[Federal Register: December 10, 2004 (Volume 69, Number 237)]
[Rules and Regulations]
[Page 71723-71731]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de04-16]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT64
Endangered Species Act Incidental Take Permit Revocation
Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule describes circumstances in which the U.S. Fish and
Wildlife Service may revoke incidental take permits issued under
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended.
On December 11, 2003, the U.S. District Court for the District of
Columbia in Spirit of the Sage Council v. Norton, Civil Action No. 98-
1873 (D. D.C.), invalidated 50 CFR 17.22(b)(8) and 17.32(b)(8), the
regulations addressing Service authority to revoke incidental take
permits under certain circumstances. The court ruled that we had
adopted those regulations without adequately complying with the public
notice and comment procedures required by the Administrative Procedure
Act (APA) and remanded the regulations to us for further proceedings
consistent with the APA. On May 25, 2004, we published in the Federal
Register a final rule withdrawing the permit revocation regulations
vacated by the court's order (69 FR 29669). On that same date we
requested public comment on our proposal to reestablish the permit
revocation regulations (69 FR 29681).
DATES: This rule is effective January 10, 2005.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Division of
Consultation, Habitat Conservation Planning, Recovery and State Grants,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420,
Arlington, VA 22203.
FOR FURTHER INFORMATION CONTACT: Rick Sayers, Chief, Branch of
Consultation and Habitat Conservation Planning, at the above address
(Telephone 703/358-2106, Facsimile 703/358-1735).
SUPPLEMENTARY INFORMATION: This notice of rulemaking applies to the
U.S. Fish and Wildlife Service only. Therefore, the use of the terms
``Service'' and ``we'' in this notice refers exclusively to the U.S.
Fish and Wildlife Service.
This rule applies only to 50 CFR 17.22(b) and 17.32(b), which
pertain to incidental take permits. Regulations in 50 CFR 17.22(c) and
17.32(c), which pertain to Safe Harbor Agreements (SHAs), and in 50 CFR
17.22(d) and 17.32(d), which pertain to Candidate Conservation
Agreements with Assurances (CCAAs), are not affected by this rule.
Background
Promulgation of the ``Permit Revocation Rule''
The Service administers a variety of conservation laws that
authorize the issuance of permits for otherwise prohibited activities.
In 1974, we published 50 CFR part 13 to consolidate the administration
of various permitting programs. Part 13 established a uniform framework
of general administrative conditions and procedures that would govern
the application, processing, and issuance of all Service permits. We
intended the general part 13 permitting provisions to be in addition
to, and not in lieu of, other more specific permitting requirements of
Federal wildlife laws.
We subsequently added many wildlife regulatory programs to title 50
of the CFR. For example, we added part 18 in 1974 to implement the
Marine Mammal Protection Act; modified and expanded part 17 in 1975 to
implement the Endangered Species Act (ESA) of 1973, as amended (16
U.S.C. 1531 et seq.); and added part 23 in 1977 to implement the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES). The regulations in these parts contain their own
specific permitting requirements that supplement the general permitting
provisions of part 13.
With respect to the ESA, the combination of the general permitting
[[Page 71724]]
provisions in part 13 and the specific permitting provisions in part 17
has worked well in most instances. However, the Service has found that,
in some areas of permitting policy under the Act, the ``one size fits
all'' approach of part 13 has been inappropriately constraining and
narrow. Incidental take permitting under section 10(a)(1)(B) of the ESA
is one such area.
On June 12, 1997 (62 FR 32189), we published proposed revisions to
our general permitting regulations in 50 CFR part 13 to identify, among
other things, the situations in which the permit provisions in part 13
would not apply to individual incidental take permits. On June 17, 1999
(64 FR 32706), we published a final set of regulations that included
two provisions that relate to revocation of incidental take permits.
The first provides that the general revocation standard in 50 CFR
13.28(a)(5) will not apply to several types of ESA permits, including
incidental take permits. The second provision, hereafter referred to as
the Permit Revocation Rule, described circumstances under which
incidental take permits could be revoked.
The Permit Revocation Rule, which was codified at 50 CFR
17.22(b)(8) (endangered species) and 17.32(b)(8) (threatened species),
clarified that an incidental take permit ``may not be revoked . . .
unless continuation of the permitted activity would be inconsistent
with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the
inconsistency has not been remedied in a timely fashion.'' The
criterion in section 10(a)(2)(B)(iv) of the ESA (16 U.S.C.
1539(a)(2)(B)(iv)) that ``the taking will not appreciably reduce the
likelihood of the survival and recovery of the species in the wild'' is
one of the statutory criteria that incidental take permit applicants
must meet in order to obtain a permit. The criterion is substantially
identical to the definition of ``jeopardize the continued existence
of'' in the joint Department of the Interior/Department of Commerce
regulations implementing section 7 of the ESA (50 CFR 402.02).
On February 11, 2000 (65 FR 6916), we published a request for
additional public comment on several specific regulatory changes
included in the June 17, 1999, final rule (64 FR 32706), including the
Permit Revocation Rule. Based on our review of the comments we received
in response to the February 11, 2000, request for comments, we
published a notice on January 22, 2001 (66 FR 6483), that affirmed the
provisions of the June 17, 1999 (64 FR 32706), final rule, including
the Permit Revocation Rule.
The ``No Surprises'' Rule Litigation and the Order To Vacate the Permit
Revocation Rule
On February 23, 1998 (63 FR 8859), the Service and the National
Marine Fisheries Service, which also issues ESA incidental take
permits, jointly promulgated the No Surprises Rule. The No Surprises
Rule provides certainty to holders of incidental take permits by
placing limits on the agencies' ability to require additional
mitigation after an incidental take permit has been issued. The No
Surprises Rule is codified by the Service at 50 CFR 17.22(b)(5)
(endangered species) and 17.32(b)(5) (threatened species) and by the
National Marine Fisheries Service at 50 CFR 222.307(g). For both
agencies, the No Surprises Rule was added to pre-existing regulations
pertaining to incidental take permits.
