US - Endangered Species - Subpart D. Threatened Wildlife

Country of Origin: United States Citation: 50 C.F.R. § 17.31 - 17.48 Agency Origin: U.S. Fish and Wildlife Service Last Checked: April, 2023

Summary: These Endangered Species Act regulations relate to threatened species. Included in the provisions are requirements for obtaining permits to take such species for one of the following purposes: scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or incidental taking, or special purposes consistent with the purposes of the Act. Also included are special rules for certain mammals, reptiles, birds, and fishes among other species.

§ 17.31 Prohibitions.

§ 17.32 Permits--general.

§ 17.40 Special rules--Mammals.

§ 17.41 Special rules--birds.

§ 17.42 Special rules--reptiles.

§ 17.43 Special rules—amphibians.

§ 17.44 Special rules--fishes.

§ 17.45 Special rules--snails and clams.

§ 17.46 Special rules--crustaceans.

§ 17.47 Special rules--insects.

§ 17.48 Special rules--common sponges and other forms. [Reserved]

§ 17.31 Prohibitions.

Unconstitutional or Preempted; Vacated by In re Washington Cattlemen's Ass'n, No. 22-70194, 2022 WL 4393033 (9th Cir. Sept. 21, 2022)

(a) Except as provided in §§ 17.4 through 17.8, or in a permit issued under this subpart, all of the provisions of § 17.21, except § 17.21(c)(5), shall apply to threatened species of wildlife that were added to the List of Endangered and Threatened Wildlife in § 17.11(h) on or prior to September 26, 2019, unless the Secretary has promulgated species-specific provisions (see paragraph (c) of this section).

(b) In addition to any other provisions of this part, any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by that agency for such purposes, may, when acting in the course of official duties, take those threatened species of wildlife that are covered by an approved cooperative agreement to carry out conservation programs.

(c) Whenever a species-specific rule in §§ 17.40 through 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The species-specific rule will contain all the applicable prohibitions and exceptions.

Credits
[43 FR 18181, April 28, 1978, as amended at 44 FR 31580, May 31, 1979; 69 FR 62418, Oct. 26, 2004; 70 FR 10503, March 4, 2005; 84 FR 44760, Aug. 27, 2019]

SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.

AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.

§ 17.32 Permits--general.

Upon receipt of a complete application the Director may issue a permit for any activity otherwise prohibited with regard to threatened wildlife. Such permit shall be governed by the provisions of this section unless a special rule applicable to the wildlife, appearing in §§ 17.40 to 17.48, of this part provides otherwise. Permits issued under this section must be for one of the following purposes: Scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or incidental taking, or special purposes consistent with the purposes of the Act. Such permits may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time.

(a)(1) Application requirements for permits for scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or special purposes consistent with the purposes of the Act. A person wishing to get a permit for an activity prohibited by § 17.31 submits an application for activities under this paragraph. The Service provides Form 3–200 for the application to which as much of the following information relating to the purpose of the permit must be attached:

(i) The Common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, and the activity sought to be authorized (such as taking, exporting, selling in interstate commerce);

(ii) A statement as to whether, at the time of application, the wildlife sought to be covered by the permit (A) is still in the wild, (B) has already been removed from the wild, or (C) was born in captivity;

(iii) A resume of the applicant's attempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or removal from the wild of such wildlife;

(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; if the wildlife sought to be covered by permit was born in captivity, the country and place where such wildlife was born;

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

(vi) If the applicant seeks to have live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house and/or care for the wildlife and a resume of the experience of those persons who will be caring for the wildlife;

(vii) A full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit;

(viii) If the application is for the purpose of enhancement of propagation, a statement of the applicant's willingness to participate in a cooperative breeding program and to maintain or contribute data to a studbook;

(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (a)(1) of this section, the Director will decide whether or not a permit should be issued. In making this decision, the Director shall consider, in addition to the general criteria in § 13.21(b) of this subchapter, the following factors:

(i) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;

(ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;

(iii) Whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed;

(iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit;

(v) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and

(vi) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.

(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall be subject to the special condition that the escape of living wildlife covered by the permit shall be immediately reported to the Service office designated in the permit.

(4) Duration of permits. The duration of permits issued under this paragraph shall be designated on the face of the permit.

(b)(1) Application requirements for permits for incidental taking.

(i) A person wishing to get a permit for an activity prohibited by § 17.31 submits an application for activities under this paragraph.

(ii) The director shall publish notice in the Federal Register of each application for a permit that is made under this section. Each notice shall invite the submission from interested parties, within 30 days after the date of the notice, of written data, views, or arguments with respect to the application.

(iii) Each application must be submitted on an official application (Form 3–200) provided by the Service, and must include as an attachment, all of the following information:

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

(B) The common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, if known;

(1) The impact that will likely result from such taking;

(2) What steps the applicant will take to monitor, minimize, and mitigate such impacts, the funding that will be available to implement such steps, and the procedures to be used to deal with unforeseen circumstances;

(3) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not proposed to be utilized; and

(4) Such other measures that the Director may require as being necessary or appropriate for purposes of the plan.

(2) Issuance criteria.

(i) Upon receiving an application completed in accordance with paragraph (b)(1) of this section, the Director will decide whether or not a permit should be issued. The Director shall consider the general issuance criteria in 13.21(b) of this subchapter, except for 13.21(b)(4), and shall issue the permit if he or she finds that:

(A) The taking will be incidental;

(B) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings;

(C) The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided;

(D) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;

(E) The measures, if any, required under paragraph (b)(1)(iii)(D) of this section will be met; and

(F) He or she has received such other assurances as he or she may require that the plan will be implemented.

(ii) In making his or her decision, the Director shall also consider the anticipated duration and geographic scope of the applicant's planned activities, including the amount of listed species habitat that is involved and the degree to which listed species and their habitats are affected.

(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall contain such terms and conditions as the Director deems necessary or appropriate to carry out the purposes of the permit and the conservation plan including, but not limited to, monitoring and reporting requirements deemed necessary for determining whether such terms and conditions are being complied with. The Director shall rely upon existing reporting requirements to the maximum extent practicable.

(4) Duration of permits. The duration of permits issued under this paragraph shall be sufficient to provide adequate assurances to the permittee to commit funding necessary for the activities authorized by the permit, including conservation activities and land use restrictions. In determining the duration of a permit, the Director shall consider the duration of the planned activities, as well as the possible positive and negative effects associated with permits of the proposed duration on listed species, including the extent to which the conservation plan will enhance the habitat of listed species and increase the long-term survivability of such species.

(5) Assurances provided to permittee in case of changed or unforeseen circumstances. The assurances in this paragraph (b)(5) apply only to incidental take permits issued in accordance with paragraph (b)(2) of this section where the conservation plan is being properly implemented, and apply only with respect to species adequately covered by the conservation plan. These assurances cannot be provided to Federal agencies. This rule does not apply to incidental take permits issued prior to March 25, 1998. The assurances provided in incidental take permits issued prior to March 25, 1998 remain in effect, and those permits will not be revised as a result of this rulemaking.

(i) Changed circumstances provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and were provided for in the plan's operating conservation program, the permittee will implement the measures specified in the plan.

(ii) Changed circumstances not provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and such measures were not provided for in the plan's operating conservation program, the Director will not require any conservation and mitigation measures in addition to those provided for in the plan without the consent of the permittee, provided the plan is being properly implemented.

(iii) Unforeseen circumstances.

(A) In negotiating unforeseen circumstances, the Director will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee.

(B) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the conservation plan is being properly implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to the conservation plan's operating conservation program for the affected species, and maintain the original terms of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan without the consent of the permittee.

(C) The Director will have the burden of demonstrating that such unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. The Director will consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;

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

(3) Percentage of range conserved by the conservation plan;

(4) Ecological significance of that portion of the range affected by the conservation plan;

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

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

(6) Nothing in this rule will be construed to limit or constrain the Director, any Federal, State, local, or Tribal government agency, or a private entity, from taking additional actions at its own expense to protect or conserve a species included in a conservation plan.

(7) Discontinuance of permit activity. Notwithstanding the provisions of § 13.26 of this subchapter, a permittee under this paragraph (b) remains responsible for any outstanding minimization and mitigation measures required under the terms of the permit for take that occurs prior to surrender of the permit and such minimization and mitigation measures as may be required pursuant to the termination provisions of an implementing agreement, habitat conservation plan, or permit even after surrendering the permit to the Service pursuant to § 13.26 of this subchapter. The permit shall be deemed canceled only upon a determination by the Service that such minimization and mitigation measures have been implemented. Upon surrender of the permit, no further take shall be authorized under the terms of the surrendered permit.

(8) Criteria for revocation. A permit issued under paragraph (b) of this section may not be revoked for any reason except those set forth in § 13.28(a)(1) through (4) of this subchapter or unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been remedied.

(c)(1) Application requirements for permits for the enhancement of survival through Safe Harbor Agreements. The applicant must submit an application for a permit under this paragraph (c) to the appropriate Regional Director, U.S. Fish and Wildlife Service, for the Region where the applicant resides or where the proposed action is to occur (for appropriate addresses, see 50 CFR 10.22), if the applicant wishes to engage in any activity prohibited by § 17.31. The applicant must submit an official Service application form (3–200.54) that includes the following information:

(i) The common and scientific names of the listed species for which the applicant requests incidental take authorization;

(ii) A description of how incidental take of the covered species pursuant to the Safe Harbor Agreement is likely to occur, both as a result of management activities and as a result of the return to baseline;

(iii) A Safe Harbor Agreement that complies with the requirements of the Safe Harbor policy available from the Service; and

(iv) The Director must publish notice in the Federal Register of each application for a permit that is made under this paragraph (c). Each notice must invite the submission from interested parties within 30 days after the date of the notice of written data, views, or arguments with respect to the application. The procedures included in § 17.22(e) for permit objection apply to any notice published by the Director under this paragraph (c).

(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (c)(1) of this section, the Director will decide whether or not to issue a permit. The Director shall consider the general issuance criteria in § 13.21(b) of this subchapter, except for § 13.21(b)(4), and may issue the permit if he or she finds:

(i) The take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the Safe Harbor Agreement;

(ii) The implementation of the terms of the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the affected listed species by contributing to the recovery of listed species included in the permit, and the Safe Harbor Agreement otherwise complies with the Safe Harbor policy available from the Service;

(iii) The probable direct and indirect effects of any authorized take will not appreciably reduce the likelihood of survival and recovery in the wild of any listed species;

(iv) Implementation of the terms of the Safe Harbor Agreement is consistent with applicable Federal, State, and Tribal laws and regulations;

(v) Implementation of the terms of the Safe Harbor Agreement will not be in conflict with any ongoing conservation or recovery programs for listed species covered by the permit; and

(vi) The applicant has shown capability for and commitment to implementing all of the terms of the Safe Harbor Agreement.

(3) Permit conditions. In addition to any applicable general permit conditions set forth in part 13 of this subchapter, every permit issued under this paragraph (c) is subject to the following special conditions:

(i) A requirement for the participating property owner to notify the Service of any transfer of lands subject to a Safe Harbor Agreement;

(ii) When appropriate, a requirement for the permittee to give the Service reasonable advance notice (generally at least 30 days) of when he or she expects to incidentally take any listed species covered under the permit. Such notification will provide the Service with an opportunity to relocate affected individuals of the species, if possible and appropriate; and

(iii) Any additional requirements or conditions the Director deems necessary or appropriate to carry out the purposes of the permit and the Safe Harbor Agreement.

(4) Permit effective date. Permits issued under this paragraph (c) become effective the day of issuance for species covered by the Safe Harbor Agreement.

(5) Assurances provided to permittee.

(i) The assurances in subparagraph (ii) of this paragraph (c)(5) apply only to Safe Harbor permits issued in accordance with paragraph (c)(2) of this section where the Safe Harbor Agreement is being properly implemented, and apply only with respect to species covered by the Agreement and permit. These assurances cannot be provided to Federal agencies. The assurances provided in this section apply only to Safe Harbor permits issued after July 19, 1999.

(ii) The Director and the permittee may agree to revise or modify the management measures set forth in a Safe Harbor Agreement if the Director determines that such revisions or modifications do not change the Director's prior determination that the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the listed species. However, the Director may not require additional or different management activities to be undertaken by a permittee without the consent of the permittee.

(6) Additional actions. Nothing in this rule will be construed to limit or constrain the Director, any Federal, State, local or Tribal government agency, or a private entity, from taking additional actions at its own expense to protect or conserve a species included in a Safe Harbor Agreement.

(7) Criteria for revocation. The Director may not revoke a permit issued under paragraph (c) of this section except as provided in this paragraph. The Director may revoke a permit for any reason set forth in § 13.28(a)(1) through (4) of this subchapter. The Director may revoke a permit if continuation of the permitted activity would either appreciably reduce the likelihood of survival and recovery in the wild of any listed species or directly or indirectly alter designated critical habitat such that it appreciably diminishes the value of that critical habitat for both the survival and recovery of a listed species. Before revoking a permit for either of the latter two reasons, the Director, with the consent of the permittee, will pursue all appropriate options to avoid permit revocation. These options may include, but are not limited to: extending or modifying the existing permit, capturing and relocating the species, compensating the landowner to forgo the activity, purchasing an easement or fee simple interest in the property, or arranging for a third-party acquisition of an interest in the property.

(8) Duration of permits. The duration of permits issued under this paragraph (c) must be sufficient to provide a net conservation benefit to species covered in the enhancement of survival permit. In determining the duration of a permit, the Director will consider the duration of the planned activities, as well as the positive and negative effects associated with permits of the proposed duration on covered species, including the extent to which the conservation activities included in the Safe Harbor Agreement will enhance the survival and contribute to the recovery of listed species included in the permit.

(d)(1) Application requirements for permits for the enhancement of survival through Candidate Conservation Agreements with Assurances (CCAAs). The applicant must submit an application for a permit under this paragraph (d) to the appropriate Regional Director, U.S. Fish and Wildlife Service, for the Region where the applicant resides or where the proposed activity is to occur (for appropriate addresses, see 50 CFR 10.22). When a species covered by a CCAA is listed as threatened and the applicant wishes to engage in activities identified in the Agreement and otherwise prohibited by § 17.31, the applicant must apply for an enhancement of survival permit for species covered by the Agreement. The permit will become valid if and when covered proposed, candidate or other unlisted species is listed as a threatened species. The applicant must submit an official Service application form (3–200.54) that includes the following information:

(i) The common and scientific names of the species for which the applicant requests incidental take authorization;

(ii) A description of the land use or water management activity for which the applicant requests incidental take authorization; and

(iii) A CCAA that complies with the requirements of the Candidate Conservation Agreement with Assurances policy available from the Service.

