Endangered and Threatened Species: Regulations for Species Treated as Listed Due to Similarity of Appearance

Endangered and Threatened Wildlife and Plants; Regulations for Eleven Species Treated as Listed Due to Similarity of Appearance

SUPPLEMENTARY INFORMATION:

Information Requested

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) Threats and conservation actions affecting the species listed under section 4(a) of the Act and whether the similarity of appearance regulations under section 4(e) concerning treatment of the unlisted 4(e) species addressed in this proposed rulemaking are needed to address these threats and conservation actions in accordance with section 4(e).

(2) Information to assist us with applying or issuing regulations under section 4(e) of the Act concerning treatment of the following species addressed in this proposed rulemaking (Alabama map turtle, Barbour's map turtle, Escambia map turtle, Pascagoula map turtle, southern DPS of bog turtle, and Sonoran DPS of desert tortoise). In particular, we seek information concerning:

(a) The extent to which we should include any of the Act's section 9(a) prohibitions in the 4(e) regulations; and

(b) Whether we should consider any additional or different exceptions from the prohibitions in the 4(e) regulations.

(3) Potential impacts on the Miami blue butterfly, Florida panther, and pallid sturgeon from proposed removal of 4(e) treatment for the cassius blue butterfly, ceraunus blue butterfly, nickerbean blue butterfly, puma, and shovelnose sturgeon.

(4) Potential impacts on regulated entities from the proposed rulemaking.

(5) Potential impacts on the Pearl River map turtle, bog turtle (northern DPS), and Desert tortoise (Mojave DPS) from proposed amendment of 4(e) treatment for the Alabama map turtle, Barbour's map turtle, Escambia map turtle, Pascagoula map turtle, bog turtle (southern DPS), and desert tortoise (Sonoran population).

Please include any supplemental information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Determinations will be made in accordance with the criteria in section 4(e) of the Act.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission-including any personal identifying information-will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov .

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov .

Our final determination may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. Based on the new information we receive (and, if relevant, any comments on that new information), we may conclude with respect to each unlisted 4(e) species addressed in this proposed rulemaking that we should keep treating the species as listed under section 4(e) of the Act or no longer treat the species as listed under section 4(e) of the Act. In addition, we may change the prohibitions or the exceptions to those prohibitions in the regulations issued or applied under section 4(e) of the Act if we conclude it is appropriate in light of comments and new information received. In our final rule, we will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

Background

Section 4 of the Endangered Species Act of 1973, as amended ("Act" or "ESA"; 16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations (CFR) set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species.

The Act defines an "endangered species" at 16 U.S.C. 1532(6) as a species that is in danger of extinction throughout all or a significant portion of its range and a "threatened species" at 16 U.S.C. 1532(20) as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors in section 4(a):

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

Section 2 of the Act states that the purposes of the Act include providing a means to conserve the ecosystems upon which endangered and threatened species depend, developing a program for the conservation of listed species, and achieving the purposes of certain treaties and conventions (16 U.S.C. 1531(b)). The ultimate goal of conservation efforts is the recovery of listed species, so that they no longer need the protective measures of the Act. The Act provides multiple tools to conserve species that warrant protection under section 4(a) and have been added to the List of Endangered and Threatened Wildlife (50 CFR 17.11) or the List of Endangered and Threatened Plants (50 CFR 17.12). These include (among other protections) designation of critical habitat, recovery planning under section 4(f), protective regulations for threatened species under section 4(d), and Federal agency requirements to ensure their actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat under section 7(a)(2).

One of these tools, detailed in section 4(e) of the Act, provides the Service with the discretion to treat species as endangered species or threatened species when they do not meet the definition of an endangered species or threatened species (16 U.S.C. 1532(6), (20)) as a result of the factors listed in section 4(a). This authority to treat species as endangered or threatened when they are similar in appearance to ( i.e., resemble) a species that is listed under section 4(a) is limited to situations when treating the species as endangered or threatened under section 4(e) will "substantially facilitate enforcement" of the Act for the benefit of, and reduce threats to, the species listed under section 4(a). The Act's tools and protections for endangered and threatened species are directed at the species that meet the definitions of endangered species or threatened species under section 4(a), not the species that are treated as endangered or threatened under section 4(e) solely because of a similarity in appearance.

Section 4(e) of the Act provides that the Secretary may, by regulation of commerce or taking, and to the extent he deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to section 4 of the Act if the Secretary finds that: (A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to the Act that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of the Act (16 U.S.C. 1533(e)). The Act provides the Service discretion in determining both when and how to apply section 4(e).