In July 1998, a group of environmental plaintiffs challenged the No
Surprises Rule in Spirit of the Sage Council v. Norton, Civil Action
No. 98-1873 (D. D.C.). The Service promulgated the Permit Revocation
Rule on June 17, 1999 (64 FR 32706). The plaintiffs subsequently
amended their complaint to challenge the Permit Revocation Rule. The
government explained in its briefs that the ESA itself authorizes the
Service to revoke incidental take permits, and that the Rule simply
confirmed that the Service would employ its statutory authority if the
need arose.
On December 11, 2003, the court ruled that the Service had violated
the public notice and comment procedures of the APA when promulgating
the Permit Revocation Rule. The court did not rule on the substantive
validity of the Permit Revocation Rule. The court vacated and remanded
the Permit Revocation Rule to the Service for further consideration
consistent with section 553 of the APA. The court did not rule on the
validity of the No Surprises Rule, but found that the Permit Revocation
Rule is relevant to the court's review of the No Surprises Rule. The
court, therefore, ordered the Service to consider the No Surprises Rule
together with the Permit Revocation Rule in any new rulemaking
proceedings concerning revocation of incidental take permits containing
No Surprises assurances. On May 25, 2004, we published in the Federal
Register a final rule (69 FR 29669) withdrawing the permit revocation
regulations vacated by the court's order. On that date, we also
published a proposal to issue new permit revocation regulations (69 FR
29681). On June 10, 2004, the court further ordered the Service to
complete the rulemaking on the new revocation rule no later than
December 10, 2004, and to refrain from approving new incidental take
permits or related documents containing ``No Surprises'' assurances
until we have completed all proceedings remanded by the court's
December 11, 2003, order.
The government complied with the court's orders with this
rulemaking action. The Service published a notice in the Federal
Register on May 25, 2004, requesting public comment on proposed new
permit revocation regulations (69 FR 29681). We requested comments on
the proposed rule and its interrelationship with the No Surprises Rule
(63 FR 8859). With this rule, we establish revocation regulations for
incidental take permits at 50 CFR 17.22(b)(8) and 17.32(b)(8). In
addition, the National Marine Fisheries Service has determined that the
court's orders require no further action by the National Marine
Fisheries Service.
Summary of Previously Received Comments
As stated in the proposed rule, we previously received comments on
the Permit Revocation Rule in response to our Federal Register notice
of February 11, 2000 (65 FR 6916). We addressed these comments in our
affirmation of the final rule published in the Federal Register on
January 22, 2001 (66 FR 6483). Because we received some of the same or
similar comments in response to our request for public comment on our
proposal of this rule, our response to comments below encompasses both
the current and previous comments regarding incidental take permit
revocation.
Summary of Comments Received
On May 25, 2004, we proposed to reestablish the Permit Revocation
Rule as originally promulgated on June 17, 1999 (64 FR 32706). In our
request for public comment on the proposed regulations, we specifically
invited public comment on the following issues:
1. The proposal to reestablish the Permit Revocation Rule. This
rule would allow the Service to revoke an incidental take permit as a
last resort in the unexpected and unlikely situation in which
continuation of the permitted activities would likely jeopardize the
continued existence of the species covered by the permit and the
Service is not able to remedy the situation through other means in a
timely fashion.
2. The interrelationship of the Permit Revocation Rule and the No
Surprises Rule, including whether the revocation standard in the Permit
Revocation Rule is appropriate in light of the regulatory
[[Page 71725]]
assurances contained in the No Surprises Rule.
3. Whether the revocation standard in 50 CFR 13.28(a)(5) or some
other revocation standard would be more appropriate for incidental take
permits with No Surprises assurances.
The comment period closed on July 26, 2004. We received
approximately 250 comments on our proposed rule from a variety of
entities, including the National Marine Fisheries Service, two States,
one Tribe, several county and other local agencies, conservation
groups, industry and trade associations, and private individuals. Among
the comments were several that questioned the Service's compliance with
the APA and one that described difficulty understanding the proposal.
We address these two issues under General Issues below. The remainder
of the comments raised specific issues that are summarized below and
discussed in detail, along with the Service's responses, under Specific
Issues below.
Because most of the comments we received covered similar issues and
many of them were form letters, we grouped the comments according to
issues. The comments ranged widely, but generally fell into three
categories: (1) the permit revocation regulations are appropriate as
proposed; (2) the permit revocation regulations inappropriately limit
when the Service can revoke incidental take permits; and (3) the permit
revocation regulations are overly protective of listed resources and
undermine the regulatory certainty provided by the No Surprises Rule.
In addition to comments on the proposed regulations and the
interrelationship of the proposed regulations and the No Surprises
Rule, we also received numerous comments on the No Surprises Rule,
habitat conservation planning, and specific Habitat Conservation Plans
that are beyond the narrow scope of this particular rulemaking on the
permit revocation regulations. While these comments are beyond the
scope of this particular rulemaking and are not addressed here, we will
retain this information for consideration in any future revisions of
guidance, policy, or rules governing Habitat Conservation Planning and
No Surprises assurances.
Most commenters who responded during this comment period supported
the permit revocation regulations as proposed. Many of these commenters
stated they thought it appropriate for the permit revocation standard
to be the same as for permit issuance (i.e., based on the criterion in
section 10(a)(2)(B)(iv) of the ESA (16 U.S.C. 1539(a)(2)(B)(iv)) that
``the taking will not appreciably reduce the likelihood of the survival
and recovery of the species in the wild''). Many stated the proposed
regulations allow for meaningful implementation of the No Surprises
Rule in the context of Habitat Conservation Plans and associated
incidental take permits. Many of these commenters stated that applying
the general permit revocation standard at 50 CFR 13.28(a)(5) is
inappropriate in the context of the No Surprises Rule and undercuts the
very notion of regulatory certainty by expanding the conditions under
which permits may be revoked. Additionally, some of these commenters
stated they found it appropriate for the Service to step in with
additional funding, lands, or other resources in the event a species
was jeopardized as a result of any ``unforeseen circumstance.'' These
commenters did not view such a situation as burdensome for the Service
or taxpayers, citing a number of potential funding sources and other
opportunities.
