or

economic hardship, or zoological exhibition, or educational purposes, or special

purposes consistent with the purposes of

the Act. A person wishing to get a permit for an activity prohibited by § 17.31

submits an application for activities

under this paragraph. The Service provides Form 3–200 for the application to

which as much of the following information relating to the purpose of the

permit must be attached:

(i) The Common and scientific names

of the species sought to be covered by

the permit, as well as the number, age,

and sex of such species, and the activity sought to be authorized (such as

taking, exporting, selling in interstate

commerce);

(ii) A statement as to whether, at the

time of application, the wildlife sought

to be covered by the permit (A) is still

in the wild, (B) has already been removed from the wild, or (C) was born in

captivity;

(iii) A resume of the applicant’s attempts to obtain the wildlife sought to

be covered by the permit in a manner

which would not cause the death or removal from the wild of such wildlife;

(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and

place where such removal occurred; if

the wildlife sought to be covered by

permit was born in captivity, the country and place where such wildlife was

born;

(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;

(vi) If the applicant seeks to have

live wildlife covered by the permit, a

complete description, including photographs or diagrams, of the facilities to

house and/or care for the wildlife and a

resume of the experience of those persons who will be caring for the wildlife;

(vii) A full statement of the reasons

why the applicant is justified in obtaining a permit including the details

of the activities sought to be authorized by the permit;

(viii) If the application is for the purpose of enhancement of propagation, a

statement of the applicant’s willingness to participate in a cooperative

breeding program and to maintain or

contribute data to a studbook;
245

U.S. Fish and Wildlife Serv., Interior § 17.50

this section, all prohibitions of 50 CFR

17.31 and exemptions of 50 CFR 17.32

shall apply to the bull trout Columbia

River and Klamath River population

segments within the contiguous United

States.

(2) Exceptions. No person shall take

this species, except in accordance with

applicable State and Native American

Tribal fish and wildlife conservation

laws and regulations, as constituted in

all respects relevant to protection of

bull trout in effect on June 10, 1998.

(3) Any violation of applicable State

and Native American Tribal fish and

wildlife conservation laws or regulations with respect to the taking of this

species is also a violation of the Endangered Species Act.

(4) No person shall possess, sell, deliver, carry, transport, ship, import, or

export, any means whatsoever, any

such species taken in violation of this

section or in violation of applicable

State and Native American Tribal fish

and game laws and regulations.

(5) It is unlawful for any person to attempt to commit, solicit another to

commit, or cause to be committed, any

offense defined in paragraphs (v) (2)

through (4) of this section.

[40 FR 44415, Sept. 26, 1975]

EDITORIAL NOTE: For FEDERAL REGISTER citations to § 17.44, see the List of CFR Sections Affected in the Finding Aids section of

this volume.

§ 17.45 Special rules—snails and clams.

[Reserved]

§ 17.46 Special rules—crustaceans.

(a) Madison Cave isopod (Antrolana

lira). (1) All provisions of § 17.31 (a) and

(b) apply to this species except that it

may be taken for scientific purposes

without Federal permits issued pursuant to these regulations: Provided, that

all other Federal, State, or local laws,

regulations, ordinances or other restrictions or limitations have been

complied with.

(b) [Reserved]

[47 FR 43701, Oct. 4, 1982]

§ 17.47 [Reserved]

§ 17.48 Special rules—common sponges

and other forms. [Reserved]

Subpart E—Similarity of

Appearance

SOURCE: 42 FR 32377, June 24, 1977, unless

otherwise noted.

§ 17.50 General.

(a) Whenever a species which is not

Endangered or Threatened closely resembles an Endangered or Threatened

species, such species may be treated as

either Endangered or Threatened if the

director makes such determination in

accordance with section 4(e) of the Act

and the criteria of paragraph (b) of this

section. After the Director has made

such determination in accordance with

the notification procedures specified in

the Act, such species shall appear in

the list in § 17.11 (Wildlife) or § 17.12

(Plants) with the notation ‘‘(S/A)’’

(similarity of appearance) in the ‘‘Status’’ column, following either a letter

‘‘E’’ or a letter ‘‘T’’ to indicate whether the species is being treated as Endangered or Threatened.

(b) In determining whether to treat a

species as Endangered or Threatened

due to similarity of appearance, the Director shall consider the criteria in

section 4(e) of the Act, as indicated

below:

(1) The degree of difficulty enforcement personnel would have in distinguishing the species, at the point in

question, from an Endangered or

Threatened species (including those

cases where the criteria for recognition

of a species are based on geographical

boundaries);

(2) The additional threat posed to the

Endangered or Threatened species by

the loss of control occasioned because

of the similarity of appearance; and

(3) The probability that so designating a similar species will substantially

facilitate enforcement and further the

purposes and policy of the Act.