Executive Order (E.O.) 14154, "Unleashing American Energy," issued January 20, 2025, directed all departments and agencies to immediately review agency actions that potentially impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with this national objective (90 FR 8353). In addition, E.O. 14192, "Unleashing Prosperity Through Deregulation," issued January 31, 2025, is intended to significantly reduce the private expenditures required to comply with Federal regulations to secure America's economic prosperity and national security and the highest possible quality of life for each citizen (90 FR 9065). As E.O. 14192 noted, it is important that for each new regulation issued, at least 10 prior regulations be identified for elimination. This practice is to ensure that the cost of planned regulations is responsibly managed and controlled through a rigorous regulatory budgeting process. It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources, and to alleviate unnecessary regulatory burdens placed on the American people. This proposed rule is intended to reduce or remove regulatory burdens.

The Service has finalized regulations that treat 17 entities as listed species under section 4(e) of the Act. These entities are listed as E (S/A) (endangered based on similarity of appearance to an existing listed species) or T (S/A) (threatened based on similarity of appearance to an existing listed species) at 50 CFR 17.11. After reviewing these regulations, we propose to remove or revise this treatment for 11 species.

Proposed Regulatory Revisions

We propose to remove treatment as listed species for the following five unlisted species: cassius blue butterfly, ceraunus blue butterfly, nickerbean blue butterfly, puma, and shovelnose sturgeon. We also propose to revise regulations under section 4(e) of the Act for the following six unlisted species that are treated as listed species: Alabama map turtle, Barbour's map turtle, Escambia map turtle, Pascagoula map turtle, southern DPS of bog turtle, and Sonoran DPS of desert tortoise. See table 1, below, for a summary of the species and proposed actions discussed in this document.

Florida Panther and Puma

The Florida panther was first listed as an endangered species under the precursor to the Act, the Endangered Species Preservation Act of October 15, 1966 (16 U.S.C. 668aa(c); 32 FR 4001, March 11, 1967) and has continued to be protected as an endangered species under the Act. Because unlisted species of cougars (or pumas) periodically occur in Florida, either as escapees from captivity or as deliberate releases or wild individuals from populations outside of Florida, there is a risk that Florida panthers will be killed under the assumption or justification that they are escaped cougars or other wild big cats. Therefore, we finalized a rule on August 14, 1991 (56 FR 40265), treating all other free-living Felis concolor ( i.e., puma, mountain lion) in Florida (hereafter referred to as "puma" or "mountain lion") as a threatened species under section 4(e) of the Act due to similarity of appearance to the Florida panther. We also issued regulations at 50 CFR 17.40(h) providing the prohibitions and exception for activities with regard to the puma.

The regulations provide that except as otherwise allowed, no person shall take any free-living mountain lion ( Felis concolor ) in Florida. Exceptions allow for a mountain lion to be taken in this area under a valid threatened species permit issued pursuant to 50 CFR 17.52 or when an employee or designated agent of the Service or the Florida Game and Fresh Water Fish Commission takes a mountain lion for taxonomic identification or other reasons consistent with the conservation of the endangered Florida panther ( Felis concolor coryi ). When it has been established by the Service, in consultation with the State, that an animal in question is not a Florida panther or an eastern cougar ( Felis concolor couguar ), such animals may be removed from the wild. The disposition of animals so taken shall be at the discretion of the Florida Game and Fresh Water Fish Commission, with the concurrence of the Service. Take for reasons of human safety is allowed and must be reported in writing to the Service's Office of Law Enforcement. The specimen may only be retained, disposed of, or salvaged in accordance with directions from the Service.

According to our 2009 status review, habitat loss, fragmentation, degradation, and associated human disturbance are the greatest threats to panther survival and among the greatest threats to its recovery (Service 2009, p. 12).

We propose to remove section 4(e) similarity of appearance treatment for puma as a threatened species at 50 CFR 17.11 together with the corresponding 4(e) regulations at 50 CFR 17.40(h). The intention of the 4(e) regulations for puma are largely duplicative with other existing protections for the Florida panther and puma.