Numerous commenters expressed concern that the permit revocation
regulations inappropriately limit when permits may be revoked (i.e.,
the regulations are not adequately protective of listed resources).
Some of these commenters recommended revision of: (1) The No Surprises
Rule; (2) the proposed permit revocation regulations; (3) the general
permitting regulations at 50 CFR 13; or (4) some combination of these
regulations. Some of these commenters objected to ``boilerplate''
language included in incidental take permits that provided the same No
Surprises assurances to all permittees. Some of these commenters were
concerned that the Service would be unable to revoke a permit if the
permittee was unwilling to make monitoring, management, or other
changes under an adaptive management plan or was otherwise out of
compliance with the permit. These commenters: (1) Questioned why the
old provision at 50 CFR 13.28(a)(5) should be replaced with a standard
they viewed as less protective; (2) requested the word ``shall'' rather
than ``may'' be used to indicate that revocation is not discretionary;
(3) questioned why the Service should have to step in at public expense
to remedy jeopardy situations before a permit can be revoked; (4)
questioned what the standard ``in a timely fashion'' means or requested
this term be further defined; (5) suggested that the revocation
provision should also contain a reference to adverse modification of
critical habitat; and (6) recommended that the word ``jeopardy'' be
used instead of ``appreciable reduction in the likelihood of survival
and recovery'' because the commenter viewed ``jeopardy'' to be a higher
standard.
A few commenters stated the permit revocation regulations
undermined the No Surprises Rule (i.e., the regulations are overly
protective of listed resources). The commenters requested: (1) the
Service reaffirm that permit revocation should be ``an action of last
resort;'' and (2) the Service limit permit revocation to instances
where the permittee is not in compliance with the permit (i.e., no
permit revocation even if a species would be jeopardized by the
continuation of activities covered under the permit as long as the plan
is being properly implemented).
The vast majority of commenters, regardless of the three categories
into which they fell, expressed the view that the No Surprises Rule and
concomitant permit revocation regulations are effective incentives that
are responsible for the large increase in the number of non-federal
landowners who have chosen to participate in the Habitat Conservation
Planning program.
General Issues
Issue: We received several comments on the public notice process in
which the commenters viewed the Service's decision to repropose the
same regulations that were vacated by the court as a violation of APA
procedural requirements. These commenters felt the Service should have
proposed permit revocation regulations that differed from those
promulgated in the June 17, 1999, final rule (64 FR 32706) and the
January 22, 2001, affirmation of the final rule (66 FR 6483). A few
commenters thought the proposed rule ``deprived the public of
meaningful notice,'' lacked sufficient explanation of the specific
issues on which we were soliciting comments, and ``cannot be
interpreted to fairly apprise interested persons of the subjects and
the issues.'' Some of these commenters thought the Service should have
provided more explanation of the differences between the proposed rule
and the revocation standard in the general permitting regulations
(i.e., 50 CFR 13.28(a)(5)).
Response: We considered the revocation standard at 50 CFR
13.28(a)(5), but thought this standard was not appropriate given the
plain language of section 10(a)(2)(B)(iv) of the ESA (16 U.S.C.
1539(a)(2)(B)(iv)). We reviewed the No Surprises assurances provided at
50 CFR 17.22(b)(5) and 17.32(b)(5) and came to the conclusion that the
proposed rule appropriately describes the point at which permit
[[Page 71726]]
revocation should occur for a properly implemented HCP. Therefore, we
reproposed the same regulations that were vacated, explaining our
reasoning and soliciting public comment. In its comments, the National
Marine Fisheries Service agreed that the revocation standard contained
in the proposed rule was appropriate. Our intent to clarify the
relevant standards for revocation of incidental take permits was well
described in the proposed rule, and the record of events that led to
this rulemaking was well chronicled. In our proposal we specifically
invited the public to comment on the appropriateness of the proposed
standard and if they thought the revocation standards at 50 CFR
13.28(a)(5) or some other standard was more appropriate. Through this
rulemaking process we have complied with the procedural requirements
and the intent of the APA.
Issue: One commenter found it difficult to understand the proposed
rule and ``found the publication in the Federal Register to be totally
inadequate for even an ``informed citizen'' to understand the intent of
the proposal or the historical precedents which required this rules
process.''
Response: The historical events that led to this rulemaking were
well described in the proposal. Our intent was to clarify relevant
standards for revocation of incidental take permits and solicit public
comment on the appropriateness of the proposed standard. Based on the
number of significant comments we received, the content of the proposal
adequately described the historical precedents and the intent of the
proposal.
Specific Issues
In this section we address specific issues relevant to the permit
revocation regulations and the interrelationship of the permit
revocation regulations and the No Surprises Rule that were raised by
commenters.
Issue: Several commenters viewed the proposed revocation
regulations coupled with No Surprises assurances as an inadequate
standard to protect species. To remedy the perceived inadequacy, some
of these commenters provided recommendations for revisions of the No
Surprises Rule, the regulations governing incidental take permit
revocation, or both. Suggested revisions generally included
conditioning permits to allow for periodic evaluation in effectiveness,
modifying the plan to incorporate new scientific information or changed
conditions, and requiring performance bonds to ensure accountability. A
couple of commenters requested that the Addendum to the HCP Handbook,
the so-called Five Point Policy (65 FR 35242), be promulgated as a
regulation. Some of these commenters objected to ``boilerplate''
language included in incidental take permits that they thought provided
the same level of No Surprises assurances to all permittees. They
viewed this approach as inadequate to achieve regulatory assurances
commensurate with the level of scientific rigor underlying the HCP, the
level of uncertainty regarding the conservation of the species, and the
duration of the associated incidental take permit. A couple of
commenters thought there should be flexibility in the level of
assurances provided and that the Service should negotiate the level of
assurances and the conditions for permit revocation on a case-by-case
basis.