(iv) The Director must publish notice in the Federal Register of each application for a permit that is made under this paragraph (d). Each notice must invite the submission from interested parties within 30 days after the date of the notice of written data, views, or arguments with respect to the application. The procedures included in § 17.22(e) for permit objection apply to any notice published by the Director under this paragraph (d).

(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (d)(1) of this section, the Director will decide whether or not to issue a permit. The Director shall consider the general issuance criteria in § 13.21(b) of this subchapter, except for § 13.21(b)(4), and may issue the permit if he or she finds:

(i) The take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the CCAA;

(ii) The implementation of the terms of the CCAA is reasonably expected to provide a net conservation benefit to the affected covered species by contributing to the conservation of the species included in the permit, and the CCAA otherwise complies with the Candidate Conservation Agreement with Assurances policy available from the Service;

(iii) The probable direct and indirect effects of any authorized take will not appreciably reduce the likelihood of survival and recovery in the wild of any species;

(iv) Implementation of the terms of the CCAA is consistent with applicable Federal, State, and Tribal laws and regulations;

(v) Implementation of the terms of the CCAA will not be in conflict with any ongoing conservation programs for species covered by the permit; and

(vi) The applicant has shown capability for and commitment to implementing all of the terms of the CCAA.

(3) Permit conditions. In addition to any applicable general permit conditions set forth in part 13 of this subchapter, every permit issued under this paragraph (d) is subject to the following special conditions:

(i) A requirement for the property owner to notify the Service of any transfer of lands subject to a CCAA;

(iii) Any additional requirements or conditions the Director deems necessary or appropriate to carry out the purposes of the permit and the CCAA.

(4) Permit effective date. Permits issued under this paragraph (d) become effective for a species covered by a CCAA on the effective date of a final rule that lists a covered species as threatened.

(5) Assurances provided to permittee in case of changed or unforeseen circumstances. The assurances in this paragraph (d)(5) apply only to permits issued in accordance with paragraph (d)(2) where the CCAA is being properly implemented, and apply only with respect to species adequately covered by the CCAA. These assurances cannot be provided to Federal agencies.

(i) Changed circumstances provided for in the Agreement. If the Director determines that additional conservation measures are necessary to respond to changed circumstances and these measures were set forth in the Agreement, the permittee will implement the measures specified in the Agreement.

(ii) Changed circumstances not provided for in the Agreement. If the Director determines that additional conservation measures not provided for in the Agreement are necessary to respond to changed circumstances, the Director will not require any conservation measures in addition to those provided for in the Agreement without the consent of the permittee, provided the Agreement is being properly implemented.

(iii) Unforeseen circumstances.

(B) If the Director determines additional conservation measures are necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the Agreement is being properly implemented, but only if such measures maintain the original terms of the Agreement to the maximum extent possible. Additional conservation measures will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the Agreement without the consent of the permittee.

(C) The Director will have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. The Director will consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;

(2) Percentage of range adversely affected by the Agreement;

(3) Percentage of range conserved by the Agreement;

(4) Ecological significance of that portion of the range affected by the Agreement;

(5) Level of knowledge about the affected species and the degree of specificity of the species' conservation program under the Agreement; 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.

(7) Criteria for revocation. The Director may not revoke a permit issued under paragraph (d) of this section except as provided in this paragraph. The Director may revoke a permit for any reason set forth in § 13.28(a)(1) through (4) of this subchapter. The Director may revoke a permit if continuation of the permitted activity would either appreciably reduce the likelihood of survival and recovery in the wild of any listed species or directly or indirectly alter designated critical habitat such that it appreciably diminishes the value of that critical habitat for both the survival and recovery of a listed species. Before revoking a permit for either of the latter two reasons, the Director, with the consent of the permittee, will pursue all appropriate options to avoid permit revocation. These options may include, but are not limited to: extending or modifying the existing permit, capturing and relocating the species, compensating the landowner to forgo the activity, purchasing an easement or fee simple interest in the property, or arranging for a third-party acquisition of an interest in the property.

(8) Duration. The duration of a CCAA covered by a permit issued under this paragraph (d) must be sufficient to achieve a net conservation benefit to the species covered by the permit and the Agreement and otherwise comply with the Candidate Conservation Agreement with Assurances policy available from the Service.

Credits
[40 FR 44415, Sept. 26, 1975, as amended at 41 FR 19226, May 11, 1976; 47 FR 30787, July 15, 1982; 50 FR 39689, Sept. 30, 1985; 63 FR 8871, Feb. 23, 1998; 63 FR 52635, Oct. 1, 1998; 64 FR 32714, June 17, 1999; 64 FR 52676, Sept. 30, 1999; 69 FR 24093, May 3, 2004; 69 FR 29670, May 25, 2004; 69 FR 71731, Dec. 10, 2004; 81 FR 95055, Dec. 27, 2016; 82 FR 8501, Jan. 26, 2017]

AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted..

§ 17.40 Special rules--Mammals.

(a) Mazama pocket gophers (Olympia, Roy Prairie, Tenino, and Yelm) (Thomomys mazama pugetensis, glacialis, tumuli, and yelmensis)—

(1) Which populations of the Mazama pocket gopher are covered by this special rule? This special rule covers the four Thurston/Pierce subspecies of the Mazama pocket gopher (Olympia, Roy Prairie, Tenino, and Yelm) (Thomomys mazama pugetensis, glacialis, tumuli, and yelmensis) wherever they occur.

(2) What activities are prohibited? Except as noted in paragraphs (a)(3) through (7) of this section, all prohibitions of § 17.31 apply to the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers.

(3) What activities are allowed on civilian airports? Incidental take of the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers will not be a violation of section 9 of the Act, if the incidental take results from non–Federal routine maintenance activities in or adjacent to Mazama pocket gopher habitat and associated with airport operations on civilian airports. Routine maintenance activities include the following:

(i) Routine management, repair, and maintenance of runways, roads, and taxiways (does not include upgrades, or construction of new runways, roads, or taxiways, or new development at airports);

(ii) Hazing of hazardous wildlife;

(iii) Management of forage, water, and shelter to reduce the attractiveness of the area around airports for hazardous wildlife; and

(iv) Control or other management of noxious weeds and invasive plants through mowing, discing, herbicide and fungicide application, fumigation, or burning. Use of herbicides, fungicides, fumigation, and burning must occur in such a way that nontarget plants are avoided to the maximum extent practicable.

(4) What agricultural activities are allowed on non–Federal lands? Incidental take of the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers will not be a violation of section 9 of the Act, if the incidental take results from agricultural or horticultural (farming) practices implemented on such lands consistent with State laws on non–Federal lands. For the purposes of this special rule, farm means any facility, including land, buildings, watercourses, and appurtenances, used in the commercial production of crops, nursery or orchard stock, the propagation and raising of nursery or orchard stock, livestock or poultry, or livestock or poultry products.

(i) For the purposes of this special rule, an agricultural (farming) practice means a mode of operation on a farm that:

(A) Is or may be used on a farm of a similar nature;

(B) Is a generally accepted, reasonable, and prudent method for the operation of the farm to obtain a profit in money;

(D) Complies with applicable State laws;

(E) Is done in a reasonable and prudent manner.

(ii) Accepted agricultural or horticultural (farming) practices include:

(A) Grazing;

(B) Routine installation, management, and maintenance of stock water facilities such as stock ponds, berms, troughs, and tanks, pipelines and watering systems to maintain water supplies;

(D) Planting, harvest, fertilization, harrowing, tilling, or rotation of crops (Disturbance to the soils shall not exceed a 12–inch (30.5–cm) depth. All activities that do not disturb the soil surface are also allowed, such as haying, baling, some orchard and berry plant management activities, etc.);

(E) Maintenance of livestock management facilities such as corrals, sheds, and other ranch outbuildings;

(F) Repair and maintenance of unimproved agricultural roads (This exemption does not include improvement, upgrade, or construction of new roads.);

(G) Placement of mineral supplements, plant nutrients, or soil amendments;

(H) Harvest, control, or other management of noxious weeds and invasive plants through mowing, discing, herbicide and fungicide application, fumigation, or burning (Use of herbicides, fungicides, fumigation, and burning must occur in such a way that nontarget plants are avoided to the maximum extent practicable.); and

(I) Deep tillage (usually at depths of 18–36 inches (45.7–91.4 cm), for compaction reduction purposes) occurring between September 1 and February 28, no more often than once in 10 years.

(5) What noncommercial activities are allowed on single-family residential private land? Incidental take of the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers will not be a violation of section 9 of the Act, if the incidental take results from noncommercial activities that occur in or adjacent to Mazama pocket gopher habitat on existing single-family residential properties. These activities include the following:

(i) Harvest, control, or other management of noxious weeds and invasive plants through mowing, herbicide and fungicide application, fumigation, or burning. Use of herbicides, fungicides, fumigation, and burning must occur in such a way that nontarget plants are avoided to the maximum extent practicable;

(ii) Construction and placement of fencing, garden plots, or play equipment; and

(iii) Construction and placement of dog kennels, carports, or storage sheds less than 120 ft2 (11.15 m2) in size.

(6) What noxious weed and invasive plant control activities are allowed on non–Federal lands? Incidental take of the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers will not be a violation of section 9 of the Act, if the incidental take results from routine removal or other management of noxious weeds and invasive plants. Routine removal or other management of noxious weeds and invasive plants are limited to the following, and must be conducted in a way that impacts to nontarget plants are avoided to the maximum extent practicable:

(i) Mowing;

(ii) Discing;

(iii) Herbicide and fungicide application;

(iv) Fumigation; and

(v) Burning.

(7) What roadside right-of-way maintenance activities are allowed on Federal and non–Federal lands? Incidental take of the Olympia, Roy Prairie, Tenino, and Yelm pocket gophers will not be a violation of section 9 of the Act, if the incidental take results from routine maintenance of roadside rights-of-way on Federal and non–Federal lands. Routine maintenance activities of roadside rights-of-way of highways and roads are limited to the following, and must be conducted in a way that impacts to nontarget plants are avoided to the maximum extent practicable:

(i) Mowing;

(ii) Mechanical removal of noxious weeds or invasive plants;

(iii) Selective application of herbicides for removal of noxious weeds or invasive plants; and

(iv) Repair or maintenance of fences.

(b) Grizzly bear (Ursus arctos horribilis)—

(1) Prohibitions. The following prohibitions apply to the grizzly bear:

(i) Taking.

(A) Except as provided in paragraphs (b)(1)(i)(B) through (F) of this section, no person shall take any grizzly bear in the 48 conterminous states of the United States.

(B) Grizzly bears may be taken in self-defense or in defense of others, but such taking shall be reported by the individual who has taken the bear or his designee within 5 days of occurrence to the Resident Agent in Charge, Office of Law Enforcement, U.S. Fish and Wildlife Service, 2900 4th Avenue North, Suite 301, Billings, MT 59101 (406–247–7355), if occurring in Montana or Wyoming, or the Special Agent in Charge, Office of Law Enforcement, U.S. Fish and Wildlife Service, P.O. Box 9, Sherwood, OR 97140 (503–521–5300), if occurring in Idaho or Washington, and to appropriate State and Tribal authorities. Grizzly bears taken in self-defense or in defense of others, including the parts of such bears, shall not be possessed, delivered, carried, transported, shipped, exported, received, or sold, except by Federal, State, or Tribal authorities.

(C) Removal of nuisance bears. A grizzly bear constituting a demonstrable but non immediate threat to human safety or committing significant depredations to lawfully present livestock, crops, or beehives may be taken, but only if:

(1) It has not been reasonably possible to eliminate such threat or depredation by live-capturing and releasing unharmed in a remote area the grizzly bear involved; and

(2) The taking is done in a humane manner by authorized Federal, State, or Tribal authorities, and in accordance with current interagency guidelines covering the taking of such nuisance bears; and

(3) The taking is reported within 5 days of occurrence to the appropriate U.S. Fish and Wildlife Service law enforcement office, as indicated in paragraph (b)(1)(i)(B) of this section, and to appropriate State and Tribal authorities.

(D) Federal, State, or Tribal scientific or research activities. Federal, State, or Tribal authorities may take grizzly bears for scientific or research purposes, but only if such taking does not result in death or permanent injury to the bears involved. Such taking must be reported within 5 days of occurrence to the appropriate U.S. Fish and Wildlife Service law enforcement office, as indicated in paragraph (b)(1)(i)(B) of this section, and to appropriate State and Tribal authorities.

(E) [Reserved]

(F) National Parks. The regulations of the National Park Service shall govern all taking of grizzly bears in National Parks.

(ii) Unlawfully taken grizzly bears.

(A) Except as provided in paragraphs (b)(1)(ii)(B) and (iv) of this section, no person shall possess, deliver, carry, transport, ship, export, receive, or sell any unlawfully taken grizzly bear. Any unlawful taking of a grizzly bear shall be reported within 5 days of occurrence to the appropriate U.S. Fish and Wildlife Service law enforcement office, as indicated in paragraph

(b)(1)(i)(B) of this section, and to appropriate State and Tribal authorities.

(B) Authorized Federal, State, or Tribal employees, when acting in the course of their official duties, may, for scientific or research purposes, possess, deliver, carry, transport, ship, export, or receive unlawfully taken grizzly bears.

(iii) Import or export. Except as provided in paragraphs (b)(1)(iii) (A) and (B) and (iv) of this section, no person shall import any grizzly bear into the United States.

(A) Federal, State, or Tribal scientific or research activities. Federal, State, or Tribal authorities may import grizzly bears into the United States for scientific or research purposes.

(B) Public zoological institution. Public zoological institutions (see 50 CFR 10.12) may import grizzly bears into the United States.

(iv) Commercial transactions.

(A) Except as provided in paragraph (b)(1)(iv)(B) of this section, no person shall, in the course of commercial activity, deliver, receive, carry, transport, or ship in interstate or foreign commerce any grizzly bear.

(B) A public zoological institution (see 50 CFR 10.12) dealing with other public zoological institutions may sell grizzly bears or offer them for sale in interstate or foreign commerce, and may, in the course of commercial activity, deliver, receive, carry, transport, or ship grizzly bears in interstate or foreign commerce.

(v) Other violations. No person shall attempt to commit, cause to be committed, or solicit another to commit any act prohibited by paragraph (b)(1) of this section.

(2) Definitions. As used in paragraph (b) of this section:

Grizzly bear means any member of the species Ursus arctos horribilis of the 48 conterminous States of the United States, including any part, offspring, dead body, part of a dead body, or product of such species.

Grizzly bear accompanied by young means any grizzly bear having offspring, including one or more cubs, yearlings, or 2–year-olds, in its immediate vicinity.
Identified means permanently marked or documented so as to be identifiable by law enforcement officials at a subsequent date.