The Florida panther was first declared to be an endangered species by the Florida Game and Fresh Water Fish Commission (GFC), the predecessor agency of the current Florida Fish and Wildlife Conservation Commission (FWC), in 1958, at which time State protections were afforded to the species. FWC currently lists the Florida panther as a federally designated Endangered Species (68A-27.003, Florida Administrative Code). Federally designated Endangered and Threatened Species are defined by the State of Florida as "species of fish or wild animal life, subspecies or isolated populations of species or subspecies, whether vertebrate or invertebrate, that are native to Florida and classified as Endangered and Threatened under Commission rule by virtue of designation by the United States Departments of Interior or Commerce as endangered or threatened under the Federal Endangered Species Act, 16 U.S.C. 1532 et seq. and rules thereto[. . .]" (68A-27.001(2) Florida Administrative Code).

Florida's regulations provide that "no person shall take, possess, or sell any of the endangered or threatened species included in this subsection, or parts thereof or their nests or eggs except as allowed by specific federal permit or authorization" (68A-27.003(1)(a) Florida Administrative Code). Take is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct" (68A-27.003(4) Florida Administrative Code, Title XXVII, section 379.101). Florida statutes also provide that "it is unlawful for a person to kill a member of the Florida `endangered species,' as defined in s. 379.2291(3), known as the Florida panther ( Felis concolor coryi )" and that "it is unlawful for a person to kill any member of the species of panther ( Felis concolor ) occurring in the wild" (section 379.4115 Florida Statutes ). Any person convicted of violating these sections commits a Level Four violation under s. 379.401.

This proposal would not alter any protections relating to activities with the Florida panther under State or Federal law. Anyone under the jurisdiction of the United States that engages in prohibited activities with the Florida panther without a permit is subject to law enforcement.

We continue to find that the puma so closely resembles the Florida panther in appearance that enforcement personnel would have substantial difficulty in attempting to differentiate between the species. However, given the protections available in the State of Florida for both the Florida panther and puma, the effect of this substantial difficulty is not an additional threat to the Florida panther. Because the law regarding the killing of any panther does not cite to the protections currently afforded by section 4(e) of the Act, we anticipate these protections will continue after our proposed removal of such treatment. We appreciate and are seeking comments from the State of Florida on this proposal. We find that this continued treatment will not substantially facilitate the enforcement and the policy of the Act because of the current protections under State laws; therefore, treating the puma as a threatened species is no longer advisable in accordance with section 4(e) because one of the three statutory criteria is no longer met.

Miami Blue Butterfly and Cassius Blue Butterfly, Ceraunus Blue Butterfly, and Nickerbean Blue Butterfly

On April 6, 2012, the Service published a final rule (77 FR 20948) listing the Miami blue butterfly as an endangered species primarily due to habitat loss and fragmentation. In that final rule, we also made final determinations to treat the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly as threatened species due to similarity of appearance to the Miami blue butterfly and issued regulations at 50 CFR 17.47(a) providing the prohibitions and exceptions for the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly.

The regulations at 50 CFR 17.47(a) provide that: (1) The provisions of § 17.31(c) apply to cassius blue butterfly, ceraunus blue butterfly, nickerbean blue butterfly regardless of whether in the wild or in captivity, and also apply to the progeny of any such butterfly; (2) Any violation of State law will also be a violation of the Act; (3) Incidental take, that is, take that results from, but is not the purpose of, carrying out an otherwise lawful activity, will not apply to these species; and (4) Collection of these species is prohibited in coastal counties south of Interstate 4 and extending to the boundaries of the State of Florida at the endpoints of Interstate 4 at Tampa and Daytona Beach. Specifically, such activities are prohibited in the following counties: Brevard, Broward, Charlotte, Collier, De Soto, Hillsborough, Indian River, Lee, Manatee, Pinellas, Sarasota, St. Lucie, Martin, Miami-Dade, Monroe, Palm Beach, and Volusia.

We propose to remove section 4(e) similarity of appearance treatment for cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly as threatened species at 50 CFR 17.11 together with the corresponding 4(e) regulations at 50 CFR 17.47(a). According to our most recent status review, the threat of collection of Miami blue butterflies has likely been reduced, in part due to the remote locations of Miami blue butterfly and reduction in occupied areas (Service 2024, p. 5).

The Miami blue butterfly is listed as a federally designated endangered species under Florida law (68A-27.003, Florida Administrative Code). Under Florida law, no person shall take, possess, or sell endangered species, or parts thereof or their nests or eggs except as allowed by specific Federal or State permit or authorization. No person shall intentionally kill, attempt to kill or wound any species that is both designated in Rule 68A-27.003 of the Florida Administrative Code and designated in 50 CFR 17.11 as endangered. This proposal would not alter any protections under State or Federal law relating to activities with the Miami blue butterfly. Anyone under the jurisdiction of the United States that engages in prohibited activities with the Miami blue butterfly without a permit is subject to law enforcement.

Cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly are also listed due to similarity of appearance to Miami blue butterfly under Florida law (68A-27.003). Under Florida law, incidental take, that is, take that results from, but is not a purpose of, carrying out an otherwise lawful activity does not apply to cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly. Florida law also prohibits collection of the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly in the coastal counties south of Interstate 4 and extending to the boundaries of the State of Florida at endpoints of Interstate 4 at Tampa and Daytona Beach. Specifically, such activities are prohibited in the following counties: Brevard, Broward, Charlotte, Collier, De Soto, Hillsborough, Indian River, Lee, Manatee, Pinellas, Sarasota, St. Lucie, Martin, Miami-Dade, Monroe, Palm Beach, and Volusia.

We continue to find that the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly closely resemble in appearance the Miami blue butterfly in the wild. However, there are morphological features that can differentiate the species and enforcement personnel should not have substantial difficulty in attempting to differentiate between collected individuals of the species after conferring with species experts. In addition, the effect of this substantial difficulty is not an additional threat to the Miami blue butterfly as there are no records of ongoing collection of this species, likely due to rarity and remote locations. Finally, collection of cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly is prohibited by Florida law; however, we recognize that the law cites to the protections afforded under the Act and it is unclear what kind of protections may continue after our proposed removal of such treatment.

We appreciate and are seeking comments from the State of Florida on this proposal. We find that continuing this treatment will not substantially facilitate the enforcement and the policy of the Act. Therefore, treating the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly as threatened species is no longer advisable in accordance with section 4(e) because not all of the three statutory criteria are met.

Pallid Sturgeon and Shovelnose Sturgeon

On September 6, 1990, the Service listed the pallid sturgeon as an endangered species due to curtailment of range, habitat destruction and modification, low population size, lack of recruitment, commercial harvest, pollution and contaminants, and hybridization (55 FR 36641). Another sturgeon species, the shovelnose sturgeon, can be difficult to differentiate from the pallid sturgeon in the wild.

At the time the pallid sturgeon was listed, within areas of overlap in the Missouri and Mississippi River basins, Illinois, Kentucky, Missouri, and Tennessee, commercial harvest of shovelnose sturgeon was allowed. In a 2007 status review, we found that State fishing regulations had helped reduce commercial harvest of pallid sturgeon, but that incidental and illegal take during commercial harvest of shovelnose sturgeon was still having a substantial and detrimental effect on the pallid sturgeon (Service 2007, pp. 45-48). Subsequently, on September 1, 2010, we finalized a rule under section 4(e) of the Act (75 FR 53598) treating the shovelnose sturgeon as a threatened species due to its similarity of appearance to the pallid sturgeon to reduce the threat of harvest of pallid sturgeon.

To prevent misidentification with pallid sturgeon where their ranges overlap with shovelnose sturgeon, regulations at 50 CFR 17.44(aa) establish certain prohibitions and exceptions for activities with regard to the shovelnose sturgeon, shovelnose-pallid sturgeon hybrids, or their roe, and provides that the Service has the authority to permit otherwise prohibited actions under 50 CFR 17.32.

We propose to remove treatment for the shovelnose sturgeon as a threatened species at 50 CFR 17.11 together with the corresponding 4(e) regulations at 50 CFR 17.44(aa). According to our most recent status review, all threats identified at the time of listing, including overutilization and overharvest ( e.g., due to similarity of appearance to the shovelnose sturgeon), remain a concern (Service 2021, p. 4). However, the regulations regarding commercial harvest of pallid sturgeon, and the potential for misidentification of pallid sturgeon as shovelnose sturgeon, are largely duplicative with several State laws.

For example, in Illinois, shovelnose sturgeon may not be commercially harvested except in the Mississippi River upstream of the Mel Price Lock and Dam in Alton, Illinois (excluding the area from lock and dam 19 to the State Highway 9 bridge in Niota), the Ohio River, and the Wabash River. Shovelnose sturgeon may only be commercially harvested from October 1 through May 31 from the Mississippi and Wabash River and from October 15 through May 15 from the Ohio River. A commercial roe harvest permit is required to commercially harvest shovelnose sturgeon from any body of water. Illinois also has size limits for shovelnose sturgeon from certain rivers ( https://www.ifishillinois.org/programs/commercialfish.html ). In Missouri, due to the 4(e) regulations of shovelnose sturgeon, the harvest of the flesh or roe of shovelnose sturgeon and shovelnose-pallid sturgeon hybrids by commercial fishing methods is prohibited in the entire Missouri River and in the Mississippi River below Melvin Price Locks and Dam near Alton, Illinois ( https://mdc.mo.gov/fishing/regulations/commercial-shovelnose-fishing-restricted ).