Example 1. The ABC sparrow is Endangered

wildlife. The ABD sparrow is a subspecies

that is so similar to the ABC sparrow that
88

§ 222.22 50 CFR Ch. II (10–1–98 Edition)

Act of 1973, as evidenced by its inclusion on the list of endangered fish or

wildlife (see 50 CFR chapter I, part 17)

or which the Secretary of the Interior

determined to be endangered under the

Endangered Species Conservation Act

of 1969 and which are now under the jurisdictional responsibilities of the Secretary of Commerce, without a valid

permit issued pursuant to this part.

(Pub. L. 94–359)

[41 FR 36028, Aug. 26, 1976]

§ 222.22 Permits for the incidental taking of endangered species.

(a) Scope. (1) The Assistant Administrator may issue permits to take endangered marine species incidentally

to an otherwise lawful activity under

section 10(a)(1)(B) of the Endangered

Species Act of 1973. The regulations in

this section apply only to those endangered species under the jurisdiction of

the Secretary of Commerce identified

in §222.23(a).

(2) If the applicant represents an individual or a single entity, such as a

corporation, the Assistant Administrator will issue an individual incidental take permit. If the applicant represents a group or organization whose

members conduct the same or a similar

activity in the same geographical area

with similar impacts on endangered

marine species, the Assistant Administrator will issue a general incidental

take permit. To be covered by a general incidental take permit, each individual conducting the activity must

have a certificate of inclusion issued

under paragraph (f) of this section.

(b) Permit application procedures. Applications should be sent to the Assistant Administrator for Fisheries, National Marine Fisheries Service, 1335

East West Highway, Silver Spring, MD

20910. The sufficiency of the application

will be determined by the Assistant

Administrator in accordance with the

requirements of this section. At least

120 days should be allowed for processing. Each application must be signed

and dated and include the following:

(1) The type of application, either:

(i) Application for an Individual Incidental Take Permit under the Endangered Species Act of 1973, or

(ii) Application for a General Incidental Take Permit under the Endangered Species Act of 1973.

(2) The name, address and telephone

number of the applicant. If the applicant is a partnership, corporate entity

or is representing a group or organization, the applicable details.

(3) The species or stocks, by common

and scientific name, and a description

of the status, distribution, seasonal

distribution, habitat needs, feeding

habits and other biological requirements of the affected species or stocks.

(4) A detailed description of the proposed activity, including the anticipated dates, duration and specific location. If the request is for a general incidental take permit, an estimate of the

total level of activity expected to be

conducted.

(5) A conservation plan, based on the

best scientific and commercial data

available, which specifies

(i) The anticipated impact (i.e.,

amount, extent and type of anticipated

taking) of the proposed activity on the

species or stocks;

(ii) The anticipated impact of the

proposed activity on the habitat of the

species or stocks and the likelihood of

restoration of the affected habitat;

(iii) The steps (specialized equipment, methods of conducting activities, or other means) that will be taken

to monitor, minimize and mitigate

such impacts, and the funding available to implement such measures; and

(iv) The alternative actions to such

taking that were considered and the

reasons why those alternatives are not

being used.

(v) A list of all sources of data used

in preparation of the plan, including

reference reports, environmental assessments and impact statements, and

personal communications with recognized experts on the species or activity

who may have access to data not published in current literature.

(c) Issuance criteria. (1) In determining whether to issue a permit, the Assistant Administrator will consider the

following:

(i) The status of the affected species

or stocks;

(ii) The potential severity of direct,

indirect and cumulative impacts on the
89

National Marine Fisheries Service/NOAA, Commerce § 222.22

species or stocks and habitat as a result of the proposed activity;

(iii) The availability of effective

monitoring techniques;

(iv) The use of the best available

technology for minimizing or mitigating impacts; and

(v) The views of the public, scientists

and other interested parties knowledgeable of the species or stocks or

other matters related to the application.

(2) To issue the permit, the Assistant

Administrator must find that:

(i) The taking will be incidental;

(ii) The applicant will, to the maximum extent practicable, monitor, minimize and mitigate the impacts of such

taking;

(iii) The taking will not appreciably

reduce the likelihood of the survival

and recovery of the species in the wild;

(iv) The applicant has amended the

conservation plan to include any measures (not originally proposed by the applicant) that the Assistant Administrator determines are necessary or appropriate; and

(v) There are adequate assurances

that the conservation plan will be

funded and implemented, including any

measures required by the Assistant Administrator.

(d) Permit conditions. In addition to

the general conditions set forth in part

220 of this chapter, every permit issued

under this section will contain such

terms and conditions as the Assistant

Administrator deems necessary and appropriate, including, but not limited to

the following:

(1) Reporting requirements or rights

of inspection for determining whether

the terms and conditions are being

complied with;

(2) The species and number of animals covered;

(3) The authorized method of taking;

(4) The procedures to be used to handle or dispose of any animals taken;

and

(5) The payment of a fee to reimburse

the National Marine Fisheries Service

the cost of processing the application.