Response: We address these comments together, because the concerns
raised are related to several aspects of permit issuance and
revocation. In order to provide a clear response to this suite of
issues, we begin by summarizing the permit process, specifically permit
issuance criteria and the No Surprises Rule. In order for an applicant
to receive an incidental take permit with No Surprises assurances, the
Service must receive commitments from the applicant. The specific
commitments vary widely and are unique to each plan, but generally the
applicant must submit a Habitat Conservation Plan (HCP) that, among
other things, includes measures to minimize and mitigate impacts and
ensures adequate funding to implement the proposed plan. The HCP must
support findings that the amount of incidental take of species covered
by the plan and included on the incidental take permit will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild. In addition to these findings and other issuance
criteria in section 10(a)(2)(B) of the ESA that must be met, an
applicant must demonstrate that (1) the species are adequately covered
by the plan, (2) the plan has included provisions for changed
circumstances and unforeseen circumstances, and (3) the applicant has
ensured funding for changed circumstances. Changed circumstances are
changes affecting a species or geographic area covered by an HCP that
can reasonably be anticipated and planned for by plan developers and
the Service. Unforeseen circumstances are changes affecting a species
or geographic area covered by a conservation plan that could not
reasonably have been anticipated by plan developers and the Service at
the time of the conservation plan's negotiation and development, and
that result in a substantial and adverse change in the status of the
covered species.
Most commenters' concerns and suggested revisions to the No
Surprises Rule or the permit revocation rule are already addressed in
guidance developed jointly by the Service and the National Marine
Fisheries Service in the form of an addendum to the HCP Handbook
published on June 1, 2000, known as the ``Five Point Policy'' (65 FR
35242). The Five Point Policy provides clarifying guidance for the
Service's and the National Marine Fisheries Service's administration of
the incidental take permit program and for those applying for an
incidental take permit. The Five Point Policy is considered agency
policy, and the Service is fully committed to its implementation.
As described in the Five Point Policy, an HCP applicant must
identify biological goals and objectives of the plan and must develop
an operating conservation program (i.e., conservation management
activities expressly agreed upon and described in the HCP and
implemented as part of the plan) to achieve these goals and objectives.
As part of the operating conservation program, the applicant must
develop a management plan with an appropriate level of flexibility,
such as an adaptive management plan, and a monitoring program to assess
the effectiveness of the management plan and other conservation
measures being implemented under the operating conservation program. If
all issuance criteria have been met, the duration of the permit is then
determined by considering a number of factors, including the period of
time over which the permittee's activities will occur, the reliability
of information underlying the HCP, the length of time necessary to
implement and achieve the benefits of the operating conservation
program, the extent to which the program incorporates adaptive
management strategies, and the level of biological uncertainty
associated with the plan. In general, a long permit duration is likely
to require a comprehensive adaptive management plan and minimal
biological uncertainty.
The Five Point Policy also extends the minimum public comment
period for most HCPs based on the complexity of the proposed plans.
This increased public comment period assists the Service and the
applicant in gathering information that may have been missed during the
development of the HCP.
[[Page 71727]]
Through this process, an applicant, with assistance from the
Service, develops an HCP that includes periodic review, modification to
the plan to accommodate new scientific information, and funding that is
assured through a variety of means, including performance bonds, all of
which are mutually agreed upon in the operating conservation program
developed to implement the plan. Rather than negotiate a different set
of assurances and a different set of revocation criteria for each
incidental take permit, the Service chose a threshold approach, where
the applicant only receives No Surprises assurances for species that
are adequately covered by the HCP. Determinations as to whether a
species is adequately covered by a plan are made on a case by case
basis, a process in which the Service considers the scientific rigor
underlying the particular plan and any uncertainty associated with the
plan and its operating conservation program as described above, and
then ensures that appropriate monitoring, reporting, modification, and
funding measures are included, and determines the appropriate duration
of the permit and what type and amount of take, if any, can be
authorized for each species.
Once a permit is issued, the permittee must properly implement the
plan (i.e., fully implement all commitments and provisions agreed to in
the HCP, associated Implementing Agreement (if any), and incidental
take permit) to receive No Surprises assurances and the assurance that
permit revocation would be an ``action of last resort.'' This approach,
which includes planning for change and contingencies, but uses one
revocation standard for all, leads to greater consistency in our
implementation of the Habitat Conservation Planning program while
taking into account the unique circumstances associated with each plan.
Issue: One State and numerous other commenters expressed concern
regarding the Service's ability to revoke a permit under the proposed
permit revocation regulations if a permit holder is not in compliance
with their permit and under what timeframe this action would occur.
Response: Nothing in the permit revocation regulations, including
the provisions in 50 CFR 17.22(b)(8) and 17.32(b)(8) precludes the
Service from suspending and, if necessary, revoking an incidental take
permit if the permittee fails to comply with any of the terms and
conditions of the incidental take permit. First, section 10(a)(2)(C) of
the ESA provides that the Service ``shall revoke'' an incidental take
permit if the Service ``finds that the permittee is not complying with
the terms and conditions of the permit.'' Moreover, Sec. Sec.