State, Federal or Tribal authority means an employee of State, Federal, or Indian Tribal government who, as part of his/her official duties, normally handles grizzly bears.

Young grizzly bear means a cub, yearling, or 2-year-old grizzly bear.

Image 1 within § 17.40 Special rules—mammals.

(1) Except as noted in paragraph (c)(2) of this section, all provisions of § 17.31 apply to the lesser slow loris (Nycticebus pygmaeus); Philippine tarsier (Tarsius syrichta); white-footed tamarin (Saguinus leucopus); black howler monkey (Alouatta pigra); stump-tailed macaque (Macaca arctoides); gelada baboon (Theropithecus gelada); Formosan rock macaque (Macaca cyclopis); Japanese macaque (Macaca fuscata); Toque macaque (Macaca sinica); long-tailed langur (Presbytis potenziani); and purple-faced langur (Presbytis senex).

(2) The prohibitions referred to above do not apply to any live member of such species held in captivity in the United States on the effective date of the final rulemaking, or to the progeny of such animals, or to the progeny of animals legally imported into the United States after the effective date of the final rulemaking, Provided, That the person wishing to engage in any activity which would otherwise be prohibited must be able to show satisfactory documentary or other evidence as to the captive status of the particular member of the species on the effective date of this rulemaking or that the particular member of the species was born in captivity in the United States after the effective date of this rulemaking. Identification of the particular member to a record in the International Species Inventory System (ISIS), or to a Federal, State or local government permit, shall be deemed to be satisfactory evidence. Records in the form of studbooks or inventories, kept in the normal course of business, shall be acceptable as evidence, provided that a notarized statement is inserted in such record to the effect that:

(i) The records were kept in the normal course of business prior to November 18, 1976, and accurately identify (by use of markers, tags, or other acceptable marking devices) individual animals; or

(ii) That the individual animal identified by the records was born in captivity on ________ (Date).

The notarized statement in paragraph (c)(2)(i) of this section, shall be acceptable only if the notarization is dated on or before January 3, 1977. The notarized statement in paragraph

(c)(2)(ii), of this section, shall be acceptable only if the notarization is dated within 15 days of the date of birth of the animal.

(d) [Reserved by 85 FR 69895]

(e) African elephant (Loxodonta africana). This paragraph (e) applies to any specimen of the species Loxodonta africana whether live or dead, including any part or product thereof. The African Elephant Conservation Act (16 U.S.C. 4201 et. seq.), and any moratorium under that act, also applies. Except as provided in paragraphs (e)(2) through (9) of this section, all of the prohibitions and exceptions in §§ 17.31 and 17.32 apply to the African elephant. Persons seeking to benefit from the exceptions provided in this paragraph (e) must demonstrate that they meet the criteria to qualify for the exceptions.

(1) Definitions. In this paragraph (e), antique means any item that meets all four criteria under section 10(h) of the Endangered Species Act (16 U.S.C. 1539(h)). Ivory means any African elephant tusk and any piece of an African elephant tusk. Raw ivory means any African elephant tusk, and any piece thereof, the surface of which, polished or unpolished, is unaltered or minimally carved. Worked ivory means any African elephant tusk, and any piece thereof, that is not raw ivory.

(2) Live animals and parts and products other than ivory and sport-hunted trophies. Live African elephants and African elephant parts and products other than ivory and sport-hunted trophies may be imported into or exported from the United States; sold or offered for sale in interstate or foreign commerce; and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity without a threatened species permit issued under § 17.32, provided the requirements in 50 CFR parts 13, 14, and 23 have been met.

(3) Interstate and foreign commerce of ivory. Except for antiques and certain manufactured or handcrafted items containing de minimis quantities of ivory, sale or offer for sale of ivory in interstate or foreign commerce and delivery, receipt, carrying, transport, or shipment of ivory in interstate or foreign commerce in the course of a commercial activity is prohibited. Except as provided in paragraphs (e)(5)(iii) and (e)(6) through (8) of this section, manufactured or handcrafted items containing de minimis quantities of ivory may be sold or offered for sale in interstate or foreign commerce and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity without a threatened species permit issued under § 17.32, provided they meet all of the following criteria:

(i) If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre–Convention certificate with no limitation on its commercial use;

(ii) If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;

(iii) The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item;

(iv) The ivory is not raw;

(v) The manufactured or handcrafted item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 percent of the item by volume;

(vi) The total weight of the ivory component or components is less than 200 grams; and

(vii) The item was manufactured or handcrafted before July 6, 2016.

(4) Import/export of raw ivory. Except as provided in paragraphs (e)(6) through (9) of this section, raw ivory may not be imported into or exported from the United States.

(5) Import/export of worked ivory. Except as provided in paragraphs (e)(6) through (9) of this section, worked ivory may not be imported into or exported from the United States unless it is contained in a musical instrument, or is part of a traveling exhibition, household move, or inheritance, and meets the following criteria:

(i) Musical instrument. Musical instruments that contain worked ivory may be imported into and exported from the United States without a threatened species permit issued under § 17.32 of this part provided:

(A) The ivory was legally acquired prior to February 26, 1976;

(B) The instrument containing worked ivory is accompanied by a valid CITES musical instrument certificate or equivalent CITES document;

(C) The instrument is securely marked or uniquely identified so that authorities can verify that the certificate corresponds to the musical instrument in question; and

(D) The instrument is not sold, traded, or otherwise disposed of while outside the certificate holder's country of usual residence.

(ii) Traveling exhibition. Worked ivory that is part of a traveling exhibition may be imported into and exported from the United States without a threatened species permit issued under § 17.32 provided:

(A) The ivory was legally acquired prior to February 26, 1976;

(B) The item containing worked ivory is accompanied by a valid CITES traveling exhibition certificate (see the requirements for traveling exhibition certificates at 50 CFR 23.49) or equivalent CITES document;

(C) The item containing ivory is securely marked or uniquely identified so that authorities can verify that the certificate corresponds to the item in question; and

(D) The item containing worked ivory is not sold, traded, or otherwise disposed of while outside the certificate holder's country of usual residence.

(iii) Household move or inheritance. Worked ivory may be imported into or exported from the United States without a threatened species permit issued under § 17.32 for personal use as part of a household move or as part of an inheritance if the ivory was legally acquired prior to February 26, 1976, and the item is accompanied by a valid CITES pre–Convention certificate. It is unlawful to sell or offer for sale in interstate or foreign commerce or to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any African elephant ivory imported into the United States as part of a household move or inheritance. The exception in paragraph (e)(3) of this section regarding manufactured or handcrafted items containing de minimis quantities of ivory does not apply to items imported or exported under this paragraph (e)(5)(iii) as part of a household move or inheritance.

(6) Sport-hunted trophies.

(i) African elephant sport-hunted trophies may be imported into the United States provided:

(A) The trophy was legally taken in an African elephant range country that declared an ivory export quota to the CITES Secretariat for the year in which the trophy animal was killed;

(B) A determination is made that the killing of the trophy animal will enhance the survival of the species and the trophy is accompanied by a threatened species permit issued under § 17.32;

(D) The requirements in 50 CFR parts 13, 14, and 23 have been met; and

(E) No more than two African elephant sport-hunted trophies are imported by any hunter in a calendar year.

(ii) It is unlawful to sell or offer for sale in interstate or foreign commerce or to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any sport-hunted African elephant trophy. The exception in paragraph (e)(3) of this section regarding manufactured or handcrafted items containing de minimis quantities of ivory does not apply to ivory imported or exported under this paragraph (e)(6) as part of a sport-hunted trophy.

(iii) Except as provided in paragraph (e)(9) of this section, raw ivory that was imported as part of a sport-hunted trophy may not be exported from the United States. Except as provided in paragraphs (e)(5), (e)(7), (e)(8), and (e)(9) of this section, worked ivory imported as a sport-hunted trophy may not be exported from the United States. Parts of a sport-hunted trophy other than ivory may be exported from the United States without a threatened species permit issued under § 17.32, provided the requirements of 50 CFR parts 13, 14, and 23 have been met.

(7) Import/export of ivory for law enforcement purposes. Raw or worked ivory may be imported into and worked ivory may be exported from the United States by an employee or agent of a Federal, State, or tribal government agency for law enforcement purposes, without a threatened species permit issued under § 17.32, provided the requirements of 50 CFR parts 13, 14, and 23 have been met. It is unlawful to sell or offer for sale in interstate or foreign commerce and to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any African elephant ivory that was imported into or exported from the United States for law enforcement purposes. The exception in paragraph (e)(3) of this section regarding manufactured or handcrafted items containing de minimis quantities of ivory does not apply to ivory imported or exported under this paragraph (e)(7) for law enforcement purposes.

(8) Import/export of ivory for genuine scientific purposes.

(i) Raw or worked ivory may be imported into and worked ivory may be exported from the United States for genuine scientific purposes that will contribute to the conservation of the African elephant, provided:

(A) It is accompanied by a threatened species permit issued under § 17.32; and

(B) The requirements of 50 CFR parts 13, 14, and 23 have been met.

(ii) It is unlawful to sell or offer for sale in interstate or foreign commerce and to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any African elephant ivory that was imported into or exported from the United States for genuine scientific purposes. The exception in paragraph (e)(3) of this section regarding manufactured or handcrafted items containing de minimis quantities of ivory does not apply to ivory imported or exported under this paragraph (e)(8) for genuine scientific purposes.

(9) Antique ivory. Antiques (as defined in paragraph (e)(1) of this section) are not subject to the provisions of this rule. Antiques containing or consisting of ivory may, therefore, be imported into or exported from the United States without a threatened species permit issued under § 17.32, provided the requirements of 50 CFR parts 13, 14, and 23 have been met. Nevertheless, nothing in this rule interprets or changes any provisions or prohibitions that may apply under the African Elephant Conservation Act (16 U.S.C. 4201 et seq.), regardless of the age of the item. Antiques that consist of or contain raw or worked ivory may similarly be sold or offered for sale in interstate or foreign commerce and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity without a threatened species permit issued under § 17.32.

(f) Leopard (Panthera pardus)

(1) Except as noted in paragraph (f)(2) of this section, all prohibitions of § 17.31 of this part and exemptions of § 17.32 of this part shall apply to the leopard populations occurring in southern Africa to the south of a line running along the borders of the following countries: Gabon/Rio Muni; Gabon/Cameroon; Congo/Cameroon; Congo/Central African Republic; Zaire/Central African Republic; Zaire/Sudan; Uganda/Sudan; Kenya/Sudan; Kenya/Ethiopia; Kenya/Somalia.

(2) A sport-hunted leopard trophy legally taken after the effective date of this rulemaking, from the area south of the line delineated above, may be imported into the United States without a Threatened Species permit pursuant to § 17.32 of this part, provided that the applicable provisions of 50 CFR part 23 have been met.

(g) Utah prairie dog (Cynomys parvidens).

(1) Except as noted in paragraphs (g)(2) through (g)(6) of this section, all prohibitions of § 17.31(a) and (b) and exemptions of § 17.32 apply to the Utah prairie dog.

(2) A Utah prairie dog may be directly or intentionally taken as described in paragraphs (g)(3) and (4) of this section on agricultural lands, properties within 0.8 kilometers (km) (0.5 miles (mi)) of conservation lands, and areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites.

(3) Agricultural lands and properties near conservation lands. When permitted by the Utah Division of Wildlife Resources (UDWR), or other parties as authorized in writing by the Service, direct or intentional take is allowed on private properties that are located within 0.8 km (0.5 mi) of conservation land, and on agricultural land. Records on permitted take will be maintained by the State (or other parties as authorized in writing by the Service), and made available to the Service upon request.

(i) Agricultural land.

(A) Take may be permitted only on agricultural land being physically or economically affected by Utah prairie dogs, and only when the spring count on the agricultural lands is seven or more individuals, and only during the period of June 15 to December 31; and

(B) The land must:

(1) Meet the general classification of irrigated, dryland, grazing land, orchard, or meadow;

(2) Be capable of producing crops or forage;

(3) Be at least 2 contiguous hectares (5 contiguous acres) in area (smaller parcels may qualify where devoted to agricultural use in conjunction with other eligible acreage under identical legal ownership);

(4) Be managed in such a way that there is a reasonable expectation of profit;

(5) Have been devoted to agricultural use for at least 2 successive years immediately preceding the year in which application is made; and

(6) Meet State average annual (per-acre) production requirements.

(ii) Private property near conservation land.

(A) Take may be permitted on private properties within 0.8 km (0.5 mi) of Utah prairie dog conservation land during the period of June 15 to December 31.

(B) Conservation lands are defined as non–Federal areas set aside for the preservation of Utah prairie dogs and are managed specifically or primarily toward that purpose. Conservation lands may include, but are not limited to, properties set aside as conservation banks, fee-title purchased properties, properties under conservation easements, and properties subject to a safe harbor agreement (see § 17.22). Conservation lands do not include Federal lands.

(iii) Amount of permitted take on agricultural lands and private property near conservation land.

(A) The UDWR, or other parties as authorized in writing by the Service, will ensure that permitted take on agricultural lands and properties within 0.8 km (0.5 mi) of conservation lands does not exceed 10 percent of the estimated rangewide population annually.

(B) On agricultural lands, the UDWR, or other parties as authorized in writing by the Service, will limit permitted take to 7 percent of the estimated annual rangewide population and will limit within-colony take to one-half of a colony's estimated annual production. The UDWR, or other parties as authorized in writing by the Service, will spatially distribute the 7 percent allowed take on agricultural lands across the three Recovery Units, based on the distribution of the total annual population estimate within each Recovery Unit.

(C) In setting take limits on properties within 0.8 km (0.5 mi) of conservation lands, the UDWR, or other parties as authorized in writing by the Service, will consider the amount of take that occurs on agricultural lands. The State, or other parties as authorized in writing by the Service, will restrict the remaining permitted take (the amount that would bring the total take up to 10 percent of the estimated annual rangewide population) on properties within 0.8 km (0.5 mi) of conservation lands to animals in excess of the baseline population. The baseline population of these lands is determined in accordance with paragraph (g)(3)(iii)(D) of this section.

(D) Take on properties within 0.8 km (0.5 mi) of conservation lands is restricted to prairie dogs in excess of the baseline population. The baseline population is the highest estimated total (summer) population size on that property during the 5 years prior to the establishment of the conservation property, except that if no UDWR surveys to determine population size on a property were conducted during such 5–year period, the baseline population is the estimated total (summer) population size on that property as determined in the first survey conducted after the establishment of the conservation property. The baseline population will be established by the UDWR, or other parties as authorized in writing by the Service.

(E) Translocated Utah prairie dogs will count toward the take limits in paragraphs (g)(3)(iii)(A) through (D) of this section.