(e) Duration of permits. The duration

of permits issued under this section

will be such as to provide adequate assurances to the permit holder to commit funding necessary for the activities

authorized by the permit, including

conservation activities. In determining

the duration of a permit, the Assistant

Administrator will consider the duration of the proposed activities, as well

as the possible positive and negative

effects associated with issuing a permit

of the proposed duration on listed species, including the extent to which the

conservation plan is likely to enhance

the habitat of the endangered species

or increase the long-term survivability

of the species.

(f) Certificates of inclusion. (1) Any individual who wishes to conduct an activity covered by a general incidental

take permit must apply to the Assistant Administrator for a certificate of

inclusion. Each application must be

signed and dated and include the following:

(i) The general incidental take permit under which the applicant wants

coverage.

(ii) The name, address and telephone

number of the applicant. If the applicant is a partnership or a corporate entity, the applicable details.

(iii) A description of the activity the

applicant seeks to have covered under

the general incidental take permit including the anticipated dates, duration, and specific location; and

(iv) A signed certification that the

applicant has read and understands the

general incidental take permit and the

conservation plan, will comply with

their terms and conditions, and will

fund and implement applicable measures of the conservation plan.

(2) To issue a certificate of inclusion,

the Assistant Administrator must find

that:

(i) The applicant will be engaged in

the activity covered by the general permit and

(ii) The applicant has made adequate

assurances that the applicable measures of the conservation plan will be

funded and implemented.

(g) Assurances provided to permittee in

case of changed or unforeseen circumstances. The assurances in this

paragraph (g) apply only to incidental

take permits issued in accordance with

paragraph (c) of this section where the

conservation plan is being properly implemented, and apply only with respect

to species adequately covered by the
90

§ 222.23 50 CFR Ch. II (10–1–98 Edition)

conservation plan. These assurances

cannot be provided to Federal agencies.

This rule does not apply to incidental

take permits issued prior to March 25,

1998. The assurances provided in incidental take permits issued prior to

March 25, 1998 remain in effect, and

those permits will not be revised as a

result of this rulemaking.

(1) Changed circumstances provided for

in the plan. If additional conservation

and mitigation measures are deemed

necessary to respond to changed circumstances and were provided for in

the plan’s operating conservation program, the permittee will implement

the measures specified in the plan.

(2) Changed circumstances not provided

for in the plan. If additional conservation and mitigation measures are

deemed necessary to respond to

changed circumstances and such measures were not provided for in the plan’s

operating conservation program,

NMFS will not require any conservation and mitigation measures in addition to those provided for in the plan

without the consent of the permittee,

provided the plan is being properly implemented.

(3) Unforeseen circumstances. (i) In negotiating unforeseen circumstances,

NMFS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or

other natural resources beyond the

level otherwise agreed upon for the species covered by the conservation plan

without the consent of the permittee.

(ii) If additional conservation and

mitigation measures are deemed necessary to respond to unforeseen circumstances, NMFS may require additional measures of the permittee where

the conservation plan is being properly

implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to

the conservation plan’s operating conservation program for the affected species, and maintain the original terms

of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will

not involve the commitment of 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 original terms

of the conservation plan without the

consent of the permittee.

(iii) NMFS will have 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. NMFS will consider, but

not be limited to, the following factors:

(A) Size of the current range of the

affected species;

(B) Percentage of range adversely affected by the conservation plan;

(C) Percentage of range conserved by

the conservation plan;

(D) Ecological significance of that

portion of the range affected by the

conservation plan;

(E) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and

(F) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.

(h) Nothing in this rule will be construed to limit or constrain the Assistant Administrator, any Federal, State,

local, or tribal government agency, or

a private entity, from taking additional actions at its own expense to

protect or conserve a species included

in a conservation plan.

[55 FR 20606, May 18, 1990, as amended at 63

FR 8872, Feb. 23, 1998]

§ 222.23 Permits for scientific purposes

or to enhance the propagation or

survival of the affected endangered

species.