17.22(b)(8) and 17.32(b)(8) of the regulations state that the
revocation provisions in 50 CFR 13.28(a)(1)-(4) apply to incidental
take permits. Under these regulations, if a permittee is not properly
implementing the HCP (for example, if the permittee is not adhering to
the agreed-upon adaptive management program and monitoring regime or is
not funding the operating conservation program as agreed), then the
Service can suspend the permit (50 CFR 13.27(a)). And if the permittee
fails within 60 days to correct deficiencies that were the cause of a
permit suspension, then the Service can revoke the permit under 50 CFR
13.28(a)(2).
Issue: A few commenters were concerned that the Service would be
unable to take any action if a permittee is in compliance with the
plan, but the plan is not working as expected (i.e., a substantial and
adverse change in the status of a covered species has occurred) and the
permittee is unwilling to modify the plan (i.e., make monitoring,
management, or other changes to the operating conservation program).
Response: The No Surprises Rule places limits on the Service's
ability to require additional measures to respond to changes in
circumstances after an incidental take permit is issued. It does not,
however, affect the Service's revocation authority under the ESA. So
long as the permittee is complying with the terms and conditions of the
plan, the No Surprises Rule allows the Service to require additional
conservation and mitigation measures of the permittee to respond to
unforeseen circumstances; however, such measures must be limited to
modifications of the conservation plan's operating conservation program
that do not involve the commitment of additional land, water, or
financial compensation or restrictions on the use of land, water, or
other natural resources otherwise available for development or use
under the HCP. The No Surprises Rule thus provides latitude to make
changes to the plan as long as no additional cost (i.e., land, water,
funding, or other resources) is required of the permittee. However, the
Service's revocation authority under the ESA allows the Service to
revoke an incidental take permit even if the permittee is in compliance
with the terms and conditions of the permit, if the permitted activity
would appreciably reduce the likelihood of the survival and recovery of
the species in the wild. This permit revocation rule does not create or
change this authority, but describes the circumstances under which the
Service would exercise it.
Issue: Some commenters did not see why the old provision in 50 CFR
13.28(a)(5) should be replaced with a standard they viewed as less
protective. They viewed the proposed incidental take permit revocation
standard and the general permitting standard at Sec. 13.28(a)(5) as
significantly different. Some of these commenters viewed the general
permitting revocation standard that allows the Service to revoke an
incidental take permit when the ``population(s) of the wildlife or
plant that is the subject of the permit declines to the extent that
continuation of the permitted activity would be detrimental to
maintenance or recovery of the affected population,'' as the
appropriate standard. A couple of these commenters thought the Service
should be able to revoke incidental take permits if they are found to
impair a species' long-term recovery, not just their short-term
survival. A couple of commenters requested the word ``shall'' rather
than ``may'' be used in the rule to indicate that revocation is not
discretionary.
Response: We think that the standard for revocation of a permit
should be the same as the standard for issuing the permit. In its
comments, the National Marine Fisheries Service agreed that this
standard for revocation was appropriate. When Congress amended the ESA
in 1982 to create the HCP permit program, it clearly indicated that the
relevant focus would be at the species level. Section 13.28(a)(5)
predates the 1982 amendments and focuses only on the wildlife
population in the permitted area. We therefore believe that it is
appropriate to replace Sec. 13.28(a)(5) with a provision that more
accurately reflects the congressional intent behind the 1982
amendments. The timeframes ``short-term'' and ``long-term'' referred to
by the commenter in reference to survival and recovery of species are
not applicable here and are not a condition imposed on the Service for
permit revocation. Under the new revocation provision, a permit may be
revoked if effects to a population of a species affected by the
permitted activity are determined to appreciably reduce the likelihood
of survival and recovery of the species in the wild regardless of the
time period over which this decline in the species' status is expected
to take. In the unlikely event that an activity covered by a properly
implemented incidental take permit is found likely to appreciably
reduce the likelihood of the survival and recovery of any listed
species in the wild and the problem cannot be corrected through
[[Page 71728]]
the unforeseen circumstances procedure of 50 CFR 17.22(b)(5)(iii) or 50
CFR 17.32(b)(5)(iii) or the additional actions provisions of 50 CFR
17.22(b)(6) or 50 CFR 17.32(b)(6), the Service will, as a matter of
last resort, undertake the revocation procedures as described in 50 CFR
13.28(b) and 50 CFR 13.29.
The new revocation provision established in Sec. Sec. 17.22(b)(8)
and 17.32(b)(8) is written in a manner that indicates when revocation
is not permissible instead of when it is. As a result, the suggestion
that the word ``may'' be changed to ``shall'' is not practical. In
addition, decisions involving permit revocation are fact-intensive and
will require the exercise of discretion on the part of the agency. It
is therefore questionable whether permit revocation standards can be
described as being mandatory versus discretionary. We decline to
substitute ``shall'' for ``may'' in the rule as the regulations are
phrased to describe only those circumstances under which revocation is
permissible within the agency's discretion.
Issue: Several commenters recommended that the word ``jeopardy'' be
used instead of ``appreciable reduction in the likelihood of survival
and recovery'' because the commenters viewed ``jeopardy'' to be a
higher standard.
Response: The revocation standard in Sec. Sec. 17.22(b)(8) and
17.32(b)(8) is effectively the same as the jeopardy standard. As stated
in the background section of this publication, the criterion at section
10(a)(2)(B)(iv) of the ESA (16 U.S.C. 1539(a)(2)(B)(iv)) that the
taking will not ``appreciably reduce the likelihood of the survival and
recovery'' of the species in the wild is substantially identical to the
definition of ``jeopardize the continued existence of'' in the joint
Department of the Interior/Department of Commerce regulations
implementing section 7 of the ESA (50 CFR 402.02). The Service is
required to avoid jeopardizing the continued existence of any listed
species under section 7 of the ESA and would do so by revoking the
incidental take permit if other actions to avoid the jeopardy are not
available.
Issue: A couple of commenters suggested that the revocation
provision should also contain a reference to adverse modification of
critical habitat.