We recognize that many State laws are based upon the 4(e) similarity of appearance listing and it is unclear what kind of protections may continue after our proposed removal of such treatment. We appreciate and are seeking comments from affected States on this proposal. This proposal would not alter any protections under section 9(a)(1) of the Act for the pallid sturgeon. Anyone under the jurisdiction of the United States that engages in prohibited activities with the pallid sturgeon without a permit is subject to law enforcement.

We continue to find that the shovelnose sturgeon and shovelnose-pallid sturgeon hybrids, or their roe, closely resemble in appearance the pallid sturgeon in the wild. However, given the genetic differentiation of the species, enforcement personnel should not have substantial difficulty in attempting to differentiate between collected individuals, though distinction between roe of the species may continue to prove substantially difficult. While the effect of this substantial difficulty is an additional threat to the pallid sturgeon, we find that this treatment will not substantially facilitate the enforcement and the policy of the Act. Therefore, treating the shovelnose sturgeon as a threatened species is no longer advisable in accordance with section 4(e) because not all of the three statutory criteria are met.

Bog Turtle (Northern DPS) and Bog Turtle (Southern DPS)

On November 4, 1997, the Service published a final rule (62 FR 59605) listing the northern DPS of the bog turtle as a threatened species due to a variety of factors including habitat degradation and fragmentation from agriculture and development, habitat succession due to invasive exotic and native plants, and illegal trade and collecting. We determined that collection was a significant factor in the species decline and a threat to its continued existence in the wild. Difficulty in differentiating morphology and identifying source populations of individuals poses a problem for Federal and State law enforcement agents working to stop illegal trade in the northern population. Therefore, in that final rule, we also made final determinations to treat the southern DPS of the bog turtle as a threatened species and issued regulations at 50 CFR 17.42(f) outlining the prohibitions and exceptions for the southern DPS.

The treatment of the southern population as a threatened species due to similarity of appearance was intended to eliminate the ability of commercial collectors to commingle northern bog turtles with southern ones or to misrepresent them as southern bog turtles for commercial purposes (62 FR 59605 at 59622, November 4, 1997). According to our most recent status review, collection and trade of bog turtles is a continued threat with an investigation as recently as August 2018, and we are aware of continued interest in illegally obtaining bog turtles (Service 2022, p. 11).

The regulations at 50 CFR 17.42(f) establish certain prohibitions and exceptions for activities with regard to the southern DPS of bog turtle. Specifically, the regulations include all of the section 9(a)(1) prohibitions with regard to the southern DPS. Incidental take, that is, take that results from, but is not the purpose of, carrying out an otherwise lawful activity, does not apply to the southern DPS. The regulations also provide several exceptions to these prohibitions. For example, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship the southern DPS taken in violation of the Act as necessary in performing their official duties; certain individuals can take individuals to aid, salvage, or dispose of the southern DPS; States, the Service, and National Marine Fisheries Service (NMFS) can take individuals when carrying out conservation programs; and the Service has the authority to permit otherwise prohibited actions under 50 CFR 17.32.

We propose to amend the treatment of the southern DPS of bog turtle as a threatened species by revising the regulations at 50 CFR 17.42(f)(2) to authorize activities that are otherwise prohibited under a similarity of appearance permit (50 CFR 17.52) instead of a permit at 50 CFR 17.32. The regulations at 50 CFR 17.52 pertain to permits for similarity of appearance cases and outline application requirements, issuance criteria, permit conditions, and duration of permits. The regulations at 50 CFR 17.32 pertain to permits for threatened species ( i.e., those listed as threatened under section 4(a) of the Act).

Issuance criteria for permits for similarity of appearance species at 50 CFR 17.52 are minimal compared to those for species listed under section 4(a) and are as follows: (1) Whether the information submitted by the applicant appears reliable, and (2) whether the information submitted by the applicant adequately identifies the wildlife or plant in question so as to distinguish it from any endangered or threatened wildlife or plant. The 50 CFR 17.52 criteria for obtaining permits are focused on whether the applicant has provided reliable evidence that the specimen subject to the otherwise prohibited activity is from an unlisted similarity of appearance species under section 4(e) or is from a listed species under section 4(a).