(a) The Director, National Marine

Fisheries Service, may issue permits

for scientific purposes or to enhance

the propagation or survival of the affected endangered species which authorize, under such terms and conditions as he may prescribe, taking, importation, or certain other acts with

respect to endangered species otherwise prohibited by section 9 of the

Endangered Species Act of 1973. The
91

National Marine Fisheries Service/NOAA, Commerce § 222.23

species listed as endangered under either the Endangered Species Conservation Act of 1969 or the Endangered Species Act of 1973 and currently under the

jurisdiction of the Secretary of Commerce are: Shortnose sturgeon

(Acipenser brevirostrum); Totoaba

(Cynoscian macdonaldi), Snake River

sockeye salmon (Oncorhynchusnerka),

Umpqua River cutthroat trout

(Oncorhynchus clarki clarki); Southern

California steelhead (Oncorhynchus

mykiss), which includes all naturally

spawned populations of steelhead (and

their progeny) in streams from the

Santa Maria River, San Luis Obispo

County, California (inclusive) to

Malibu Creek, Los Angeles County,

California (inclusive); Upper Columbia

River steelhead (Oncorhynchus mykiss),

which includes the Wells Hatchery

stock and all naturally spawned populations of steelhead (and their progeny)

in streams in the Columbia River Basin

upstream from the Yakima River,

Washington, to the United States-Canada Border; Sacramento River winterrun chinook salmon (Oncorhynchus

tshawytscha); Western North Pacific

(Korean) gray whale (Eschrichtius

robustus), Blue whale (Balaenoptera

musculus), Humpback whale (Megaptera

novaeangliae), Bowhead whale

(Balaenamysticetus), Right whales

(Eubalaena spp.), Fin or finback whale

(Balaenoptera physalus), Sei whale

(Balaenoptera borealis), Sperm whale

(Physeter catodon); Cochito (Phocoena

Sinus), Chinese river dolphin (Lipotes

vexillifer); Indus River dolphin

(Platanista minor); Caribean monk seal

(Monachus tropicalis) Hawaiian monk

seal (Monachus schauinslandi); Mediterranean monk seal (Monachus

monachus); Saimaa seal (Phoca hispida

saimensis); Steller sea lion (Eumetopias

jubatus), western population, which

consists of Steller sea lions from breeding colonies located west of 144° W.

long.; Leatherback sea turtle

(Dermochelys coriacea), Pacific

hawksbill sea turtle (Eretmochelys

imbricata bissa), Atlantic hawksbill sea

turtle (Eretmochelys imbricata

imbricata), Atlantic ridley sea turtle

(Lepidochelys kempii). Green sea turtle

(Chelonia mydas) breeding colony populations in Florida and on the Pacific

coast of Mexico, and the olive ridley

sea turtle (Lepidochelys olivacea) breeding colony population on the Pacific

coast of Mexico. Of these, the National

Marine Fisheries Service has sole agency jurisdiction for sea turtles while the

turtles are in the water and the U.S.

Fish and Wildlife Service has jurisdiction for sea turtles while the turtles

are on land. Within the jurisdiction of

a State, more restrictive State laws or

regulations in regard to endangered

species shall prevail in regard to taking. Proof of compliance with applicable State laws will be required before a

permit will be issued.

(b) Application procedures. To obtain

such a permit, an application must be

made to the Director in accordance

with this subpart, except for marine

mammal permits which shall be issued

in accordance with the provisions of

part 216, subpart D of this chapter, and

sea turtle permits which shall be issued

in accordance with part 220, subpart E

of this chapter. The sufficiency of the

application shall be determined by the

Director in accordance with the requirements of this part and, in that

connection, he may waive any requirement for information, or require any

elaboration or further information

deemed necessary. The following information will be used as the basis for determining whether an application is

complete and whether a permit for scientific purposes or to enhance the

propagation or survival of the affected

endangered species should be issued by

the Director. An original and four copies of the completed application shall

be submitted to the Director, National

Marine Fisheries Service, National

Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce, Washington, DC 20235. Assistance may be obtained by writing the

Director or calling the Marine Mammal and Endangered Species Division

in Washington, DC (202–343–9445 and effective December 2, 1974, it will become

202–634–7529). At least 45 days should be

allowed for processing. An application

for a permit shall provide the following

information (when the information requested is not applicable put ‘‘N.A.’’)

and such other information that the

Director may require:

(1) Title: As applicable, either:
92

§ 222.23 50 CFR Ch. II (10–1–98 Edition)

(i) Application for Permit for Scientific Purposes under the Endangered

Species Act of 1973; or

(ii) Application for Permit to Enhance the Propagation or Survival of

the Endangered Species Under the Endangered Species Act of 1973.

(2) The date of the application.

(3) The identity of the applicant including complete name, address, and

telephone number. If the applicant is a

partnership or a corporate entity set

forth the details. If the endangered species is to be utilized by a person other

than the Applicant, set forth the name

of that person and such other information as would be required if such person

were an Applicant.

(4) A description of the purpose of the

proposed acts, including:

(i) A detailed justification of the

need for the endangered species, including a discussion of possible alternatives, whether or not under the control of the applicant; and

(ii) A detailed description of how the

species will be used.