Response: We do not see the need to add a reference to adverse
modification of critical habitat. The statutory issuance criterion
embodied in the new revocation provision applies only to actions that
are likely to appreciably reduce the likelihood of the survival and
recovery of the species in the wild, and makes no reference to critical
habitat. We decline to expand the revocation provisions beyond the
scope of the statutory issuance criterion.
Issue: Both States and several other commenters recommended that
the phrase ``in a timely fashion'' be further defined or a timeframe be
added to the rule that would establish when the Service would take
revocation action.
Response: The phrase ``in a timely fashion'' was included in the
proposed revocation provision to indicate that the Service would not
move to revoke an incidental take permit the instant a concern about
the effect of an activity on the species' likelihood of survival and
recovery is identified, but only if subsequent efforts to remedy the
situation were not successful. Because each HCP is case-specific, it is
not possible to define what remedying in ``a timely fashion'' will mean
in all instances. Whether a response can be deemed timely or not will
depend on highly fact-specific issues, including the species involved
and the source of the problem. However, like other such subjective
terms that appear in laws and regulations, ``in a timely fashion'' is
intended to be a reasonable period of time to allow for a good faith
effort on the part of the Service and other interested parties to
remedy the situation for the specific case at hand. In most cases we
assume ``in a timely fashion'' would likely be a few days to a few
months depending on the species involved and the source of the problem,
but a shorter or longer period of time may be appropriate in some
situations. Because we cannot define a more precise timeframe, we have
decided to delete the phrase ``in a timely fashion'' from the final
rule.
This change in the rule will have no effect on the actual period of
time it would take the Service to remedy such a situation or to come to
the conclusion that we cannot remedy the situation and need to revoke
the permit. The timeframe needed to make this determination is a
function of the No Surprises procedures to determine if unforeseen
circumstances exist (see 50 CFR 17.22(b)(5)(iii) and 50 CFR
17.32(b)(5)(iii)). We review that process here to clarify this issue.
The Service has the burden of demonstrating that unforeseen
circumstances exist using the best scientific and commercial data
available. These findings must be clearly documented and based upon
reliable technical information regarding the status and habitat
requirements of the affected species. The Service will consider, but
not be limited to, the following factors: (1) Size of the current range
of the affected species; (2) percentage of range adversely affected by
the conservation plan; (3) percentage of range conserved by the
conservation plan; (4) ecological significance of that portion of the
range affected by the conservation plan; (5) level of knowledge about
the affected species and the degree of specificity of the species'
conservation program under the conservation plan; and (6) whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected species
in the wild.
If unforeseen circumstances are found to exist, the Service will
consider changes in the operating conservation program or additional
mitigation measures. However, measures required of the permittee must
be as close as possible to the terms of the original HCP. Any
adjustments or modifications will not include requirements for
additional land, water, or financial compensation, or additional
restrictions on the use of land, water, or other natural resources
otherwise available for development or use under the HCP, unless the
permittee consents to such additional measures or such measures are
provided by some other interested party. The Service will work with the
permittee to increase the effectiveness of the HCP's operating
conservation program to address the unforeseen circumstances without
requiring the permittee to provide an additional commitment of
resources. If the Service determines additional mitigation on behalf of
the species is needed, the Service may request, but cannot require, the
permittee to voluntarily undertake such measures. The Service has a
wide array of authorities and resources that can be used to provide
additional protection for the species. The Service will also work with
other appropriate entities to find a remedy. However, if it is
determined that the continuation of the permitted activity would
appreciably reduce the likelihood of survival and recovery for one or
more species in the wild and no remedy can be found and implemented,
the Service will move to revoke the permit in accordance with the
administrative procedures of 50 CFR 13.28(b) and 13.29.
Issue: One commenter stated the terms ``remedied'' and
``inconsistency'' in the proposed rule are ambiguous and should be
clarified. More specifically, the commenter requested we explain the
process associated with the ``remedy'' and the public's role when the
Service is pursuing ``remedies?''
Response: The term ``remedied'' is case specific. As described in
the response to the previous issue, through
[[Page 71729]]
the process of determining if unforeseen circumstances exist, the
Service will identify a remedy, if any exists, specific to the
situation. The term ``inconsistent'' means ``not in accordance with.''
As used in the regulations it means that continuation of activities
covered by the HCP will appreciably reduce the likelihood of the
survival and recovery for one or more species in the wild. Pursuit of a
remedy is not a public process; however, the Service will work with any
appropriate entities, including members of the public, to identify a
remedy.
Issue: The commenting Tribe recommended amending the proposed
regulations to include language conditioning permit revocation such
that a permit issued to an ``Indian Tribe,'' as defined in Secretarial
Order No. 3206, cannot be revoked unless the Department first
determines that such inconsistency cannot be remedied through (1) the
reasonable regulation of non-Indian activities, (2) revocation is the
least restrictive alternative available to remedy the inconsistency,
(3) revocation of the permit does not discriminate against Indian
activities, either as stated or applied; and (4) voluntary tribal
measures are not adequate to remedy the inconsistency.
Response: In accordance with the Secretarial Order 3206, ``American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the
Department of the Interior's Manual at 512 DM 2, we understand that we
must relate to recognized Federal Indian Tribes on a Government-to
Government basis. However, the permit revocation regulations pertain to
voluntary agreements, Habitat Conservation Plans, in which Tribes and
individuals are not required to participate unless they volunteer to do
so. Therefore, these regulations may have effects on Tribal resources
and Native American Tribes, but solely at their discretion, should
those Tribes or individuals choose to participate in the voluntary
program. We view the permit revocation regulations, as proposed, along
with the No Surprises Rule and our responsibilities under Secretarial
Order 3206 and other policies, to provide adequate assurances to allow
Tribes to enter into these voluntary agreements without including the
suggested revisions.