The issuance criteria at 50 CFR 17.32(a)(2) for threatened species are more detailed and focus on the conservation needs of the species. The issuance criteria under 50 CFR 17.32(a)(2) considers the following factors: (1) 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; (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) 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; (4) 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; (5) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and (6) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.

It is generally more appropriate to regulate species that are not at risk of extinction but are treated as a listed species to conserve another species under our permitting regulations at 50 CFR 17.52 rather than 50 CFR 17.32 to ensure they are accurately identified prior to authorizing otherwise prohibited activity. We find that it would be appropriate to ensure the continued identification of the unlisted southern DPS of bog turtle as distinct from the listed northern DPS when authorizing otherwise prohibited activities. We anticipate persons involved in legal activities with the southern DPS would have access to the necessary information and have minimal difficulty meeting their burden to produce evidence that the specimen is from the southern DPS. The bog turtle is listed as threatened or endangered in every State in the southern and northern portion of the range and State-issued permits may also be needed for activities with the southern DPS.

We also propose to revise the wording at 50 CFR 17.42(f)(2) to make the current prohibitions and exceptions clearer. We currently cite to 50 CFR 17.31(a) and (b), which then cites to the applicable prohibitions and exceptions. Instead, we propose to cite directly to the applicable prohibitions and exceptions, as this is clearer for the public and is more in keeping with the current practice for species-specific rules. These minor clarifications would result in no change in prohibitions or exceptions.

This proposal would not alter any protections for the northern DPS of the bog turtle. Anyone under the jurisdiction of the United States that engages in prohibited activities with either the northern or southern DPS without a permit are subject to law enforcement. Additionally, this proposal would not affect any threatened species permits currently issued under the authority of 50 CFR 17.32 for the similarity of appearance species; any such permits issued under the stricter standards would continue to be valid in accordance with their terms and conditions.

We continue to find that the southern DPS of the bog turtle so closely resembles the northern DPS in appearance that enforcement personnel would have substantial difficulty in attempting to differentiate between the species, and the effect of this substantial difficulty is an additional threat to the northern DPS. We also find that this proposed revised treatment would continue to substantially facilitate the enforcement and the policy of the Act with a lower burden to the regulated public and is advisable in accordance with section 4(e).

Desert Tortoise (Mojave DPS) and Desert Tortoise (Sonoran DPS)

On April 2, 1990, the Service published a final rule (55 FR 12178) listing the Mojave DPS of desert tortoise as a threatened species due to habitat loss and degradation, illegal collection, disease, and predation. We also determined that treating the Sonoran DPS of desert tortoise as a threatened species due to similarity of appearance to the Mojave DPS would facilitate law enforcement (55 FR 12178 at 12189, April 2, 1990). Therefore, in that final rule, we also made final determinations to treat the Sonoran DPS (desert tortoise found outside of Arizona (south and east of the Colorado River) and Mexico) as a threatened species and issued regulations at 50 CFR 17.42(e) outlining the prohibitions and exceptions for the Sonoran DPS. We subsequently identified a threat to desert tortoises from their collection for human food sources (Service 1994, p. 6). In our status reviews (Service 2010, p. 48; Service 2022, p. 22), we explain that collection still occurs and could possibly impact local populations.

The regulations at 50 CFR 17.42(e) establish certain prohibitions and exceptions for activities with regard to the Sonoran DPS of desert tortoise. Specifically, the regulations make it illegal 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 following acts with regard to the Sonoran DPS: (1) import into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) within the United States, within the territorial sea of the United States, or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce.

The regulations also provide several exceptions to these prohibitions ( e.g., Federal and State law enforcement officers may possess, deliver, carry, transport, or ship the Sonoran DPS taken in violation of the Act as necessary in performing their official duties; certain individuals can take individuals to aid, salvage, or dispose of the Sonoran DPS; States, the Service and NMFS can take individuals when carrying out conservation programs; and the Service has the authority to permit otherwise prohibited actions under 50 CFR 17.32).

We propose to amend the treatment of the Sonoran DPS of desert tortoise as a threatened species by revising the regulations at 50 CFR 17.42(e) to authorize activities that are otherwise prohibited under a similarity of appearance permit (50 CFR 17.52) instead of a permit at 50 CFR 17.32 for the same rationale as provided for the bog turtle above. It is generally more appropriate to regulate species that are not at risk of extinction but are treated as a listed species to conserve another species, under our permitting regulations at 50 CFR 17.52 rather than 50 CFR 17.32, to ensure they are accurately identified prior to authorizing otherwise prohibited activity.