(5) A detailed description of the project, or program, in which the endangered species is to be used, including:

(i) The period of time over which the

project or program will be conducted;

(ii) A list of the names and addresses

of the sponsors or cooperating institutions and the scientists involved;

(iii) A copy of the formal research

proposal or contract if one has been

prepared;

(iv) A statement of whether the proposed project or program has broader

significance than the individual researcher’s goals (i.e., does the proposed

project or program respond directly or

indirectly to recommendation of any

national or international scientific

body charged with research or management of the endangered species, and, if

so, how?); and

(v) A description of the arrangements, if any, for the disposition of any

dead specimen or its skeleton or other

remains, for the continued benefit to

science, in a museum or other institutional collection.

(6) A description of the endangered

species which is the subject of the application, including the following:

(i) A list of each species and the number of each, including the common and

scientific name; the subspecies (if applicable); population group, and range;

(ii) A physical description of each

animal, including the age, size, and

sex;

(iii) A list of the probable dates of

capture or other taking, importation,

exportation, and other acts which require a permit, for each animal, and

the location of capture or other taking,

importation, exportation, and other

acts which require a permit, as specifically as possible;

(iv) A description of the status of the

stock of each species related insofar as

possible to the location or area of taking;

(v) A description of the manner of

taking for each animal, including the

gear to be used;

(vi) The name and qualifications of

the persons or entity which will capture or otherwise take the animals;

(vii) If the capture or other taking is

to be done by a contractor, a statement

as to whether a qualified member of

your staff (include name(s) and qualifications) will supervise or observe the

capture or other taking. Accompany

such statement with a copy of the proposed contract or a letter from the contractor indicating agreement to capture or otherwise taken the animals,

should a permit be granted;

(7) A description of the manner of

transportation of any live animal

taken, imported, exported, or shipped

in interstate commerce, including:

(i) Mode of transportation;

(ii) Name of transportation company;

(iii) Length of time in transit for the

transfer of the animal(s) from the capture site to the holding facility;

(iv) Length of time in transit for any

future move or transfer of the animal(s) that is planned;

(v) The qualifications of the common

carrier or agent used for transportation of the animals;

(vi) A description of the pen, tank,

container, cage, cradle, or other devices used, both to hold the animal at

the capture site and during transportation;

(vii) Special care before and during

transportation, such as salves, antibiotics, moisture; and
93

National Marine Fisheries Service/NOAA, Commerce § 222.23

(viii) A statement as to whether the

animals will be accompanied by a veterinarian or other similarly qualified

person, and the qualifications of such

person.

(8) Describe the contemplated care

and maintenance of any live animals

sought, including a complete description of the facilities where any such

animals will be maintained including:

(i) The dimensions of the pools or

other holding facilities and the number, sex, and age of animals by species

to be held in each;

(ii) The water supply, amount, and

quality;

(iii) The diet, amount and type, for

all animals;

(iv) Sanitation practices used;

(v) Qualifications and experience of

the staff; and

(vi) A written certification from a licensed veterinarian knowledgeable

about the species (or related species) or

group which is the subject of the application, or from a recognized expert on

the species (or related species) or group

covered in the application that he has

personally reviewed the amendments

for transporting and maintaining the

animal(s) and that in his opinion they

are adequate to provide for the wellbeing of the animal; and

(vii) The availability in the future of

a consulting expert or veterinarian

meeting paragraph (b)(8)(vi) requirements of this section;

(9) A statement of willingness to participate in a cooperative breeding program and maintain or contribute data

to a stud book.

(10) A statement of how the applicant’s proposed project or program will

enhance or benefit the wild population.

(11) For the 5 years preceding the

date of this application, provide a detailed description of all mortalities involving species which were under the

control of or utilized by the applicant

and are either presently listed as endangered species or are taxonomically

related within the Order to the species

which is the subject of this application,

including:

(i) A list of all endangered species

and species related to the species which

is the subject of this application; captured, transported, maintained, or utilized by the applicant for scientific

purposes or to enhance the propagation

or survival of the affected species, and/

or for all such species caused to be captured, transported, maintained, or utilized for scientific purposes or to enhance the propagation or survival of

the affected species, by the Applicant;

(ii) The numbers of mortalities

among such animals by species, by

date, location of capture, i.e., from

which population, and location of such

mortalities;

(iii) The cause(s) of any such mortalities; and

(iv) The steps which have been taken

by Applicant to avoid or decrease any

such mortalities.

(12) A certification in the following

language:

I hereby certify that the foregoing information is complete, true and correct to the

best of my knowledge and belief. I understand that this information is submitted for

the purpose of obtaining a permit under the

Endangered Species Act of 1973 (87 Stat. 864,

Pub. L. 93–205, 16 U.S.C. 1531 et seq.) and regulations promulgated thereunder, and that

any false statement may subject me to the

criminal penalties of 18 U.S.C. 1001, or to

penalties under the Endangered Species Act

of 1973.