Issue: Several commenters questioned why the Service should have to
step in at public expense to remedy jeopardy situations before a permit
can be revoked. One commenter stated that the Service is ``ill-equipped
to take on the responsibility of implementing mitigation measures when
unforeseen circumstances arise.''
Response: In the February 23, 1998, ``No Surprises'' final rule, we
provided the rationale for committing the agency to step in and attempt
to remedy jeopardy situations in cases where the permittee is in full
compliance with the permit and has a properly implemented conservation
plan in place. In exchange for assurances, the HCP permittee has agreed
to undertake extensive planning and to include contingencies and
assurances for additional funding for such contingencies, to address
changed circumstances. This requirement does not exist in other Federal
permitting programs. We believe it is fair, therefore, to commit the
agency to step in and address unforeseen circumstances. The Service
believes that it will be rare for unforeseen circumstances to result in
a violation of an incidental take permit's issuance criteria. However,
in such cases, the Service will use all of our authorities, will work
with other Federal agencies and other appropriate entities to rectify
the situation, and work with the permittee to redirect conservation and
mitigation measures to remedy the situation. The Service has a wide
array of authorities and resources that can be used to provide
additional protection for threatened or endangered species covered by
an HCP. Among those authorities and resources are a variety of grants
administered by the Service, cooperative agreements with States,
section 5 land acquisition authority, section 7(a)(1) interagency
cooperation, recovery implementation, and other programs. Nevertheless,
the new permit revocation rule recognizes that, if these efforts fail
and jeopardy to a listed species persists, then the Service, pursuant
to the ESA, may revoke the permit even if the permittee is fully
complying with the terms and conditions of the permit.
Issue: One State commenter recommended close coordination with
State fish and wildlife agencies during the mediation process to help
in the determination of jeopardy for the species, and during the
identification of potential alternatives to permit revocation.
Response: Under the Service's interagency cooperative policy
regarding the role of State agencies in Endangered Species Act
activities (59 FR 34275), it is the policy of the Service to utilize
the expertise and solicit information and participation of State
agencies in all aspects of the Habitat Conservation Planning process.
In the event of unforeseen circumstances, the Service will work with
the permittee, the State, and any other appropriate entities to
increase the effectiveness of the HCP's operating conservation program
to address unforeseen circumstances without requiring the permittee to
produce an additional commitment of resources as stated above and to
identify alternatives to permit revocation. Under 50 CFR 17.22(b)(6)
and 17.32(b)(6), the Service is not limited or constrained--nor is any
other Federal, State, local, or tribal government agency, or a private
entity constrained--from taking additional actions at its own expense
to protect or conserve a species included in a conservation plan.
Issue: A few commenters stated that the permit revocation
regulations undermine the No Surprises Rule. A couple of these
commenters thought the Service should limit permit revocation to
instances where the permittee is not in compliance with the permit. One
commenter questioned the Service's authority to revoke a permit, citing
section 10(a)(2)(C) of the ESA, which states, ``the Secretary shall
revoke a permit issued under this paragraph if he finds that the
permittee is not complying with the terms and conditions of the
permit.'' This commenter viewed this revocation standard as negating
the existence of any general authority to revoke incidental take
permits on other conditions (i.e., 50 CFR 13.28(a)(1) through (4)).
Furthermore, this commenter did not think the Service could revoke a
permit under the authority of section 7 of the ESA (16 U.S.C. section
1536(7)(a)(2)) to avoid jeopardy once an incidental take permit had
been issued.
Response: Because this permit revocation rule codifies and
clarifies the statutory permit revocation standard, it does not affect
the No Surprises Rule. The Service's general permitting regulations in
50 CFR part 13 predate the 1982 amendments to the ESA that added the
incidental take permit provisions to the ESA. By their terms, these
regulations apply to all ESA permits, including incidental take permits
(see 50 CFR 13.3). The Service has always considered incidental take
permits to be subject to the general 50 CFR part 13 regulations and
includes as a standard condition in all incidental take permits that
they are subject to 50 CFR part 13. Nothing in section 10(a)(2)(C)
indicates otherwise. It states that the Service shall revoke a permit
if the permittee fails to comply with the
[[Page 71730]]
terms and conditions of the permit, but it does not indicate that this
is the sole permissible basis for revocation. Moreover, the legislative
history of the 1982 ESA amendments shows that the language was included
simply to emphasize that an incidental take permit, like any other
section 10 permit, should be revoked if the permittee fails to comply
with its terms and conditions.
Furthermore, the Service's act of issuing an incidental take permit
under section 10(a)(1)(B) is a Federal action, subject to the section
7(a)(2) duty to insure that the action is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. Congress emphasized the importance of this duty in the
incidental take permit context by expressly including an issuance
criterion that mirrors the regulatory definition established for
jeopardizing the continued existence of a listed species in the wild.
If, at any time, carrying out such an action (i.e., implementing an
HCP) is found likely to appreciably reduce the likelihood of the
survival and recovery for one or more species in the wild, the Service
can no longer authorize such action and must amend or revoke the
permit. Under the No Surprises Rule, if the Service finds that
unforeseen circumstances exist and additional conservation measures are
needed to avoid appreciably reducing the likelihood of survival and
recovery of a listed species in the wild, the Service must remedy the
situation at its own expense or in cooperation with the permittee or
other appropriate entities. If no remedy can be found or implemented,
the Service, as a last resort, will revoke the permit.
Issue: Many commenters requested the Service reaffirm that permit
revocation should be ``an action of last resort.''
Response: As we stated in our notice of February 11, 2000 (65 FR
6916), and in our final rule of January 22, 2001 (66 FR 6483), ``the
Service is firmly committed, as required by the ``No Surprises'' final
rule, to utilizing its resources to address any such unforeseen
circumstances,'' and we view the revocation provision ``as a last
resort in the narrow and unlikely situation in which an unforeseen
circumstance results in likely jeopardy to a species covered by the
permit and the Service has not been successful in remedying the
situation through other means.'' We continue to adhere to this position
and view permit revocation under the terms of this rule as an unlikely
action of last resort.