We find that it would be appropriate to ensure the continued identification of the unlisted Sonoran DPS as distinct from the listed Mojave DPS when authorizing otherwise prohibited activities. We anticipate persons involved in legal activities with desert tortoises from the Sonoran DPS would have access to the necessary information and have minimal difficulty meeting their burden to produce evidence that the specimen is from the Sonoran DPS.

We also propose to revise the wording at 50 CFR 17.42(e)(2) to make the current prohibitions and exceptions clearer. We currently cite to 50 CFR 17.31-17.32, which then cite to the applicable prohibitions and exceptions. Instead, we propose to cite directly to the applicable prohibitions and exceptions, as this is clearer for the public and is more in keeping with the current practice for species-specific rules. These minor clarifications would result in no change in prohibitions or exceptions.

This proposal would not alter any protections for the Mojave DPS of desert tortoise. Anyone under the jurisdiction of the United States that engages in prohibited activities with either the Mojave or Sonoran DPS without a permit is subject to law enforcement. Additionally, this proposal would not affect any threatened species permits currently issued under the authority of 50 CFR 17.32 for the similarity of appearance species; any such permits issued under the stricter standards would continue to be valid in accordance with their terms and conditions.

We continue to find that the Sonoran DPS of desert tortoise so closely resembles in appearance the Mojave DPS that enforcement personnel would have substantial difficulty in attempting to differentiate between the species, and the effect of this substantial difficulty is an additional threat to the Mojave DPS. We also find that this proposed revised treatment would continue to substantially facilitate the enforcement and the policy of the Act with a lower burden to the regulated public and is advisable in accordance with section 4(e).

Pearl River Map Turtle and Alabama Map Turtle, Barbour's Map Turtle, Escambia Map Turtle, and Pascagoula Map Turtle

On July 12, 2024, the Service published a final rule (89 FR 57206) listing the Pearl River map turtle as a threatened species. In that final rule, we also made final determinations to treat the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtles as threatened species and issued regulations at 50 CFR 17.42(n) outlining the prohibitions and exceptions for those species. We determined that the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle all closely resemble in appearance the Pearl River map turtle such that enforcement personnel would have substantial difficulty in attempting to differentiate between the species. We also determined that treating these species as listed species minimizes the possibility that private and commercial collectors will be able to misrepresent Pearl River map turtles as Alabama map turtles, Barbour's map turtles, Escambia map turtles, or Pascagoula map turtles for private or commercial purposes (89 FR 57206 at 57232, July 12, 2024).

The regulations at 50 CFR 17.42(n) establish certain prohibitions and exceptions for activities with regard to the Alabama map turtle, Barbour's map turtle, Escambia map turtle, or Pascagoula map turtle. Specifically, the regulations make it illegal 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 following acts with regard to the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle: (1) import into, or export from, the United States; (2) intentional take in the form of collect, capture, or trap (other than for scientific purposes); (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce.

The regulations also provide several exceptions to these prohibitions. For example, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle taken in violation of the Act as necessary in performing their official duties; certain individuals can take individuals to aid, salvage, or dispose of the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle; and the States, Service, and NMFS can take individuals when carrying out conservation programs; and the Service has the authority to permit otherwise prohibited actions under 50 CFR 17.32.

We propose to amend the treatment of the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle as threatened species by revising the regulations at 50 CFR 17.42(n) to authorize activities that are otherwise prohibited under a similarity of appearance permit at 50 CFR 17.52 instead of a permit at 50 CFR 17.32.

It is generally more appropriate to regulate species that are not at risk of extinction but are treated as a listed species to conserve another species, under our permitting regulations at 50 CFR 17.52 rather than 50 CFR 17.32, to ensure they are accurately identified prior to authorizing otherwise prohibited activity. We find that it would be appropriate to ensure the continued identification of these unlisted species as distinct from the Pearl River map turtle when authorizing otherwise prohibited activities. We anticipate persons involved in legal activities with these species would have access to the necessary information and have minimal difficulty meeting their burden to produce evidence of identification to the species level.

This proposal would not alter any protections for the Pearl River map turtle. Anyone under the jurisdiction of the United States that engages in prohibited activities with the Pearl River map turtle or the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle without a permit are subject to law enforcement. Additionally, this proposal would not affect any threatened species permits currently issued under the authority of 50 CFR 17.32 for the similarity of appearance species; any such permits issued under the stricter standards would continue to be valid in accordance with their terms and conditions.