(13) The applicant and/or an officer

thereof must sign the application.

(c) Issuance criteria. The Director

shall specifically consider, among

other criteria, the following in determining whether to issue a permit for

scientific purposes or to enhance the

propagation or survival of the affected

endangered species:

(1) Whether the permit was applied

for in good faith;

(2) Whether the permit if granted and

exercised will not operate to the disadvantage of the endangered species;

(3) Whether the permit would be consistent with the purposes and policy

set forth in section 2 of the Act;

(4) Whether the permit would further

a bona fide and necessary or desirable

scientific purpose or enhance the propagation or survival of the endangered

species, taking into account the benefits anticipated to be derived on behalf

of the endangered species;

(5) The status of the population of

the requested species, and the effect of

the proposed action on the population,

both direct and indirect;
94

§ 222.24 50 CFR Ch. II (10–1–98 Edition)

(6) If a live animal is to be taken,

transported, or held in captivity—the

applicant’s qualifications for the proper care and maintenance of the species

and the adequacy of his facilities;

(7) Whether alternative non-endangered species or population stocks can

and should be used;

(8) Whether the animal was born in

captivity or was (or will be) taken from

the wild;

(9) Provision for disposition of the

species if and when the applicant’s

project or program terminates;

(10) How the applicant’s needs, program, and facilities compare and relate

to proposed and ongoing projects and

programs;

(11) Whether the expertise, facilities,

or other resources available to the applicant appear adequate to successfully

accomplish the objectives stated in the

application;

(12) Opinions or views of scientists or

other persons or organizations knowledgeable of the species which is the

subject of the application or of other

matters germane to the application;

and

(d) Permits applied for under this

section shall contain terms and conditions as the Director may deem appropriate, including:

(1) The number and kind of species

which are covered;

(2) The location and manner of taking;

(3) Port of entry or export;

(4) The methods of transportation,

care and maintenance to be used with

live species;

(5) Any requirements for reports or

rights of inspections with respect to

any activities carried out pursuant to

the permit;

(6) The transferability or assignability of the permit;

(7) The sale or other disposition of

the species, its progeny or the species

product;

(8) A reasonable fee covering the

costs of issuance of such permit, including reasonable inspections and an

appropriate apportionment of overhead

and administrative expenses of the Department of Commerce. All such fees

will be deposited in the Treasury to the

credit of the appropriation which is

current and chargeable for the cost of

furnishing the service.

[39 FR 41375, Nov. 27, 1974]

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 222.23, see the List of CFR

Sections Affected in the Finding Aids section of this volume.

§ 222.24 Procedures for issuance of

permits.

(a) Whenever application for a permit

is received by the Director which the

Director deems sufficient, he shall, as

soon as practicable, publish a notice

thereof in the FEDERAL REGISTER. Information received by the Director as a

part of the application shall be available to the public as a matter of public

record at every stage of the proceeding.

An interested party may within 30 days

after the date of publication of such

notice, submit to the Director his written data, views, or arguments with respect to the taking, importation, or

other action proposed in the application and may request a hearing in connection with the action to be taken

thereon.

(b) If a request for a hearing is made

within the 30–day period referred to in

paragraph (a) of this section, or if the

Director determines that a hearing

would otherwise be advisable, the Director may, within 60 days after the

date of publication of the notice referred to in paragraph (a) of this section, afford to such requesting party or

parties an opportunity for a hearing.

Such hearing shall also be open to participation by any interested members

of the public. Notice of the date, time,

and place of such hearing shall be published in the FEDERAL REGISTER not

less than 15 days in advance of such

hearing. Any interested person may appear in person or through representatives at the hearing and may submit

any relevant material, data, views,

comments, arguments, or exhibits. A

summary record of the hearing shall be

kept.

(c) Except as provided in subpart D of

15 CFR part 904, as soon as practicable

but not later than 30 days after the

close of the hearing (or if no hearing is

held, as soon as practicable after the

end of the 30 days succeeding publication of the notice referred to in paragraph (a) of this section) the Director
95

National Marine Fisheries Service/NOAA, Commerce § 222.31

shall issue or deny issuance of the permit. Notice of the decision of the Director shall be published in the FEDERAL REGISTER within 10 days after the

date of the issuance or denial and indicate where copies of the permit, if

issued, may be obtained.

(d) If a permit is issued, the Director

shall publish notice thereof in the FEDERAL REGISTER, including his finding

that (1) such permit was applied for in

good faith, (2) if granted and exercised

will not operate to the disadvantage of

such endangered species, and (3) will be

consistent with the purposes and policy

set forth in section 2 of the Endangered

Species Act of 1973. The requirements

of this paragraph pertain solely to the

permits issued under §222.23.