Revisions to the Proposed Rule
In Sec. Sec. 17.22(b)(8) and 17.32(b)(8) we deleted the phrase
``in a timely fashion'' from the regulations. Because each HCP is
unique, the situation associated with a finding of unforeseen
circumstances and a determination that continued activity under the
permit would appreciably reduce the likelihood of survival and recovery
of a species covered by the permit is case-specific; therefore, it is
not possible to define what remedying a situation in ``a timely
fashion'' will mean in all instances. Because we cannot define a
precise timeframe in which we would remedy such a situation or revoke
an incidental take permit, we have deleted this phrase from the final
rule. However, the procedures in Sec. Sec. 17.22(b)(5)(iii) and
17.32(b)(5)(iii) for determining if unforeseen circumstances exist
describe the administrative steps that must be followed.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal or policy issues, and
was reviewed by the Office of Management and Budget (OMB) in accordance
with the four criteria discussed below.
(a) This rule will not have an annual economic effect of $100
million or more or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government.
(b) This rule is not expected to create inconsistencies with other
agencies' actions. These regulations would amend potentially
conflicting permitting regulations established for a voluntary program,
Habitat Conservation Planning, for non-Federal property owners and
would not create inconsistencies with the actions of non-Federal
agencies.
(c) This regulation is not expected to significantly affect
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients.
(d) OMB has determined that this rule may raise novel legal or
policy issues and, as a result, this rule has undergone OMB review.
This rule is a direct response to a previous legal challenge.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions),
unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The
Regulatory Flexibility Act requires Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities.
Pursuant to the Regulatory Flexibility Act, we certified to the
Small Business Administration that these regulations would not have a
significant economic impact on a substantial number of small entities.
The proposed changes clarify the circumstances under which an
incidental take permit issued under the authority of section
10(a)(1)(B) of the Endangered Species Act might be subject to
revocation. As of September 27, 2004, the Service has approved 470
Habitat Conservation Plans (HCPs) and issued 737 incidental take
permits associated with these HCPs, and none have required revocation.
As identified in the preamble and the response to comments, the
specific circumstances under which the proposed regulations would
provide for revocation are expected to be extraordinarily rare.
Small Business Regulatory Enforcement Fairness Act
This regulation will not be a major rule under 5 U.S.C. 801 et
seq., the Small Business Regulatory Enforcement Fairness Act.
(a) This regulation would not produce an annual economic effect of
$100 million.
(b) This regulation would not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions.
(c) This regulation would not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Although this rule is a significant action under Executive Order 12866,
it is not expected to significantly affect energy supplies,
distribution, or use. Therefore,
[[Page 71731]]
this action is not a significant energy action and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) The Service has determined and certifies pursuant to the
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. No additional
information will be required from a non-Federal entity solely as a
result of this rule. These regulations implement a voluntary program;
no incremental costs are being imposed on non-Federal landowners.
(b) These regulations will not produce a Federal mandate of $100
million or greater in any year; that is, this rule is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
Takings
In accordance with Executive Order 12630, these regulations do not
have significant takings implications concerning taking of private
property by the Federal Government. These regulations pertain to a
voluntary program that does not require individuals to participate
unless they volunteer to do so. Therefore, these regulations have no
impact on personal property rights.
Federalism
These regulations will not have substantial direct effects on the
States, in the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among
various levels of government. Therefore, in accordance with Executive
Order 13132, the Service has determined that this rule does not have
sufficient federalism implications to warrant a Federalism Assessment.
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior has determined that this rule does not unduly burden the
judicial system and meets the applicable standards provided in sections
3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This rule would not impose any new requirements for collection of
information associated with incidental take permits other than those
already approved for incidental take permits under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. We may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB Control Number.
National Environmental Policy Act
The Department of the Interior has determined that the issuance of
this rule is categorically excluded under the Department's NEPA
procedures in 516 DM 2, Appendix 1.10.
Government-to-Government Relationship With Indian Tribes
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the
Department of the Interior's Manual at 512 DM 2, we understand that we
must relate to recognized Federal Indian Tribes on a Government-to
Government basis. However, these regulations pertain to voluntary
agreements, Habitat Conservation Plans, in which Tribes and individuals
are not required to participate unless they volunteer to do so.
Therefore, these regulations may have effects on Tribal resources and
Native American Tribes, but solely at their discretion, should those
Tribes or individuals choose to participate in the voluntary program.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Final Regulation Promulgation
0
For the reasons set out in the preamble, the Service amends Title 50,
Chapter I, subchapter B of the Code of Federal Regulations, as set
forth below.
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.22 by adding a new paragraph (b)(8) to read as
follows:
Sec. 17.22 Permits for scientific purposes, enhancement of
propagation or survival, or for incidental taking.
* * * * *
(b) * * *
(8) Criteria for revocation. A permit issued under paragraph (b) of
this section may not be revoked for any reason except those set forth
in Sec. 13.28(a)(1) through (4) of this subchapter or unless
continuation of the permitted activity would be inconsistent with the
criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the
inconsistency has not been remedied.
* * * * *
0
3. Amend Sec. 17.32 by adding a new paragraph (b)(8) to read as
follows:
Sec. 17.32 Permits--general.
* * * * *
(b) * * *
(8) Criteria for revocation. A permit issued under paragraph (b) of
this section may not be revoked for any reason except those set forth
in Sec. 13.28(a)(1) through (4) of this subchapter or unless
continuation of the permitted activity would be inconsistent with the
criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the
inconsistency has not been remedied.
* * * * *
Dated: November 23, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-27202 Filed 12-9-04; 8:45 am]
BILLING CODE 4310-55-P