(iv) Methods of allowed direct take on agricultural lands and private properties near conservation land. Methods for controlling Utah prairie dogs on agricultural lands and properties within 0.8 km (0.5 mi) of conservation lands are limited to activities associated with translocation efforts by trained and permitted individuals complying with current Service-approved guidance, trapping intended for lethal removal, and shooting. Actions intended to drown or poison Utah prairie dogs and the use of gas cartridges, anticoagulants, and explosive devices are prohibited.

(4) Human safety hazards and significant human cultural or human burial sites.

(i) Nonlethal take is allowed where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites, if approved in writing by the Service. To reduce hazards, prairie dog burrows may be filled with dirt if they are directly creating human hazards or disturbing the sanctity of significant human cultural or human burial sites. Utah prairie dogs also may be translocated from these sites to approved translocation sites by properly trained personnel using Service-approved translocation protocols.

(ii) Direct or intentional lethal take is allowed where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites, but only after all practicable measures to resolve the conflict are implemented, and only as approved in writing by the Service. A permit is not required to allow take under these conditions.

(A) All practicable measures means, with respect to these situations:

(1) Construction of prairie-dog-proof fence, above and below grade to specifications approved by the Service, around the area in which there is concern.

(2) Translocation of Utah prairie dogs out of the fenced area in which there is a concern must be conducted prior to allowing lethal take. Lethal take is allowed only to remove prairie dogs that remain in these areas after the measures to fence and translocate are successfully carried out.

(3) Continued maintenance or modification of the fence as needed to preclude Utah prairie dogs from entering the fenced sites.

(B) There are no restrictions on the amount, timing, or methods of lethal take allowed on lands where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites, as long as all qualifications in paragraphs (g)(4)(ii)(A)(1)through (3) of this section are met.

(C) The amount of take in areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites does not contribute to the upper permitted take limits described above for agricultural lands and private properties within 0.8 km (0.5 mi) of conservation lands.

(5) Incidental take associated with agriculture. Utah prairie dogs may be taken when take is incidental to otherwise-legal activities associated with legal and standard agricultural practices on legitimately operating agricultural lands. Acceptable practices include plowing to depths that do not exceed 46 cm (18 in.), discing, harrowing, irrigating crops, mowing, harvesting, and bailing, as long as the activities are not intended to eradicate Utah prairie dogs. There is no numeric limit established for incidental take associated with standard agricultural practices. Incidental take is in addition to, and does not contribute to, the take limits described in paragraphs (g)(2) through (4) of this section. A permit is not required for incidental take associated with agricultural practices.

(6) If the Service receives evidence that take pursuant to paragraphs (g)(2) through (5) of this section is having an effect that is inconsistent with the conservation of the Utah prairie dog, the Service may immediately prohibit or restrict such take as appropriate for the conservation of the species. The Service will notify the permitting entities in writing if take restrictions are necessary.

(h) Mountain lion (Felis concolor).

(1) Except as allowed in paragraphs (h)(2), (h)(3), and (h)(4) of this section, no person shall take any free-living mountain lion (Felis concolor) in Florida.

(2) A mountain lion (Felis concolor) may be taken in this area under a valid threatened species permit issued pursuant to 50 CFR 17.52.

(3) A mountain lion (Felis concolor) may be taken in Florida by an employee or designated agent of the Service or the Florida Game and Fresh Water Fish Commission 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 (Felis concolor coryi) 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 Fish and Wildlife Service.

(4) Take for reasons of human safety is allowed as specified under 50 CFR 17.21(c)(2) and 17.21(c)(3)(iv).

(5) Any take pursuant to paragraph (h)(4) of this section must be reported in writing to the U.S. Fish and Wildlife Service, Office of Law Enforcement, 4401 N. Fairfax Drive, LE–3000, Arlington, VA 22203, within 5 days. The specimen may only be retained, disposed of, or salvaged in accordance with directions from the Service.

(i) Columbian white-tailed deer (Odocoileus virginianus leucurus) (CWTD), the Columbia River distinct population segment.

(1) General requirements. Other than as expressly provided at paragraph (i)(3) of this section, the provisions of § 17.31(a) apply to the CWTD.

(2) Definitions. For the purposes of this entry:

(i) CWTD means the Columbia River distinct population segment (DPS) of Columbian white-tailed deer or individual specimens of CWTD.

(ii) Intentional harassment means an intentional act which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. Intentional harassment may include prior purposeful actions to attract, track, wait for, or search out CWTD, or purposeful actions to deter CWTD.

(iii) Problem CWTD means an individual specimen of CWTD that has been identified in writing by a State conservation agency or the Service as meeting the following criteria:

(A) The CWTD is causing more than de minimus negative economic impact to a commercial crop;

(B) Previous efforts to alleviate the damage through nonlethal methods have been ineffective; and

(C) There is a reasonable certainty that additional property losses will occur in the near future if a lethal control action is not implemented.

(iv) Commercial crop means commercially raised horticultural, agricultural, or forest products.

(v) State conservation agency means the State agency in Oregon or Washington operating a conservation program for CWTD pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Endangered Species Act.

(3) Allowable forms of take of CWTD. Take of CWTD resulting from the following legally conducted activities is allowed:

(i) Intentional harassment not likely to cause mortality. A State conservation agency may issue permits to landowners or their agents to harass CWTD on lands they own, rent, or lease if the State conservation agency determines in writing that such action is not likely to cause mortality of CWTD. The techniques employed in this harassment must occur only as specifically directed or restricted by the State permit in order to avoid causing CWTD mortality.

(ii) Take of problem CWTD resulting in mortality. Take of problem CWTD is authorized under the following circumstances:

(A) Any employee or agent of the Service or the State conservation agency, who is designated by their agency for such purposes, may, when acting in the course of their official duties, take problem CWTD. This take must occur in compliance with all other applicable Federal, State, and local laws and regulations.

(B) The State conservation agency may issue a permit to landowners or their agents to take problem CWTD on lands they own, rent, or lease. Such take must be implemented only as directed and allowed in the permit obtained from the State conservation agency.

(iii) Accidental take of CWTD when carrying out State-permitted black-tailed deer damage control. Take of CWTD in the course of carrying out black-tailed deer damage control will be a violation of this rule unless the taking was accidental; reasonable care was practiced to avoid such taking; and the person causing the take was in possession of a valid black-tailed deer damage control permit from a State conservation agency. When issuing black-tailed deer damage control permits, the State conservation agency will provide education regarding identification of target species. The exercise of reasonable care includes, but is not limited to, the review of the educational material provided by the State conservation agency and identification of the target before shooting.

(iv) Accidental take of CWTD when carrying out State-permitted black-tailed deer hunting. Take of CWTD in the course of hunting black-tailed deer will be a violation of this rule unless the take was accidental; the take was in the course of hunting black-tailed deer under a lawful State permit; and reasonable due care was exercised to avoid such taking. The State conservation agency will provide educational material to hunters regarding identification of target species when issuing hunting permits. The exercise of reasonable care includes, but is not limited to, the review of the educational materials provided by the State conservation agency and identification of the target before shooting.

(4) Take limits. The amount of take of CWTD allowed for the activities in paragraphs (i)(3)(ii), (iii), and (iv) of this section will not exceed 5 percent of the CWTD population during any calendar year, as determined by the Service. By December 31 of each year, the Service will use the most current annual DPS population estimate to set the maximum allowable take for these activities for the following calendar year. If take exceeds 2 percent of the DPS population in a given calendar year, the Service will convene a meeting with the Oregon Department of Fish and Wildlife and the Washington Department of Fish and Wildlife to discuss CWTD management and strategies to minimize further take from these activities for the rest of the year. If take exceeds 5 percent of the CWTD population in any given calendar year, no further take under paragraphs (i)(3)(ii), (iii), and (iv) will be allowed during that year and any further take that does occur may be subject to prosecution under the Endangered Species Act.

(5) Reporting and disposal requirements. Any injury or mortality of CWTD associated with the actions authorized under paragraphs (i)(3), (6), and (7) of this section must be reported to the Service within 72 hours, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service's Law Enforcement Office at (503) 231–6125, or the Service's Oregon Fish and Wildlife Office at (503) 231–6179. The Service may allow additional reasonable time for reporting if access to these offices is limited due to closure.

(6) Additional taking authorizations for Tribal employees, State and local law enforcement officers, and State-licensed wildlife rehabilitation facilities.

(i) Tribal employees and State and local government law enforcement officers. When acting in the course of their official duties, both Tribal employees designated by the Tribe for such purposes, and State and local government law enforcement officers working in the States of Oregon or Washington, may take CWTD for the following purposes:

(A) Aiding or euthanizing sick, injured, or orphaned CWTD;

(B) Disposing of a dead specimen; and

(ii) Such take must be reported to the Service within 72 hours, and specimens may be disposed of only in accordance with directions from the Service.

(7) Wildlife rehabilitation facilities licensed by the States of Oregon or Washington. When acting in the course of their official duties, a State-licensed wildlife rehabilitation facility may take CWTD for the purpose of aiding or euthanizing sick, injured, or orphaned CWTD. Such take must be reported to the Service within 72 hours as required by paragraph (i)(5) of this section, and specimens may be retained and disposed of only in accordance with directions from the Service.

(8) Take authorized by permits. Any person with a valid permit issued by the Service under § 17.32 may take CWTD, pursuant to the special terms and conditions of the permit.

(j) Argali (Ovis ammon) in Kyrgyzstan, Mongolia, and Tajikistan.

(1) Except as noted in paragraph (j)(2) of this section, all prohibitions of § 17.31 of this part and exemptions of § 17.32 of this part shall apply to this species in Kyrgyzstan, Mongolia, and Tajikistan

(Note. In all other parts of its range the argali is classified as endangered and covered by § 17.21).

(2) Upon receiving from the governments of Kyrgyzstan, Mongolia, and Tajikistan properly documented and verifiable certification that (i) argali populations in those countries are sufficiently large to sustain sport hunting, (ii) regulating authorities have the capacity to obtain sound data on these populations, (iii) regulating authorities recognize these populations as a valuable resource and have the legal and practical capacity to manage them as such, (iv) the habitat of these populations is secure, (v) regulating authorities can ensure that the involved trophies have in fact been legally taken from the specified populations, and (vi) funds derived from the involved sport hunting are applied primarily to argali conservation, the Director may, consistent with the purposes of the Act, authorize by publication of a notice in the Federal Register the importation of personal sport-hunted argali trophies, taken legally in Kyrgyzstan, Mongolia, and Tajikistan after the date of such notice, without a Threatened Species permit pursuant to § 17.32 of this part, provided that the applicable provisions of 50 CFR part 23 have been met.

(k) Canada lynx (Lynx canadensis).

(1) What lynx does this special rule apply to? The regulations in this paragraph (k) apply to all wild and captive lynx in the contiguous United States.

(2) What activities are prohibited for wild lynx? All prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to wild lynx found in the contiguous United States.

(3) What is considered a captive lynx?

(i) For purposes of this paragraph (k), captive lynx means lynx, whether alive or dead, and any part or product, if the specimen was in captivity at the time of the listing, born in captivity, or lawfully imported or transported into the contiguous United States.

(ii) Lynx that were either born or held in captivity and then released into the wild are considered wild.

(4) What activities are allowed for captive lynx?

(i) Take. You may take lawfully obtained captive lynx without a permit.

(ii) Import and export. You may export captive live lynx, parts or products of captive lynx provided the specimens are tagged with Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) export tags and/or accompanied by a valid CITES export permit. You may import lawfully obtained lynx that originated outside the United States when you follow the requirements of CITES.

(iii) Interstate commerce. You may deliver, receive, carry, transport, ship, sell, offer to sell, purchase, or offer to purchase in interstate commerce captive lynx and captive lynx parts and products in accordance with State or tribal laws and regulations. In addition, lynx pelts that are properly tagged with valid CITES export tags also qualify for this exemption on interstate commerce.

(5) Are any activities not allowed or restricted for captive lynx? You must comply with all applicable State and tribal laws and regulations. Violation of State or tribal law will also be a violation of the Act.

(l) Preble's meadow jumping mouse (Zapus hudsonius preblei).

(1) What is the definition of take? To harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect; or attempt to engage in any such conduct. Incidental take is that which occurs when it is incidental to and not the purpose of an otherwise lawful activity. Any take that is not authorized by permit provided through section 7 or section 10 of the Act or that is not covered by the exemptions described below is considered illegal take.

(2) When is take of Preble's meadow jumping mice allowed? Take of Preble's meadow jumping mice resulting from the following legally conducted activities, in certain circumstances as described below, is allowed:

(i) Take under permits. Any person with a valid permit issued by the Service under § 17.32 may take Preble's meadow jumping mice pursuant to the terms of the permit.

(ii) Rodent control. Preble's meadow jumping mice may be taken incidental to rodent control undertaken within 10 feet of or inside any structure. “Rodent control” includes control of mice and rats by trapping, capturing, or otherwise physically capturing or killing, or poisoning by any substance registered with the Environmental Protection Agency as required by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136) and applied consistent with its labeling. “Structure” includes but is not limited to any building, stable, grain silo, corral, barn, shed, water or sewage treatment equipment or facility, enclosed parking structure, shelter, gazebo, bandshell, or restroom complex.

(iii) Established, ongoing agricultural activities. Preble's meadow jumping mice may be taken incidental to agricultural activities, including grazing, plowing, seeding, cultivating, minor drainage, burning, mowing, and harvesting, as long as these activities are established, ongoing activities and do not increase impacts to or further encroach upon the Preble's meadow jumping mouse or its habitat. New agricultural activities or those that expand the footprint or intensity of the activity are not considered to be established, ongoing activities.

(iv) Maintenance and replacement of existing landscaping. Preble's meadow jumping mice may be taken incidental to the maintenance and replacement of any landscaping and related structures and improvements, as long as they are currently in place and no increase in impervious surfaces would result from their maintenance and improvement. Construction of new structures or improvements or expansion of the landscaping in a manner that increases impervious surfaces would not be considered maintenance and replacement of existing landscaping.

(v) Existing uses of water. Preble's meadow jumping mice may be taken incidentally as a result of existing uses of water associated with the exercise of perfected water rights pursuant to State law and interstate compacts and decrees. (A “perfected water right” is a right that has been put to beneficial use and has been permitted, decreed, or adjudicated pursuant to State law.) Increasing the use or altering the location of use of an existing water right would not be considered an existing use of water.

(vi) Noxious weed control. Preble's meadow jumping mice may be taken incidental to noxious weed control that is conducted in accordance with:

(A) Federal law, including Environmental Protection Agency label restrictions;

(B) Applicable State laws for noxious weed control;

(D) Herbicide application guidelines as prescribed by herbicide manufacturers; and

(E) Any future revisions to the authorities listed in paragraphs (l)(2)(vi)(A) through (D) of this section that apply to the herbicides proposed for use within the species' range.