(e) The Director may waive the thirty-day period in an emergency situation where the health or life of an endangered animal is threatened and no

reasonable alternative is available to

the applicant, but notice of any such

waiver shall be published by the Director in the FEDERAL REGISTER within

ten days following the issuance of the

certificate of exemption or permit.

[39 FR 41375, Nov. 27, 1974, as amended at 42

FR 28139, June 2, 1977; 49 FR 1042, Jan. 6, 1984;

55 FR 20607, May 18, 1990]

§ 222.25 Applications for modification

of permit by permittee.

Where circumstances have changed

so that an applicant or permittee

desires to have any term or condition

of his application or permit modified,

he must submit in writing full justification and supporting information

in conformance with the provisions of

this part and the part under which the

permit has been issued or requested.

Such applications for modification are

subject to the same issuance criteria as

are original applications, as provided

in §§222.22(c) and 222.23(c).

[39 FR 41375, Nov. 27, 1974, as amended at 55

FR 20607, May 18, 1990]

§ 222.26 Amendment of permits by

NMFS.

All permits are issued subject to the

condition that the National Marine

Fisheries Service reserves the right to

amend the provisions of a permit for

just cause at any time during its term.

Such amendments take effect on the

date of notification, unless otherwise

specified.

[39 FR 41375, Nov. 27, 1974]

§ 222.27 Procedures for suspension,

revocation, or modification of permits.

Any violation of the applicable provisions of parts 217 through 222 of this

chapter, or of the Act, or of a condition

of the permit may subject the certificate holder to the following:

(a) The penalties provided in the Act;

and

(b) Suspension, revocation, or modification of the permit, as provided in

subpart D of 15 CFR part 904.

[49 FR 1043, Jan. 6, 1984, as amended at 55 FR

20607, May 18, 1990]

§ 222.28 Possession of permits.

(a) Any permit issued under these

regulations must be in the possession

of the person to whom it is issued (or

an agent of such person) during:

(1) The time of the authorized taking,

importation, exportation, or other act;

(2) The period of any transit of such

person or agent which is incident to

such taking, importation, exportation,

or other act; and

(3) Any other time while any animal

under such permit is in the possession

of such person or agent.

(b) A duplicate copy of the issued permit must be physically attached to the

tank, container, package, enclosure, or

other means of containment, in which

the animal is placed for purposes of

storage, transit, supervision, or care.

[39 FR 41375, Nov. 27, 1974]

Subpart D—Special Prohibitions

§ 222.31 Approaching humpback

whales in Hawaii.

Except as provided in subpart C (Endangered Fish or Wildlife Permits) of

this part it is unlawful for any person

subject to the jurisdiction of the

United States to commit, to attempt

to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of the

Islands of Hawaii, any of the following

acts with respect to humpback whales

(Megaptera novaeangliae):
96

§ 222.32 50 CFR Ch. II (10–1–98 Edition)

(a) Operate any aircraft within 1,000

ft (300 m) of any humpback whale; or

(b) Approach by any means, within

100 yd (90 m) of any humpback whale;

or

(c) Cause a vessel or other object to

approach within 100 yd (90 m) of a

humpback whale; or

(d) Disrupt the normal behavior or

prior activity of a whale by any other

act or omission. A disruption of normal

behavior may be manifested by, among

other actions on the part of the whale,

a rapid change in direction or speed; escape tactics such as prolonged diving,

underwater course changes, underwater

exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a

whale to shield a calf from a vessel or

human observer by tail swishing or by

other protective movement; or the

abandonment of a previously frequented area.

[60 FR 3775, Jan. 19, 1995]

§ 222.32 Approaching North Atlantic

right whales.

(a) Prohibitions. Except as provided

under paragraph (c) of this section, it

is unlawful for any person subject to

the jurisdiction of the United States to

commit, attempt to commit, to solicit

another to commit, or cause to be committed any of the following acts:

(1) Approach (including by interception) within 500 yards (460 m) of a right

whale by vessel, aircraft, or any other

means;

(2) Fail to undertake required right

whale avoidance measures specified

under paragraph (b) of this section.

(b) Right whale avoidance measures.

Except as provided under paragraph (c)

of this section, the following avoidance

measures must be taken if within 500

yards (460 m) of a right whale:

(1) If underway, a vessel must steer a

course away from the right whale and

immediately leave the area at a slow

safe speed;

(2) An aircraft must take a course

away from the right whale and immediately leave the area at a constant

airspeed.

(c) Exceptions. The following exceptions apply to this section, but any

person who claims the applicability of

an exception has the burden of proving

that the exception is applicable:

(1) Paragraphs (a) and (b) of this section do not apply if a right whale approach is authorized by NMFS through

a permit issued under subpart C (Endangered Fish or Wildlife Permits) of

this part or through a similar authorization.

