Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2023-0018; FXES1113090FEDR-245-FF09E23000]</DEPDOC> <RIN>RIN 1018-BF88</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (Service), revise our regulations concerning protections of endangered species and threatened species under the Endangered Species Act (Act or ESA). We reinstate the general application of the “blanket rule” option for protecting newly listed threatened species pursuant to section 4(d) of the Act, with the continued option to promulgate species-specific section 4(d) rules. We also extend to federally recognized Tribes the exceptions to prohibitions for threatened species that the regulations currently provide to the employees or agents of the Service and other Federal and State agencies to aid, salvage, or dispose of threatened species. We also make minor changes to clarify or correct the existing regulations for endangered species and threatened species; these minor changes do not alter the substance or scope of the regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective May 6, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Public comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2023-0018. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carey Galst, Branch of Listing and Policy Support, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-1954. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The purposes of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 <E T="03">et seq.</E> (the Act)), are to provide a means to conserve the ecosystems upon which listed species depend, develop a program for the conservation of listed species, and achieve the purposes of certain treaties and conventions. Moreover, it is the policy of Congress that the Federal Government will seek to conserve endangered species and threatened species and use its authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)). This rulemaking action pertains primarily to sections 4 and 9 of the Act. Section 9 of the Act provides a specific list of prohibitions for endangered species but does not provide these same prohibitions to threatened species. Instead, the first sentence in section 4(d) of the Act requires that the Secretary issue regulations that are necessary and advisable to provide for the conservation of threatened species; these are referred to as “4(d) rules.” In addition, the second sentence of section 4(d) authorizes the Secretary to prohibit with respect to any threatened species any act prohibited under section 9 with respect to endangered species. With these two sentences in section 4(d), Congress delegated the authority to the Secretary to determine what protections would be necessary and advisable to provide for the conservation of threatened species, and even broader authority to put in place any of the section 9 prohibitions, for a given species. Early in the administration of the Act, the Service promulgated “blanket rules,” two sets of protective regulations that generally applied to threatened species of wildlife and plants, at 50 CFR 17.31 and 17.71, respectively. These regulations extended the majority of the protections (all of the prohibitions that apply to endangered species under section 9 with certain exceptions to those prohibitions) to threatened species, unless we issued an alternative rule under section 4(d) of the Act for a particular species ( <E T="03">i.e.,</E> a species-specific 4(d) rule). For species with a species-specific 4(d) rule, that rule contains all of the protective regulations for that species. On August 27, 2019, we issued a final rule that revised 50 CFR 17.31 and 17.71 (84 FR 44753; hereinafter, “the 2019 4(d) rule”) and ended the “blanket rule” option for application of section 9 prohibitions to species newly listed as threatened after the effective date of those regulatory revisions (September 26, 2019). The “blanket rule” protections continued to apply to threatened species that were listed prior to September 26, 2019, without an associated species-specific 4(d) rule. Under the 2019 4(d) rule, the only way to apply protections to a species newly listed as a threatened species is for us to issue a species-specific 4(d) rule setting out the protective regulations that are appropriate for that species. On January 20, 2021, the President issued Executive Order 13990 (86 FR 7037, January 25, 2021; hereinafter referred to as “the E.O.”), which required all agencies to review agency actions issued between January 20, 2017, and January 20, 2021, to determine consistency with the purposes articulated in section 1 of the E.O. Pursuant to the direction in the E.O., we reviewed our 2019 4(d) rule to assess whether to keep it in place or to revise any aspects. Our review included evaluating the benefits or drawbacks of the regulations as revised in the 2019 4(d) rule, the necessity of those regulations, their consistency with applicable case law, and other factors. Based on our evaluation, and for reasons discussed in more detail below, we revise our regulations at 50 CFR 17.31 and 17.71 to reinstate the “blanket rules” that apply the section 9 prohibitions to newly listed threatened species, and we also update other provisions in 50 CFR part 17. The updated prohibitions and exceptions differ from the previous “blanket rules” in two substantive ways. First, federally recognized Tribes are now included as entities authorized to aid, salvage, or dispose of threatened species without a permit. Second, as a result of updating our endangered plant regulations at 50 CFR 17.61(c)(1) to match amendments to the Act that Congress enacted in 1988, threatened plants protected under the previous “blanket rule” are now protected from being maliciously damaged or destroyed on areas under Federal jurisdiction, or being removed, cut, dug up, or damaged or destroyed on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. With these regulation revisions, we are not required to reevaluate any previously finalized species-specific 4(d) rules. However, any threatened species with a species-specific 4(d) rule that refers to 50 CFR 17.31(b) or 17.71(b) now has the updated prohibitions and exceptions. In addition, any threatened species of wildlife or plant protected with the previous “blanket rules” has the updated prohibitions and exceptions as outlined under 50 CFR 17.31(a) or 17.71(a), respectively, for any future actions after the effective date of this rule (see <E T="02">DATES</E> , above). The Secretaries of the Interior and Commerce share responsibilities for implementing most of the provisions of the Act. Generally, marine species and some anadromous (sea-run) species are under the jurisdiction of the Secretary of Commerce, and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the U.S. Fish and Wildlife Service (“the Service”) and by the Secretary of Commerce to the Assistant Administrator for the National Marine Fisheries Service (NMFS). The Service and NMFS (jointly “the Services”) each have separate regulations for implementation of section 4(d) protective regulations for species within their respective jurisdictions. As was the case when we amended our section 4(d) regulations in 2019, the amendments in this rule affect only species under Service jurisdiction. The 2019 4(d) rule, along with other revisions to the Act's regulations finalized in 2019 (revisions to 50 CFR parts 402 and 424), were subject to litigation in the United States District Court for the Northern District of California. On July 5, 2022, the court issued a decision vacating the 2019 4(d) rule without reaching the merits of the case. On September 21, 2022, the United States Court of Appeals for the Ninth Circuit temporarily stayed the effect of the July 5th decision pending the District Court's resolution of motions seeking to alter or amend that decision. On October 14, 2022, the Services notified the District Court that we anticipated proceeding with a rulemaking process to revise the 2019 4(d) rule. Subsequently, on November 16, 2022, the District Court issued orders granting the Service's motion to remand the 2019 4(d) rule to the Service without vacating it. On June 22, 2023, we published in the <E T="04">Federal Register</E> (88 FR 40742) a proposed rule to amend the regulations to reinstate the “blanket rule” for newly listed threatened species, to extend certain exceptions to federally recognized Tribes, and to make minor clarifications and corrections. We accepted public comments on the June 22, 2023, proposed rule for 60 days, ending August 21, 2023. With this rule, the Service is finalizing these amendments to our regulations a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 172k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━