(vii) Ditch maintenance activities. Preble's meadow jumping mice may be taken incidental to normal and customary ditch maintenance activities only if the activities:

(A) Result in the annual loss of no more than ¼ mile of riparian shrub habitat per linear mile of ditch, including burning of ditches that results in the annual loss of no more than ¼ mile of riparian shrub habitat per linear mile of ditch.

(B) Are performed within the historic footprint of the surface disturbance associated with ditches and related infrastructure, and

(1) Persons engaged in ditch maintenance activities shall avoid, to the maximum extent practicable, impacts to shrub vegetation. For example, if accessing the ditch for maintenance or repair activities from an area containing no shrubs is possible, then damage to adjacent shrub vegetation shall be avoided.

(2) Persons engaged in placement or sidecasting of silt and debris removed during ditch cleaning, vegetation or mulch from mowing or cutting, and other material from ditch maintenance shall, to the maximum extent practicable, avoid shrub habitat and at no time disturb more than ¼ mile of riparian shrub habitat per linear mile of ditch within any calendar year.

(3) To the maximum extent practicable, all ditch maintenance activities should be carried out during the Preble's hibernation season, November through April.

(D) All ditch maintenance activities carried out during the Preble's active season, May through October, should be conducted during daylight hours only.

(E) Ditch maintenance activities that would result in permanent or long-term loss of potential habitat that would not be considered normal or customary include replacement of existing infrastructure with components of substantially different materials and design, such as replacement of open ditches with pipeline or concrete-lined ditches, replacement of an existing gravel access road with a permanently paved road, or replacement of an earthen diversion structure with a rip-rap and concrete structure, and construction of new infrastructure or the movement of existing infrastructure to new locations, such as realignment of a ditch, building a new access road, or installation of new diversion works where none previously existed.

(3) When is take of Preble's not allowed?

(i) Any manner of take not described under paragraph (l)(2) of this section.

(ii) No person may import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any Preble's meadow jumping mice.

(iii) No person, except for an authorized person, may possess, sell, deliver, carry, transport, or ship any Preble's meadow jumping mice that have been taken illegally.

(4) Where does this rule apply? The take exemptions provided by this rule are applicable within the entire range of the Preble's meadow jumping mouse.

(m) Vicuña (Vicugna vicugna).

(1) What activities involving vicuña are prohibited by this rule?

(i) Appendix I populations. All provisions of § 17.31(a) and (b) and § 17.32 apply to vicuña and vicuña parts and products originating from populations currently listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

(ii) Import, export, and re-export. Except as provided in paragraph (m)(2) of this section, it is unlawful to import, export, or re-export, or present for export or re-export without valid permits as required under parts 17 and 23 of this subchapter, any vicuña or vicuña parts and products. For import of embryos, blood, other tissue samples, or live vicuña, permits required under § 17.32 and part 23 will be issued only for bona fide scientific research contributing to the conservation of the species in the wild.

(iii) Other activities. Except as provided in paragraph (m)(2) of this section, it is unlawful to sell or offer for sale, deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any vicuña or vicuña parts and products.

(iv) It is unlawful for any person subject to the jurisdiction of the United States to commit, attempt to commit, solicit to commit, or cause to be committed any acts described in paragraphs (m)(1)(ii)–(iii) of this section.

(2) What activities involving vicuña are allowed by this rule? You may import, export, or re-export, or conduct interstate or foreign commerce in raw wool sheared from live vicuñas, cloth made from such wool, or manufactured or handicraft products and articles made from or consisting of such wool or cloth without a threatened species permit issued according to

§ 17.32 only when the following provisions have been met:

(i) The specimens originated from a population listed in CITES Appendix II.

(ii) The provisions in parts 13, 14, and 23 of this subchapter are met, including the specific labeling provisions in part 23.

(iii) Personal and household effects. Under the provisions of this special rule, raw wool sheared from live vicuñas, cloth made from such wool, or manufactured or handicraft products and articles made from or consisting of such wool or cloth are not granted the personal or household effects exemption described in part 23 of this subchapter. In addition to the provisions of this paragraph (m)(2), such specimens may only be imported, exported, or re-exported when accompanied by a valid CITES document.

(iv) Labeling of wool sheared from live vicuñas. Any shipment of raw wool sheared from live vicuñas must be sealed with a tamper-proof seal and have the following:

(A) An identification tag with a code identifying the country of origin of the raw vicuña wool and the CITES export permit number; and

(B) The vicuña logotype as defined in 50 CFR part 23 and the words “VICUÑA—COUNTRY OF ORIGIN”, where country of origin is the name of the country from which the raw vicuña wool was first exported.

(v) At the time of import, the country of origin and each country of re-export involved in the trade of a particular shipment have not been identified by the CITES Conference of the Parties, the CITES Standing Committee, or in a Notification from the CITES Secretariat as a country from which Parties should not accept permits.

(3) When and how will the Service inform the public of additional restrictions in trade of vicuña? Except in rare cases involving extenuating circumstances that do not adversely affect the conservation of the species, we will issue a public bulletin that identifies a restriction on trade in specimens of vicuña addressed in this paragraph (m) if any of the following criteria are met:

(i) The country is identified in any action adopted by the Conference of the Parties to the Convention, the Convention's Standing Committee, or in a Notification issued by the CITES Secretariat, whereby Parties are asked not to accept shipments of specimens of any CITES-listed species from the country in question.

(ii) The Service's Division of Scientific Authority administratively determines that the conservation or management status of threatened vicuña populations in a range country has changed, such that continued recovery of the vicuña population in that country may be compromised, as a result of one or more of the following factors:

(A) A change in range country laws or regulations that lessens protection for vicuña;

(B) A change in range country management programs that lessens protection for vicuña;

(D) A documented increase in poaching of vicuña;

(E) A documented decline in vicuña habitat quality or quantity; or

(F) Other natural or man-made factors affecting the species' recovery.

(4) What must vicuña range countries do in order to be authorized under the special rule to export to the United States?

(i) Annual Report. Range country governments (Argentina, Bolivia, Chile, and Peru) wishing to export specimens of vicuña to the United States will need to provide an annual report containing the most recent information available on the status of the species, following the information guidelines specified below. The first submission of a status report will be required as of July 1, 2003, and every year thereafter on the anniversary of that date. For each range country, the following information should be provided in the annual report:

(A) A description of any revisions to the management program, especially any changes in management approaches or emphasis;

(B) New information obtained in the last year on vicuña distribution, population status, or population trends, for the country as a whole or for specific protected areas, and a detailed description of the methodology used to obtain such information;

(C) Results of any research projects concluded in the last year on the biology of vicuña in the wild, particularly its population biology, habitat use, and genetics, and a description of any new research projects undertaken on the biology of vicuña in the wild, particularly its population biology, habitat use, and genetics;

(D) A description of any changes to national and/or provincial laws and programs relating to vicuña conservation, in particular those laws and regulations related to harvest and use of the vicuña, and export of vicuña parts and products;

(E) A description of any changes in the number or size of natural reserves or national parks that provide protected habitat for the vicuña;

(F) A summary of law enforcement activities undertaken in the last year, and a description of any changes in programs to prevent poaching, smuggling, and illegal commercialization of the vicuña;

(G) A description of the current management and harvest (or “sustainable use”) programs for wild populations of the vicuña, including: any changes in the location and population size of wild populations being managed for sustainable use; any changes in the harvest management practices being used for each population; any changes in current harvest quotas for wild populations, if any; any changes in protocols for translocations undertaken as part of the use program; a summary of the specific financial costs of and revenues generated by the sustainable use program over the last year; and a summary of documented conservation benefits resulting from the sustainable use program over the last year;

(H) A description of current management and harvest (or “sustainable use”) programs for captive and so-called “semi-captive” populations of the vicuña, including: any changes in the number and location of all captive and “semi-captive” populations; any changes in the size (ha) of each captive enclosure and the number of vicuña maintained therein; any changes in protocols for translocations undertaken as part of the use program; a summary of the financial costs of and revenues generated by the sustainable use program over the last year; and documented conservation benefits resulting from the sustainable use program over the last year (information on captive and “semi-captive” populations must be separate from that provided for wild populations); and

(I) Export data for the last year.

(ii) The Service's Division of Scientific Authority will conduct a review every 2 years, using information in the annual reports, to determine whether range country management programs are effectively achieving conservation benefits for the vicuña. Failure to submit an annual report could result in a restriction on trade in specimens of vicuña as addressed in paragraph

(m)(3) of this section. Based on information contained in the annual reports and any other pertinent information it has available, the Service may restrict trade from a range country, as addressed in paragraph (m)(3) of this section, if it determines that the conservation or management status of threatened vicuña populations in a range country has changed, such that continued recovery of the vicuña population in that country may be compromised. Trade restrictions may result from one or more of the following factors:

(A) A change in range country laws or regulations that lessens protection for vicuña;

(B) A change in range country management programs that lessens protection for vicuña;

(D) A documented increase in poaching of vicuña;

(E) A documented decline in vicuña habitat quality or quantity; or

(F) Other natural or man-made factors affecting the species' recovery.

(n) Straight-horned markhor (Capra falconeri megaceros).

(1) General requirements. Except as noted in paragraph (n)(2) of this section, all prohibitions of § 17.31 and exemptions of § 17.32 apply to this subspecies.

(2) What are the criteria under which a personal sport-hunted trophy may qualify for import without a permit under § 17.32? The Director may, consistent with the purposes of the Act, authorize by publication of a notice in the Federal Register the importation, without a threatened species permit issued under § 17.32, of personal sport-hunted straight-horned markhor from an established conservation program that meets the following criteria:

(i) The markhor was taken legally from the established program after the date of the Federal Register notice;

(ii) The applicable provisions of 50 CFR parts 13, 14, 17, and 23 have been met; and

(iii) The Director has received the following information regarding the established conservation program for straight-horned markhor:

(A) Populations of straight-horned markhor within the conservation program's areas can be shown to be sufficiently large to sustain sport hunting and are stable or increasing.

(B) Regulatory authorities have the capacity to obtain sound data on populations.

(C) The conservation program can demonstrate a benefit to both the communities surrounding or within the area managed by the conservation program and the species, and the funds derived from sport hunting are applied toward benefits to the community and the species.

(D) Regulatory authorities have the legal and practical capacity to provide for the long-term survival of the populations.

(E) Regulatory authorities can determine that the sport-hunted trophies have in fact been legally taken from the populations under an established conservation program.

(o) [Reserved by 87 FR 73504]

(p) Northern sea otter (Enhydra lutris kenyoni).

(1) To what population of sea otter does this special rule apply? The regulations in paragraph (p) of this section apply to the southwest Alaska distinct population segment (DPS) of the northern sea otter as set forth at § 17.11(h) of this part.

(2) What provisions apply to this DPS? Except as noted in paragraph (p)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the southwest Alaska DPS of the northern sea otter.

(3) What additional activities are allowed for this DPS? In addition to the activities authorized under paragraph (p)(2) of this section, you may conduct any activity authorized or exempted under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.) with a part or product of a southwest Alaska DPS northern sea otter, provided that:

(i) The product qualifies as an authentic native article of handicrafts or clothing as defined in § 17.3 of this part; and

(A) It was created by an Indian, Aleut, or Eskimo who is an Alaskan Native, and

(B) It is not being exported or imported for commercial purposes; or

(ii) The part or product is owned by an Indian, Aleut, or Eskimo who is an Alaskan Native and resides in Alaska, or by a Native inhabitant of Russia, Canada, or Greenland, and is part of a cultural exchange; or

(iii) The product is owned by a Native inhabitant of Russia, Canada, or Greenland, and is in conjunction with travel for noncommercial purposes; or

(iv) The part or product has been received or acquired by a person registered as an agent or tannery under § 18.23 of this subchapter.

(4) What other wildlife regulations may apply? All applicable provisions of 50 CFR parts 14, 18, and 23 must be met.

(q) Polar bear (Ursus maritimus).

(1) Except as noted in paragraphs (q)(2) and (4) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the polar bear.

(2) None of the prohibitions in § 17.31 of this part apply to any activity that is authorized or exempted under the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (27 U.S.T. 1087), or both, provided that the person carrying out the activity has complied with all terms and conditions that apply to that activity under the provisions of the MMPA and CITES and their implementing regulations.

(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must be met.

(4) None of the prohibitions in § 17.31of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear.

(r) Lion (Panthera leo melanochaita).

(1) General requirements. All prohibitions and provisions of §§ 17.31 and 17.32 apply to this subspecies.

(2) The import exemption found in § 17.8 for threatened wildlife listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) does not apply to this subspecies. A threatened species import permit under § 17.32 is required for the importation of all specimens of Panthera leo melanochaita.

(3) All applicable provisions of 50 CFR parts 13, 14, 17, and 23 must be met.

(s) Pacific marten (Martes caurina), Coastal DPS.

(1) Prohibitions. Except as provided in paragraph (s)(2) of this section, all prohibitions and provisions of section 9(a)(1) of the Act apply to the Coastal DPS of the Pacific marten.

(2) Exceptions from prohibitions. In regard to the Coastal DPS of the Pacific marten (“coastal marten”), you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Conduct forest management activities for the purposes of reducing the risk or severity of wildfire, which include fuels reduction projects, firebreaks, and wildfire firefighting activities. More specifically, forest management practices such as those that treat vertical and horizontal (ladder) fuels in an effort to reduce continuity between understory and the overstory vegetation and the potential for crown fires, remove fuels within 150 feet of legally permitted structures and within 300 feet of habitable structures, or implement Fuelbreak/Defensible Space Prescriptions that allow for removal of trees or other vegetation to create a shaded fuelbreak along roads or other natural features, or create defensible space.

(v) Conduct forestry management activities included in a plan or agreement for lands covered by a Natural Communities Conservation Plan or State Safe Harbor Agreement that addresses and authorizes State take of coastal marten as a covered species and is approved by the California Department of Fish and Wildlife under the authority of the California Endangered Species Act.

(vi) Conduct forestry management activities consistent with the conservation needs of the coastal marten (e.g., activities that promote, retain, or restore suitable coastal marten habitat that increase percent canopy cover, percent ericaceous shrub cover, and denning and resting structures). These include activities consistent with finalized conservation plans or strategies, such as plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with conservation strategies for coastal marten.

(vii) Conduct activities to remove toxicants and other chemicals consistent with conservation strategies for coastal marten. Such activities include management or cleanup activities that remove toxicants and other chemicals from forested areas, for which the Service has determined that such activities to remove toxicants and other chemicals would be consistent with conservation strategies for coastal marten. Cleanup of these sites may involve activities that may cause localized, short-term disturbance to coastal martens, as well as require limited removal of some habitat structures valuable to coastal martens (e.g., hazard trees that may be a suitable den site).