We continue to find that the Alabama map turtle, Barbour's map turtle, Escambia map turtle, and Pascagoula map turtle so closely resembles in appearance the Pearl River map turtle that enforcement personnel would have substantial difficulty in attempting to differentiate between the species and the effect of this substantial difficulty is an additional threat to the Pearl River map turtle. We also find that this proposed revised treatment would continue to substantially facilitate the enforcement and the policy of the Act with a lower burden to the regulated public and is advisable in accordance with section 4(e).

Required Determinations

Regulatory Planning and Review-E.O.s 12866 and 13563

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq. )

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever a Federal 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). However, no regulatory flexibility analysis is required if the head of an agency, or that person's designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the RFA to require 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.

This rulemaking proposes to remove or revise the Service's regulations treating 11 species as threatened species under section 4(e) of the Act based on similarity of appearance to listed species. Removing treatment under section 4(e) or revising 4(e) regulations to require permitting under 50 CFR 17.52 instead of 17.32 would reduce regulatory burden. We certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. )

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained above in the Regulatory Flexibility Act section, this proposed rule would not "significantly or uniquely" affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

(b) This proposed rule would not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; that is, this proposed rule is not a "significant regulatory action" under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or Tribal governments.

Takings -E.O. 12630

In accordance with E.O. 12630 ("Governmental Actions and Interference with Constitutionally Protected Property Rights"), this proposed rule would not have significant takings implications. This proposed rule would not pertain to "taking" of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.

Federalism-E.O. 13132

In accordance with E.O. 13132 ("Federalism"), this proposed rule would not have significant federalism effects. This proposed rule would not have substantial direct effects on the States, on the relationship between the States and the Federal Government, or on the distribution of power and responsibilities among the various levels of government.

Civil Justice Reform-E.O. 12988

This proposed rule would not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988 ("Civil Justice Reform").

Government-to-Government Relationship With Tribes

In accordance with E.O.13175, ("Consultation and Coordination With Indian Tribal Governments"), and the Department of the Interior's manual at 512 DM 2, we are considering possible effects of this proposed rule on federally recognized Indian Tribes. The Service has reached a preliminary conclusion that the proposed rule would not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. This proposed rule would revise regulations for several species pursuant to section 4(e) of the Act. These proposed regulations would not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

We are considering the possible effects of this proposed rule on federally recognized Indian Tribes. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Secretary's Order 3206, "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act" (June 5, 1997).

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. )

This proposed rule does not contain any new collection of information that requires approval by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency 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 (NEPA) (42 U.S.C. 4321 et seq. )

We are analyzing this proposed rule in accordance with the criteria of the NEPA (42 U.S.C. 4321 et seq. ), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46), and the Department of the Interior Manual (516 DM 8). We invite the public to comment on the extent to which these proposed regulation revisions may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no reasonably foreseeable effects on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing these proposed regulation revisions.

Energy Supply, Distribution or Use-E.O. 13211

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

Clarity of the Proposed Rule

We are required by E.O.s 12866 and 12988 and by the Presidential memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

References Cited

A complete list of references cited in this proposed rule is available on the internet at https://www.regulations.gov under Docket No. FWS-HQ-ES-2025-0176 and upon request from the U.S. Fish and Wildlife Service, Division of Conservation and Classification (see FOR FURTHER INFORMATION CONTACT ).

Authority

We issue this proposed rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq. ).

Proposed Regulation Promulgation

For the reasons discussed in the preamble, we hereby propose to amend part 17 of chapter I, title 50 of the Code of Federal Regulations as set forth below:

PART 17-ENDANGERED AND THREATENED WILDLIFE AND PLANTS

* * * * *

(e) * * *

(2) Applicable provisions. Except as provided in §§ 17.4 through 17.8, or in a permit issued pursuant to § 17.52, the provisions of 17.31(b) of this section and all of the provisions of § 17.21 (for endangered species of wildlife), except § 17.21(c)(3) and (5), apply to any desert tortoise subject to this paragraph (e).

* * * * *

(f) * * *

(2) Prohibitions. Except as provided in paragraph (f)(3) of this section, §§ 17.4 through 17.8, or in a permit issued pursuant to § 17.52, the provisions of § 17.31(b) of this section and all of the provisions of § 17.21 (for endangered species of wildlife), except § 17.21(c)(3) and (5), apply (see also 50 CFR part 23).

* * * * *

(n) * * *

(2) * * *

(i) Conduct activities as authorized by a permit under § 17.52.

* * * * *

[FR Doc. 2025-18728 Filed 9-25-25; 8:45 am]

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