(2) Paragraphs (a) and (b) of this section do not apply where compliance

would create an imminent and serious

threat to a person, vessel, or aircraft.

(3) Paragraphs (a) and (b) of this section do not apply when approaching to

investigate a right whale entanglement

or injury, or to assist in the

disentanglement or rescue of a right

whale, provided that permission is received from NMFS or a NMFS designee

prior to the approach.

(4) Paragraphs (a) and (b) of this section do not apply to an aircraft unless

the aircraft is conducting whale watch

activities or is being operated for that

purpose.

(5) Paragraph (b) of this section does

not apply to the extent that a vessel is

restricted in her ability to maneuver,

and because of the restriction, cannot

comply with paragraph (b) of this section.

[62 FR 6738, Feb. 13, 1997]

§ 222.33 Special prohibitions relating

to endangered Steller sea lion protection.

General. The regulatory provisions

set forth in part 227, which govern

threatened Steller sea lions, shall also

apply to the western population of

Steller sea lions, which consists of all

Steller sea lions from breeding colonies

located west of 144 °W. long.

[62 FR 24355, May 5, 1997]

Subpart E—Incidental Capture of

Endangered Sea Turtles

§ 222.41 Policy regarding incidental

capture of sea turtles.

Shrimp fishermen in the southeastern United States and the Gulf of Mexico who comply with rules for threatened sea turtles specified in § 227.72(e)

of this subchapter will not be subject
97

National Marine Fisheries Service/NOAA, Commerce § 225.3

to civil penalties under the Act for incidental captures of endangered sea

turtles by shrimp trawl gear.

[52 FR 24251, June 29, 1987]

§ 222.42 Special prohibitions relating

to leatherback sea turtles.

Special prohibitions relating to

leatherback sea turtles are provided at

§ 227.72(e)(2)(iv) of this chapter.

[60 FR 25623, May 12, 1995]

PART 225—FEDERAL/STATE COOPERATION IN THE CONSERVATION OF ENDANGERED AND

THREATENED SPECIES

Sec.

225.1 Purpose of regulations.

225.2 Scope of regulations.

225.3 Definitions.

225.4 Cooperation with the States.

225.5 Cooperative agreement.

225.6 Allocation of funds.

225.7 Financial assistance.

225.8 Availability of funds.

225.9 Payments.

225.10 Assurances.

225.11 Submission of documents.

225.12 Project evaluation.

225.13 Contracts.

225.14 Inspection.

AUTHORITY: Endangered Species Act of

1973, 87 Stat. 884, 16 U.S.C. 1531–1543, Pub. L.

93–205.

SOURCE: 41 FR 24354, June 16, 1976, unless

otherwise noted.

§ 225.1 Purpose of regulations.

The regulations in this part implement section 6 of the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C.

1531 through 1543, Pub. L. 93–205 which

provides, under certain circumstances,

for cooperative agreements with and financial assistance to the States.

§ 225.2 Scope of regulations.

This part applies to endangered and

threatened species under the jurisdiction of the Department of Commerce

(see 50 CFR 222.23(a)).

§ 225.3 Definitions.

In addition to the definitions contained in the Act, and unless the context otherwise requires, in this part

225:

(a) Act means the Endangered Species

Act of 1973, 87 Stat. 884, 16 U.S.C. 1531

through 1543, Pub. L. 93–205.

(b) Agreements mean signed documented statements of the actions to be

taken by the State(s) and the Director

in furthering certain purposes of the

Act. They include:

(1) A Cooperative Agreement entered

into pursuant to section 6(c) of the Act

and, where appropriate, containing provisions found in section 6(d)(2) of the

Act.

(2) A Grant-In-Aid Award which includes a statement of the actions to be

taken in connection with the conservation of endangered or threatened species receiving Federal financial assistance, objectives and costs of such actions, and costs to be borne by the Federal Government and by the State(s).

(c) Application for Federal Assistance

means a description of work to be accomplished, including objectives and

needs, expected results and benefits,

approach, cost, location and time required for completion.

(d) Director means the Director of the

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, or his authorized designee.

(e) Program means a State-developed

plan for the conservation and management of all resident species which are

deemed by the Secretary to be endangered or threatened and those which

are deemed by the State to be endangered or threatened, which includes

goals, priorities, strategies, actions,

and funding necessary to accomplish

the objectives on an individual species

basis.

(f) Project means a substantial undertaking to conserve the various endangered or threatened species.

(g) Project segment means an essential

part or a division of a project, usually

separated as a period of time, occasionally as a unit of work.

(h) Resident species means, for purposes of these regulations, with respect

to a State, a species which exists in the

wild in that State during any part of

its life.

(i) Secretary means the Secretary of

Commerce or his authorized designee.