(t) Stephens' kangaroo rat (Dipodomys stephensi).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to Stephens' kangaroo rat. Except as provided under paragraph (t)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In regard to Stephens' kangaroo rat, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.

(iii) Take, as set forth at § 17.31(b).

(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(v) Implement livestock grazing in the course of habitat management and restoration to benefit Stephens' kangaroo rat or other native species in the grassland habitat as approved by the Service.

(vi) Conduct the following wildfire suppression activities:

(A) Activities necessary to maintain the minimum clearance (defensible space) requirement from any occupied dwelling, occupied structure, or to the property line, whichever is nearer, to provide reasonable fire safety and to reduce wildfire risks consistent with the State of California fire codes or local fire codes/ordinances.

(B) Fire management actions (e.g., prescribed burns, hazardous fuel reduction activities) on protected/preserve lands to maintain, protect, or enhance habitat occupied by Stephens' kangaroo rat. These activities are to be coordinated with and reported to the Service in writing and approved the first time an individual or agency undertakes them.

(D) Firefighting activities associated with actively burning wildfires to reduce risk to life or property.

(vii) Remove nonnative, invasive, or noxious plants for the purpose of Stephens' kangaroo rat conservation as approved by the Service. This includes noxious weed control and other vegetation reduction in the course of habitat management and restoration to benefit Stephens' kangaroo rat, including mechanical and chemical control, provided that these activities are conducted in a manner consistent with Federal and applicable State laws, including Environmental Protection Agency label restrictions for herbicide application.

(viii) Implement activities conducted as part of a plan developed in coordination with the Service or the California Department of Fish and Wildlife that are for the purpose of Stephens' kangaroo rat conservation.

Credits
[40 FR 44415, Sept. 26, 1975, as amended at 40 FR 53400, Nov. 18, 1975; 41 FR 19226, May 11, 1976; 41 FR 45994, Oct. 19, 1976; 43 FR 9612, Mar. 9, 1978; 43 FR 20504, May 12, 1978; 46 FR 23938, Apr. 29, 1981; 47 FR 4211, Jan. 28, 1982; 47 FR 30787, July 15, 1982; 47 FR 31387, July 20, 1982; 48 FR 34761, Aug. 1, 1983, 48 FR 36265, Aug. 10, 1983; 49 FR 22334, May 29, 1984; 50 FR 35088, Aug. 29, 1985; 50 FR 50793, Dec. 12, 1985; 51 FR 33759, Sept. 23, 1986; 55 FR 9135, March 12, 1990; 56 FR 27443, June 14, 1991; 56 FR 40267, Aug. 14, 1991; 57 FR 594, Jan. 7, 1992; 57 FR 28024, June 23, 1992; 57 FR 35486, Aug. 10, 1992; 57 FR 37478, Aug. 19, 1992; 60 FR 12906, March 9, 1995; 65 FR 16085, March 24, 2000; 66 FR 28130, May 22, 2001; 67 FR 37721, May 30, 2002; 67 FR 61536, Oct. 1, 2002; 68 FR 15872, April 1, 2003; 68 FR 17428, April 9, 2003; 69 FR 29105, May 20, 2004; 70 FR 3493, Jan. 25, 2005; 70 FR 15781, March 29, 2005; 71 FR 46870, Aug. 15, 2006; 72 FR 6103, Feb. 8, 2007; 73 FR 28318, May 15, 2008; 73 FR 39838, July 10, 2008; 73 FR 75358, Dec. 11, 2008; 73 FR 76269, Dec. 16, 2008; 74 FR 15123, April 2, 2009; 74 FR 47486, Sept. 16, 2009; 75 FR 14497, March 26, 2010; 76 FR 47491, Aug. 5, 2011; 76 FR 81726, Dec. 28, 2011; 77 FR 4493, Jan. 30, 2012; 77 FR 46182, Aug. 2, 2012; 78 FR 11788, Feb. 20, 2013; 79 FR 19795, April 9, 2014; 79 FR 30418, May 27, 2014; 79 FR 60378, Oct. 7, 2014; 80 FR 9221, Feb. 20, 2015; 80 FR 18032, April 2, 2015; 80 FR 34524, June 16, 2015; 80 FR 80056, Dec. 23, 2015; 81 FR 1921, Jan. 14, 2016; 81 FR 13171, March 11, 2016; 81 FR 36417, June 6, 2016; 81 FR 71409, Oct. 17, 2016; 82 FR 42044, Sept. 6, 2017; 85 FR 63830, Oct. 8, 2020; 85 FR 69895, Nov. 3, 2020; 87 FR 8980, Feb. 17, 2022; 87 FR 73504, Nov. 30, 2022; 88 FR 4908, Jan. 26, 2023]

AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.

§ 17.41 Special rules--birds.

(a) Streaked horned lark (Eremophila alpestris strigata).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to streaked horned lark. Except as provided under paragraph (a)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife, and (c)(6) and (7) for endangered migratory birds.

(iii) Take, as set forth at § 17.31(b).

(iv) Take incidental to an otherwise lawful activity caused by:

(A) The management of hazardous wildlife at airport facilities by airport staff or employees contracted by the airport to perform hazardous wildlife management activities. Hazardous wildlife is defined by the Federal Aviation Administration as species of wildlife, including feral animals and domesticated animals not under control, that are associated with aircraft strike problems, are capable of causing structural damage to airport facilities, or act as attractants to other wildlife that pose a strike hazard. Routine management activities include, but are not limited to, the following:

(1) Hazing of hazardous wildlife;

(2) Habitat modification and management of sources of forage, water, and shelter to reduce the attractiveness of the area around the airport for hazardous wildlife. This exception for habitat modification and management includes control and management of vegetation (grass, weeds, shrubs, and trees) through mowing, discing, herbicide application, or burning; and

(3) Routine management, repair, and maintenance of roads and runways (does not include upgrades or construction of new roads or runways).

(B) Accidental aircraft strikes at airports on non–Federal lands.

(C) Agricultural (farming) practices implemented on farms in accordance with State laws on non–Federal lands in Washington and Oregon.

(1) For the purposes of this rule, farm means any facility, including land, buildings, watercourses and appurtenances, used in the commercial production of crops, nursery stock, livestock, poultry, livestock products, poultry products, vermiculture products, or the propagation and raising of nursery stock.

(2) For the purposes of this rule, an agricultural (farming) practice means a mode of operation on a farm that is or may be used on a farm of a similar nature; is a generally accepted, reasonable, and prudent method for the operation of the farm to obtain a profit in money; is or may become a generally accepted, reasonable, and prudent method in conjunction with farm use; complies with applicable State laws; and is done in a reasonable and prudent manner. Common agricultural (farming) practices include, but are not limited to, the following activities:

(i) Planting, harvesting, rotation, mowing, tilling, discing, burning, and herbicide application to crops;

(ii) Normal transportation activities, and repair and maintenance of unimproved farm roads (this exception does not include improvement or construction of new roads) and graveled margins of rural roads;

(iii) Livestock grazing according to normally acceptable and established levels;

(iv) Hazing of geese or predators; and

(v) Maintenance of irrigation and drainage systems.

(D) Removal or other management of noxious weeds. Routine removal or other management of noxious weeds are limited to the following, and must be conducted in such a way that impacts to non-target plants are avoided to the maximum extent practicable:

(1) Mowing;

(2) Herbicide and fungicide application;

(3) Fumigation; and

(4) Burning.

(E) Habitat restoration actions. Habitat restoration and enhancement activities for the conservation of streaked horned lark may include activities consistent with formal approved conservation plans or strategies, such as Federal, Tribal, or State plans that include streaked horned lark conservation prescriptions or compliance, which the Service has determined (on a case-by-case basis) would be consistent with this rule.

(v) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) through (d)(4).

(b) Coastal California gnatcatcher (Polioptila californica californica).

(1) Except as noted in paragraphs (b)(2) and (3) of this section, all prohibitions of § 17.31 (a) and (b) shall apply to the coastal California gnatcatcher.

(2) Incidental take of the coastal California gnatcatcher will not be considered a violation of section 9 of the Endangered Species Act of 1973, as amended (Act), if it results from activities conducted pursuant to the State of California's Natural Community Conservation Planning Act of 1991 (NCCP), and in accordance with a NCCP plan for the protection of coastal sage scrub habitat, prepared consistent with the State's NCCP Conservation and Process Guidelines, provided that:

(i) The NCCP plan has been prepared, approved, and implemented pursuant to California Fish and Game Code sections 2800–2840; and

(ii) The Fish and Wildlife Service (Service) has issued written concurrence that the NCCP plan meets the standards set forth in 50 CFR 17.32(b)(2). The Service shall issue its concurrence pursuant to the provisions of the Memorandum of Understanding (MOU), dated December 4, 1991, between the California Department of Fish and Game and the Service regarding coastal sage scrub natural community conservation planning in southern California. (Copies of the State's NCCP Conservation and Process Guidelines and the MOU are available from the U.S. Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue West, Carlsbad, CA 92008.) The Service shall monitor the implementation of the NCCP plan and may revoke its concurrence under this paragraph (b)(2)(ii) if the NCCP plan, as implemented, fails to adhere to the standards set forth in 50 CFR 17.32(b)(2).

(3) During the period that a NCCP plan referred to in paragraph (b)(2) of this section is being prepared, incidental take of the coastal California gnatcatcher will not be a violation of section 9 of the Act if such take occurs within an area under the jurisdiction of a local government agency that is enrolled and actively engaged in the preparation of such a plan and such take results from activities conducted in accordance with the NCCP Conservation Guidelines and Process Guidelines.

(4) The Service will monitor the implementation of the NCCP Conservation and Process Guidelines as a whole, and will conduct a review every 6 months to determine whether the guidelines, as implemented, are effective in progressing toward or meeting regional and subregional conservation objectives during the interim planning period. If the Service determines that the guidelines are not effecting adequate progress toward or meeting regional and subregional conservation objectives, the Service will consult with the California Department of Fish and Game pursuant to the MOU to seek appropriate modification of the guidelines or their application as defined therein. If appropriate modification of the guidelines or their application as defined therein does not occur, the Service may revoke the interim take provisions of this special rule on a subregional or subarea basis. The Service will publish the findings for revocation in the Federal Register and provide for a 30–day public comment period prior to the effective date for revoking the provisions of the special rule in a particular area. Revocation would result in the reinstatement of the take prohibitions set forth under 50 CFR 17.31(a) and (b) in the affected NCCP area.

(c) The following species in the parrot family: Salmon-crested cockatoo (Cacatua moluccensis), yellow-billed parrot (Amazona collaria), white cockatoo (Cacatua alba), hyacinth macaw (Anodorhynchus hyacinthinus), scarlet macaw (Ara macao macao and scarlet macaw subspecies crosses (Ara macao macao and Ara macao cyanoptera)), and golden conure (Guaruba guarouba).

(1) Except as noted in paragraphs (c)(2) and (c)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.

(2) Import and export. You may import or export a specimen without a permit issued under § 17.32 of this part only when the provisions of parts 13, 14, 15, and 23 of this chapter have been met and you meet the following requirements:

(i) Captive-bred specimens: The source code on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) document accompanying the specimen must be “F” (captive born), “C” (bred in captivity), or “D” (bred in captivity for commercial purposes) (see 50 CFR 23.24); or

(ii) Specimens held in captivity prior to certain dates: You must provide documentation to demonstrate that the specimen was held in captivity prior to the applicable date specified in paragraph (c)(2)(ii)(A), (B), (C), (D), (E), or (F) of this section. Such documentation may include copies of receipts, accession or veterinary records, CITES documents, or wildlife declaration forms, which must be dated prior to the specified dates.

(A) For salmon-crested cockatoos: January 18, 1990 (the date this species was transferred to CITES Appendix I).

(B) For yellow-billed parrots: April 11, 2013 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(C) For white cockatoos: July 24, 2014 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(D) For hyacinth macaws: September 12, 2018 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(E) For scarlet macaws: March 28, 2019 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(F) For golden conures: July 1, 1975 (the date CITES entered into force with the “golden parakeet” (i.e., the golden conure) listed in Appendix I of the Convention).

(3) Interstate commerce. Except where use after import is restricted under § 23.55 of this chapter, you may deliver, receive, carry, transport, or ship in interstate commerce and in the course of a commercial activity, or sell or offer to sell, in interstate commerce the species listed in this paragraph (c) without a permit under the Act.

(d) Hawaiian goose (Branta sandvicensis) (nene).

(1) Definitions. For the purposes of this paragraph (d):

(i) Nene means the Hawaiian goose (Branta sandvicensis).

(ii) Intentional harassment means an intentional act that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns, which include, but are not limited to, breeding, feeding, or sheltering. Intentional harassment may include prior purposeful actions to attract, track, wait for, or search out nene, or purposeful actions to deter nene.

(iii) Person means a person as defined by section 3(13) of the Act.

(iv) Qualified biologist means an individual with a combination of academic training in the area of wildlife biology or related discipline and demonstrated field experience in the identification and life history of nene.

(2) Prohibitions. The following prohibitions apply to the nene except as provided under paragraph (d)(3) of this section and §§ 17.4 through 17.6:

(i) Import or export as provided in § 17.21(b).

(ii) Take as provided in § 17.21(c)(1).

(iii) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(1).

(iv) Interstate or foreign commerce in the course of commercial activity as provided in § 17.21(e).

(v) Sale or offer for sale as provided in § 17.21(f).

(vi) Attempt to commit, solicit another to commit, or to cause to be committed, any of the acts described in paragraphs (d)(2)(i) through (v) of this section.

(3) Exceptions from prohibitions. The following exceptions from prohibitions apply to the nene:

(i) Authorization provided under § 17.32.

(ii) Take as provided in § 17.21(c)(2) through (7). However, § 17.21(c)(5)(i) through (iv) does not apply.

(iii) Take incidental to an otherwise lawful activity caused by:

(A) Intentional harassment of nene that is not likely to cause direct injury or mortality. A person may harass nene on lands they own, rent, or lease, if the action is not likely to cause direct injury or mortality of nene. Techniques for such harassment may include the use of predator effigies (including raptor kites, predator replicas, etc.), commercial chemical bird repellents, ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with trained or tethered dogs, or access control (including netting, fencing, etc.). Nene may also be harassed in the course of surveys that benefit and further the recovery of nene. Such harassment techniques must avoid causing direct injury or mortality to nene. Before implementation of any such intentional harassment activities during the nene breeding season (September through April), a qualified biologist knowledgeable about the nesting behavior of nene must survey in and around the area to determine whether a nest or goslings are present. If a nest is discovered, the Service and authorized State wildlife officials must be notified within 72 hours (see paragraph (d)(4) of this section for contact information) and the following measures implemented to avoid disturbance of nests and broods:

(1) No disruptive activities may occur within a 100–foot (30–meter) buffer around all active nests and broods until the goslings have fledged;

(2) Brooding adults (i.e., adults with an active nest or goslings) or adults in molt may not be subject to intentional harassment at any time; and

(3) The landowner must arrange follow-up surveys of the property by qualified biologists to assess the status of birds present.

(B) Nonnative predator control or habitat management activities. A person may incidentally take nene in the course of carrying out nonnative predator control or habitat management activities for nene conservation purposes if reasonable care is practiced to minimize effects to the nene.

(1) Nonnative predator control activities for the conservation of nene include use of fencing, trapping, shooting, and toxicants to control predators, and related activities such as performing efficacy surveys, trap checks, and maintenance duties. Reasonable care for predator control activities may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on predator control methods and protocols prior to application of methods; compliance with all State and Federal regulations and guidelines for application of predator control methods; and judicious use of methods and tool adaptations to reduce the likelihood of nene ingesting bait, interacting with mechanical devices, or being injured or dying from interaction with mechanical devices.

(2) Habitat management activities for the conservation of nene include: Mowing, weeding, fertilizing, herbicide application, and irrigating existing pasture areas for conservation purposes; planting native food resources; providing watering areas, such as water units or ponds or catchments, designed to be safe for goslings and flightless/molting adults; providing temporary supplemental feeding and watering stations when appropriate, such as under poor quality forage or extreme conditions (e.g., drought or fire); if mechanical mowing of pastures for conservation management purposes is not feasible, alternate methods of keeping grass short, such as grazing; and large-scale restoration of native habitat (e.g., feral ungulate control, fencing). Reasonable care for habitat management may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities, and best efforts to minimize nene exposure to hazards (e.g., predation, habituation to feeding, entanglement, and vehicle collisions).

(C) Actions carried out by law enforcement officers in the course of official law enforcement duties. When acting in the course of their official duties, State and local government law enforcement officers, working in conjunction with authorized wildlife biologists and wildlife rehabilitators in the State of Hawaii, may take nene for the following purposes:

(1) Aiding or euthanizing sick, injured, or orphaned nene;

(2) Disposing of a dead specimen; or

(3) Salvaging a dead specimen that may be used for scientific study; or

(4) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(2) through (4)).

(4) Reporting and disposal requirements. Any injury or mortality of nene associated with the actions excepted under paragraphs (d)(3)(iii)(A) through (C) of this section must be reported to the Service and authorized State wildlife officials within 72 hours, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service's Office of Law Enforcement at (808) 861–8525, or the Service's Pacific Islands Fish and Wildlife Office at (808) 792–9400. The State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife may be contacted at (808) 587–0166. The Service may allow additional reasonable time for reporting if access to these offices is limited due to closure.

(e) Elfin-woods warbler (Setophaga angelae).

(1) Prohibitions. Except as noted in paragraph (e)(2) of this section, all prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to the elfin-woods warbler.

(2) Exemptions from prohibitions. Incidental take of the elfin-woods warbler will not be considered a violation of section 9 of the Act if the take results from any of the following when conducted within habitats currently occupied by the elfin-woods warbler provided these activities abide by the conservation measures set forth in this paragraph (e) and are conducted in accordance with applicable State, Federal, and local laws and regulations:

(i) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (i.e., removal of invasive, exotic, and feral species; shade and coffee tree seasonal pruning; shade and coffee tree planting and replacement; coffee bean harvest by hands-on methods; and the use of standard pest control methods and fertilizers within the plantations) of shade-grown coffee plantations and native forests associated with this type of crop. To minimize disturbance to the elfin-woods warbler, shade and coffee tree seasonal pruning must be conducted between September 1 and February 28, which is the time period outside the peak of the elfin-woods warbler's breeding season. The Service considers the use of pest control methods (e.g., pesticides, herbicides) and fertilizers “standard” when it is used only twice a year during the establishment period of shade and coffee trees (i.e., the first 2 years). Once the shade-grown coffee system reaches its functionality and structure (i.e., 3 to 4 years), little or no chemical fertilizers, herbicides, or pesticides may be used.

(ii) Riparian buffer establishment though the planting of native vegetation and selective removal of exotic species.

(iii) Reforestation and forested habitat enhancement projects within secondary forests (i.e., young and mature) that promote the establishment or improvement of habitat conditions for the species by the planting of native trees, selective removal of native and exotic trees, seasonal pruning of native and exotic trees, or a combination of these.

(f) Eastern black rail (Laterallus jamaicensis jamaicensis).

(1) Prohibitions. The following activities with the eastern black rail are prohibited:

(i) Purposeful take, including capture, handling, or other activities.

(ii) Incidental take resulting from the following activities:

(A) Prescribed burn activities, unless best management practices that minimize negative effects of the prescribed burn on the eastern black rail are employed. Best management practices include:

(1) Regardless of the size of the area under management with prescribed fire, a broad range of habitat conditions should be maintained by burning on a rotational basis, which supports black rail population maintenance and growth. In any given calendar year, at least 50 percent of the eastern black rail habitat within the management boundary should be maintained in order to provide the dense overhead cover required by the subspecies. Management boundaries can include individual landholdings, e.g., a National Wildlife Refuge boundary, or be formed through landscape-level agreements across landholdings of different but contiguous ownerships. This percentage does not apply to landholdings smaller than 640 acres.

(2) Where eastern black rail are present, the application of prescribed fire uses tactics that provide unburned refugia allowing birds to survive a fire (e.g., using short flanking, backing fires, or similar approaches). Prescribed fire is applied under fuel and weather conditions (e.g., soil moisture and/or relative humidity) that are most likely to result in patchy persistence of unburned habitat to serve as refugia from fire and predators.

(3) Ignition tactics, rates of spread, and flame lengths should allow for wildlife escape routes to avoid trapping birds in a fire. The application of prescribed fire should avoid fires, such as ring and strip head fires, that have long, unbroken boundaries and/or that come together in a short period of time and that consume essentially all vegetation and prevent black rails from escaping a fire. If aerial ignition is the chosen tool, ignitions should be conducted in such a way that large, fast-moving fires are avoided.

(B) Mowing, haying, and other mechanical treatment activities in persistent emergent wetlands when the activity occurs during the nesting or brooding periods, except in accordance with paragraph (f)(2)(iii) of this section.

(C) Grazing activities on public lands that occur on eastern black rail habitat and, that individually or cumulatively with other land management practices, do not maintain at least 50 percent of eastern black rail habitat, i.e., dense overhead cover, in any given calendar year within a management boundary.

(D) Long-term or permanent damage, fragmentation, or conversion of persistent emergent wetlands and the contiguous wetland-upland transition zone to other habitat types (such as open water) or land uses that do not support eastern black rail.

(iii) Possession and other acts with unlawfully taken eastern black rails. It is unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any eastern black rail that was taken in violation of section 9(a)(1)(B) and (C) of the Act or State laws.

(iv) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(v) Possess and conduct other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(vi) Engage in interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(vii) Sell or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions.

(i) All of the provisions of § 17.32 apply to the eastern black rail.

(ii) Any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program for the eastern black rail pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his agency for such purposes, may, when acting in the course of his official duties, take eastern black rails.

(iii) Incidental take resulting from haying, mowing, or other mechanical treatment activities in persistent emergent wetlands that occur during the nesting and brooding periods is allowed if those activities:

(A) Are maintenance requirements to ensure safety and operational needs, including maintaining existing infrastructure such as firebreaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures, and culverts); or

(B) Occur during the control of woody encroachment and other invasive plant species to restore degraded habitat.

(iv) Incidental take resulting from actions taken to control wildfires is allowed.

(v) Incidental take resulting from the establishment of new firebreaks (for example, to protect wildlands or manmade infrastructure) and new fence lines is allowed.

(vi) Incidental take resulting from prescribed burns, grazing, and mowing or other mechanical treatment activities in existing moist soil management units or prior converted croplands (e.g., impoundments for rice or other cereal grain production) is allowed.

(g) through (j) [Reserved]

(k) Lesser prairie-chicken (Tympanuchus pallidicinctus), Northern Distinct Population Segment (DPS). The Northern DPS of the lesser prairie-chicken pertains to lesser prairie-chickens found northeast of a line starting in Colorado at 37.9868 N, 105.0133 W, going through northeastern New Mexico, and ending in Texas at 31.7351 N, 98.3773 W, NAD83, as shown in the map:

Figure 1 to paragraph (k)

Image 1 within § 17.41 Special rules—birds.

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Northern DPS of the lesser prairie-chicken. Except as provided under paragraph (k)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of a commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit under § 17.32.

(ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(v) Take incidental to an otherwise lawful activity caused by:

(A) Continuation of routine agricultural practices on existing cultivated lands, including:

(1) Plowing, drilling, disking, mowing, or other mechanical manipulation and management of lands;

(2) Routine activities in direct support of cultivated agriculture, including replacement, upgrades, maintenance, and operation of existing infrastructure such as buildings, irrigation conveyance structures, fences, and roads; and

(3) Use of chemicals in direct support of cultivated agriculture when done in accordance with label recommendations.

(B) Implementation of prescribed fire for the purposes of grassland management, including:

(1) Construction and maintenance of fuel breaks;

(2) Planning needed for application of prescribed fire;

(3) Implementation of the fire and all associated actions; and

(4) Any necessary monitoring and followup actions.

(C) Implementation of prescribed grazing following a site-specific grazing management plan developed by a Service-approved party, including:

(1) Physical impact of cattle to vegetative composition and structure;

(2) Trampling of lesser prairie-chicken nests;

(3) Construction and maintenance of required infrastructure for grazing management, including but not limited to fences and water sources; and

(4) Other routine activities required to implement managed grazing, including but not limited to feeding, monitoring, and moving of livestock.

(l) [Reserved]

(m) Emperor penguin (Aptenodytes forsteri).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the emperor penguin. Except as provided under paragraph (m)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species:

(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.

(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.

(v) Sale or offer for sale in foreign commerce, as set forth at § 17.21(f) for endangered wildlife.

(vi) Sale or offer for sale in interstate commerce, as set forth at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In regard to the emperor penguin, you may:

(i) Sell, offer for sale, deliver, receive, carry, transport, or ship in interstate commerce live emperor penguins from one public institution to another public institution. For the purposes of this paragraph, “public institution” means a museum, zoological park, and scientific or educational institution that meets the definition of “public” at 50 CFR 10.12.

(ii) Take emperor penguins within Antarctica as authorized under implementing regulations for the Antarctic Conservation Act of 1978 (16 U.S.C. 2401 et seq.), either in accordance with the provisions set forth at 45 CFR 670.5 or 670.9, or as authorized by a permit under 45 CFR part 670.

(iii) Import emperor penguins into the United States from Antarctica or export emperor penguins from the United States to Antarctica as authorized under implementing regulations for the Antarctic Conservation Act of 1978 (16 U.S.C. 2401 et seq.), either in accordance with the provisions set forth at 45 CFR 670.9, or as authorized by a permit under 45 CFR part 670.

(iv) Conduct activities as authorized by a permit under § 17.32.

(v) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.

(vi) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(vii) Conduct activities as authorized by a captive-bred wildlife registration under § 17.21(g) for endangered wildlife.

Credits
[43 FR 6233, Feb. 14, 1978; 58 FR 65095, Dec. 10, 1993; 60 FR 36010, July 12, 1995; 72 FR 37372, July 9, 2007; 73 FR 23970, May 1, 2008; 76 FR 30780, May 26, 2011; 76 FR 54713, Sept. 2, 2011; 78 FR 15641, March 12, 2013; 78 FR 61502, Oct. 3, 2013; 79 FR 20084, April 10, 2014; 79 FR 35900, June 24, 2014; 81 FR 40547, June 22, 2016; 81 FR 47048, July 20, 2016; 83 FR 39916, Aug. 13, 2018; 84 FR 6311, Feb. 26, 2019; 84 FR 69946, Dec. 19, 2019; 85 FR 22663, April 23, 2020; 85 FR 63802, Oct. 8, 2020; 87 FR 21811, April 13, 2022; 87 FR 64720, Oct. 26, 2022; 87 FR 72753, Nov. 25, 2022; 87 FR 73971, Dec. 2, 2022; 88 FR 4087, Jan. 24, 2023]

AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.

§ 17.42 Special rules--reptiles.

(a) American alligator (Alligator mississippiensis)—

(1) Definitions. For purposes of this paragraph (a) the following definitions apply:

(i) American alligator means any specimen of the species Alligator mississippiensis, whether alive or dead, including any skin, part, product, egg, or offspring thereof held in captivity or from the wild.

(ii) The definitions of crocodilian skins and crocodilian parts in § 23.70(b) of this subchapter apply to this paragraph (a).

(2) Taking. No person may take any American alligator, except:

(i) Any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, take an American alligator.

(ii) Any person may take an American alligator in the wild, or one which was born in captivity or lawfully placed in captivity, and may deliver, receive, carry, transport, ship, sell, offer to sell, purchase, or offer to purchase such alligator in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity in accordance with the laws and regulations of the State of taking subject to the following conditions:

(A) Any skin of an American alligator may be sold or otherwise transferred only if the State or Tribe of taking requires skins to be tagged by State or tribal officials or under State or tribal supervision with a Service-approved tag in accordance with the requirements in part 23 of this subchapter; and

(B) Any American alligator specimen may be sold or otherwise transferred only in accordance with the laws and regulations of the State or Tribe in which the taking occurs and the State or Tribe in which the sale or transfer occurs.

(3) Import and export. Any person may import or export an American alligator specimen provided that it is in accordance with part 23 of this subchapter.

(4) Recordkeeping.

(i) Any person not holding an import/export license issued by the Service under part 14 of this subchapter and who imports, exports, or obtains permits under part 23 of this subchapter for the import or export of American alligator shall keep such records as are otherwise required to be maintained by all import/export licensees under part 14 of this subchapter. Such records shall be maintained as in the normal course of business, reproducible in the English language, and retained for 5 years from the date of each transaction.

(ii) Subject to applicable limitations of law, duly authorized officers at all reasonable times shall, upon notice, be afforded access to examine such records required to be kept under paragraph (a)(4)(i) of this section, and an opportunity to copy such records.

(b) Green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta caretta), olive ridley sea turtle(Lepidochelys olivacea)(these do not include the populations listed as endangered in § 17.11).

(1) Prohibitions. Subject to the permits allowable under the following paragraph (b)(2) of this section, all of the provisions set forth in § 17.31 (which incorporate portions of § 17.21) shall apply to this wildlife with the following exceptions:

(i) Section 17.21(c)(2)(self-defense) is not applicable.

(ii) In § 17.21(c)(3)(i), the word “orphaned” is replaced by the word “stranded.”

(iii) Delete § 17.21(c)(3)(iv) (Wildlife threatening human safety).

(iv) [Reserved]

(v) The prohibition against taking shall not apply to incidental catches, as specified in 50 CFR 227.72(e).

(vi) The prohibition against taking within the United States or the territorial sea of the United States shall not apply to subsistence taking, as specified in 50 CFR 227.72(f).

(2) Permits.

(i) For those activities which come under the jurisdiction of the Service, only permits for scientific purposes, enhancement of propagation or survival, zoological exhibition or educational purposes, are available under § 17.32. Procedures for issuance of permits are found in § 17.32 and, for those activities which come under the jurisdiction of the National Marine Fisheries Service, subpart E of part 220. All the provisions of § 17.32 apply to permits issued by the Service.

(1) What are the definitions of terms used in this paragraph (c)?

(i) Threatened crocodilian means any live or dead specimen of the following species:

(A) Broad-snouted caiman (Caiman latirostris) originating in Argentina;

(B) Brown caiman (Caiman crocodilus fuscus, including Caiman crocodilus chiapasius);

(D) Yacare caiman (Caiman yacare);

(E) Nile crocodile (Crocodylus niloticus); and

(F) Saltwater crocodile (Crocodylus porosus) originating in Australia (also referred to as Australian saltwater crocodile).

(ii) The definitions of crocodilian skins and crocodilian parts in § 23.70(b) and re-export in § 23.5 of this subchapter apply to this paragraph (c).

(2) What activities involving threatened crocodilians are prohibited by this rule?

(i) All provisions of §§ 17.31 and 17.32 apply to live specimens, including viable eggs, of all threatened crocodilians and to any specimen of the Appendix–I Nile crocodile.

(ii) Except as provided in paragraph (c)(2)(i) of this section, the following prohibitions apply to threatened crocodilians.

(A) Import, export, and re-export. Except as provided in paragraph (c)(3) of this section, it is unlawful to import, export, or re-export, or attempt to import, export, or re-export without valid permits as required under parts 17 and 23 of this subchapter any threatened crocodilians, including their skins, parts, and products.

(B) Commercial activity. Except as provided in paragraph (c)(3) of this section, it is unlawful, in the course of a commercial activity, to sell or offer for sale, deliver, receive, carry, transport, or ship in interstate or foreign commerce any threatened crocodilians, including their skins, parts, and products.

(C) It is unlawful for any person subject to the jurisdiction of the United States to commit, attempt to commit, solicit to commit, or cause to be committed any acts described in paragraphs (c)(2)(i) and (c)(2)(ii)(A) and (B) of this section.

(3) What activities involving threatened crocodilians are allowed by this rule? Except as provided in (c)(2)(i), you may import, export, or re-export, or sell or offer for sale, deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity, threatened crocodilian skins, parts, and products without a threatened species permit otherwise required under § 17.32 provided the requirements of parts 13, 14, and 23 of this subchapter and the requirements of paragraphs (c)(3) and (4) of this section have been met.

(i) Skins and parts. Except as provided in (c)(3)(ii) of this section, the import, export, or re-export of threatened crocodilian skins and crocodilian parts is allowed provided the following conditions are met:

(A) Each crocodilian skin and crocodilian part imported, exported, or re-exported must be tagged or labeled in accordance with § 23.70 of this subchapter.

(B) Any countries re-exporting crocodilian skins or parts must have implemented an administrative system for the effective matching of imports and re-exports.

(C) If a shipment contains more than 25 percent replacement tags, the U.S. Management Authority will consult with the Management Authority of the re-exporting country before clearing the shipment. Such shipments may be seized if we determine that the requirements of the Convention have not been met.

(D) The country of origin and any intermediary country(s) must be effectively implementing the Convention. If we receive persuasive information from the CITES Secretariat or other reliable sources that a specific country is not effectively implementing the Convention, we will prohibit or restrict imports from such country(s) as appropriate for the conservation of the species.

(ii) Meat, skulls, scientific specimens, products, and noncommercial personal or household effects. The tagging requirements in paragraph (c)(3)(i) of this section for skins and parts do not apply to the import, export, or re-export of threatened crocodilian meat, skulls, scientific specimens, or products or to the noncommercial import, export, or re-export of personal effects in accompanying baggage or household effects.

(4) When and how will the Service inform the public of additional restrictions in trade of threatened crocodilians? Except in rare cases involving extenuating circumstances that do not adversely affect the conservation of the species, the Service will issue an information bulletin (posted on our websites, http://www.fws.gov/le and http://www.fws.gov/international) announcing additional restrictions on trade of specimens of threatened crocodilians if any of the following criteria are met:

(i) The country is listed in a Notification to the Parties by the CITES Secretariat as not having designated Management and Scientific Authorities.

(ii) The country is identified in any action adopted by the Conference of the Parties to the Convention, the Standing Committee, or in a Notification issued by the CITES Secretariat, whereby Parties are asked not to accept shipments of specimens of any CITES species from the country in question or of any crocodilian species listed in the CITES Appendices.

(iii) We determine, based on information from the CITES Secretariat or other reliable sources, that the country is not effectively implementing the provisions of the Convention.

(5) Reporting requirements for yacare caiman range countries—

(i) Biennial reports. Range countries (Argentina, Bolivia, Brazil, and Paraguay) wishing to export specimens of yacare caiman to the United States for commercial purposes must provide a biennial report containing the most recent information available on the status of the species. The first submission of a status report will be required as of December 31, 2001, and every 2 years thereafter on the anniversary of that date. For each range country, all of the following information must be included in the report.

(A) Recent distribution and population data, and a description of the methodology used to obtain such estimates.

(B) Description of research projects currently being conducted related to the biology of the species in the wild, particularly reproductive biology (for example, age or size when animals become sexually mature, number of clutches per season, number of eggs per clutch, survival of eggs, survival of hatchlings).

(C) Description of laws and programs regulating harvest, including approximate acreage of land set aside as natural reserves or national parks that provide protected habitat for yacare caiman.

(D) Description of current sustainable harvest programs, including ranching (captive rearing of specimens collected from the wild as eggs or juveniles) and farming (captive-breeding) programs.

(E) Current harvest quotas for wild populations.

(F) Export data for the last 2 years. Information should be organized according to the source of specimens such as wild-caught, captive-reared, or captive-bred.

(ii) Review and restrictions. The U.S. Scientific Authority will conduct a review every 2 years, using information in the biennial reports and other available information, to determine whether range country management programs are effectively achieving conservation benefits for the yacare caiman. Based on the best available information, we may restrict trade from a range country if we determine that the conservation or management status of threatened yacare caiman populations has changed, such that continued recovery of the population in that country may be compromised. Trade restrictions, as addressed in paragraph (c)(4) of this section, may be implemented based on one or more of the following factors:

(A) Failure to submit the reports described above, or failure to respond to requests for additional information.

(B) A change in range country laws or regulations that lessens protection for yacare caiman.

(D) A documented decline in wild population numbers.

(E) A documented increase in poaching.

(F) A documented decline in habitat quality or quantity.

(G) Other natural or manmade factors affecting the species' recovery.

(d) Blue-tailed mole skink (Eumeces egregius lividus) and sand skink (Neoseps reynoldsi).

(1) No person shall take these species, except in accordance with applicable State fish and wildlife conservation laws and regulations for educational purposes, scientific purposes, the enhancement or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act.

(2) Any violation of applicable State fish and wildlife conservation laws or regulations with respect to taking of these species is also a violation of the Endangered Species Act.

(3) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means whatever, any such species taken in violation of applicable State fish and wildlife conservation laws or regulations.

(4) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in paragraph (c)(1) through (3) of this section.

(5) Taking of these species for purposes other than those described in paragraph (c)(1) of this section, including taking incidental to carrying out otherwise lawful activities, is prohibited except when permitted under §§ 17.23 and 17.32.

(e) Desert tortoise (Gopherus agassizii)—

(1) Definition. For the purposes of this paragraph (e) “desert tortoise” shall mean any member of the species Gopherus agassizii, whether alive or dead, and any part, product, egg, or offspring thereof, found outside of Arizona (south and east of the Colorado River) and Mexico, regardless of natal origin or place of removal from the wild.

(2) Applicable provisions. The provisions of § 17.31–17.32 shall apply to any desert tortoise subject to this paragraph (e).

(f) Bog turtle (Glyptemys muhlenbergii), southern population—

(1) Definitions of terms. For the purposes of this paragraph (f): Bog turtle of the southern population means any member of the species Clemmys muhlenbergii, within Georgia, North Carolina, South Carolina, Tennessee and Virginia, regardless of whether in the wild or captivity, and also applies to the progeny of any such turtle.

(2) Prohibitions. Except as provided in paragraph (f)(3) of this section, the provisions of Sec. 17.31(a) and (b) of this part applies to bog turtles of the southern population (see also 50 CFR part 23).

(3) Take. Incidental take, that is, take that results from, but is not the purpose of, carrying out an otherwise lawful activity, does not apply to bog turtles of the southern population.

(g) Northern Mexican gartersnake (Thamnophis eques megalops)—

(1) Prohibitions. Except as noted in paragraph (g)(2) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the northern Mexican gartersnake.

(2) Exemptions from prohibitions. Incidental take of the northern Mexican gartersnake will not be considered a violation of section 9 of the Act if the take occurs on non–Federal land and is incidental to activities pertaining to construction, continued use, and maintenance of stock tanks. A stock tank is an existing or future impoundment in an ephemeral drainage or upland site constructed primarily as a watering site for livestock.

(h) Black pinesnake (Pituophis melanoleucus lodingi).

(1) Prohibitions. Except as noted in paragraph (h)(2) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the black pinesnake.

(2) Exemptions from prohibitions. Incidental take of the black pinesnake will not be considered a violation of section 9 of the Act if the take results from:

(i) Prescribed burning, including all fire break establishment and maintenance actions, as well as actions taken to control wildfires.

(ii) Herbicide application for invasive plant species control, site-preparation, and mid-story and understory woody vegetation control. All exempted herbicide applications must be conducted in a manner consistent with Federal law, including Environmental Protection Agency label restrictions; applicable State laws; and herbicide application guidelines as prescribed by herbicide manufacturers.

(iii) All forest management activities that maintain lands in a forested condition, except for:

(A) Conversion of longleaf-pine-dominated forests (>51 percent longleaf in the overstory) to other forest cover types or land uses; and

(B) Those activities causing significant subsurface disturbance, including, but not limited to, shearing, wind-rowing, stumping, disking (except during fire break creation or maintenance), root-raking, and bedding.

(i) Louisiana pinesnake (Pituophuis ruthveni)—

(1) Definitions. The following definitions apply only to terms used in this paragraph (i) for activities affecting the Louisiana pinesnake.

(i) Estimated occupied habitat area (EOHA). Areas of land where occurrences of Louisiana pinesnakes have been recorded and that are considered by the Service to be occupied by the species. For current information regarding the EOHAs, contact your local Service Ecological Services office. Field office contact information may be obtained from the Service regional offices, the addresses of which are listed in 50 CFR 2.2.

(ii) Suitable or preferable soils. Those soils in Louisiana and Texas that generally have high sand content and a low water table and that have been shown to be selected by Louisiana pinesnakes (Natural Resources Conservation Service soil survey hydrologic group, Categories A and B).

(2) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Louisiana pinesnake. Except as provided at paragraph (i)(3) of this section and § 17.4, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species:

(i) Import or export, as set forth for endangered wildlife at § 17.21(b).

(ii) Take, as set forth for endangered wildlife at § 17.21(c)(1).

(iii) Possession and other acts with unlawfully taken specimens, as set forth for endangered wildlife at § 17.21(d)(1).

(iv) Interstate or foreign commerce in the course of commercial activity, as set forth for endangered wildlife at § 17.21(e).

(v) Sale or offer for sale, as set forth for endangered wildlife at § 17.21(f).

(3) Exceptions from the prohibitions. In regard to this species, you may:

(i) Conduct activities as authorized by a permit issued under § 17.32.

(ii) Take, as set forth for endangered wildlife at § 17.21(c)(2) through (c)(4).

(iii) Take, as set forth at § 17.31(b).

(iv) Possess and engage in other acts with unlawfully taken Louisiana pinesnakes, as set forth for endangered wildlife at § 17.21(d)(2).

(v) Take incidental to an otherwise lawful activity caused by:

(A) Outside any known EOHAs—Activities that maintain existing forest lands in forest land use and that, when conducted in areas within the range of the Louisiana pinesnake, on preferred or suitable soils, result in the establishment and maintenance of open-canopy pine-dominated forest stands over time across the landscape. These activities include:

(1) Tree thinning, tree harvest (including clearcutting), and planting and replanting pines (by hand or by machine).

(2) Prescribed burning, including all firebreak establishment and maintenance actions, as well as actions taken to control wildfires.

(3) Herbicide application that is generally targeted for invasive plant species control and midstory and understory woody vegetation control, but is also used for site preparation when applied in a manner that minimizes long-term impact to noninvasive herbaceous vegetation. These provisions include only herbicide applications conducted in a manner consistent with Federal and applicable State laws, including Environmental Protection Agency label restrictions and herbicide application guidelines as prescribed by manufacturers.

(4) Skidding logs and use of loading decks that avoid mound complexes of Baird's pocket gophers (Geomys breviceps).

(5) Maintenance of existing substandard (dirt, unsurfaced) forest roads and trails used for access to timber being managed.

(6) Implementation of mandated and State-recommended forestry best management practices, including, but not limited to, those necessary to protect riparian (e.g., streamside management zone) and other habitats from erosional sediment deposition, and prevent washout of forest roads and impacts to vegetation.

(7) Food plot establishment for game animals, when it does not destroy existing native herbaceous vegetation, avoids Baird's pocket gopher mound complexes, and does not exceed 1 acre in size.

(B) Within any known EOHAs where Baird's pocket gopher mounds are present or on lands that have suitable or preferable soils and that are forested, undeveloped, or non-farmed (i.e., not cultivated on an annual basis) and adjacent to forested lands—Activities described in paragraphs (i)(3)(v)(A)(1) through (7) of this section provided that those activities do not:

(1) Cause subsurface disturbance, including, but not limited to, wind-rowing, stumping, disking (except during firebreak creation or maintenance), root-raking, drum chopping (except for single pass with the lightest possible weighted drums and only when the soil is not wet, when used to control hardwoods and woody shrub species detrimental to establishment of pine-forested land), shearing that penetrates the soil surface, ripping (except when restoring pine forest in compacted soil areas such as former pastures), bedding, new road construction, and commercial or residential development. Machine-planting, using the shallowest depth possible, would be allowed in areas where pocket gophers are not present and only for planting pine tree species. In former pastures or highly degraded areas with no herbaceous vegetation and poor planting conditions, subsurface disturbance will be allowed only for activities that contribute to reforestation that is consistent with the conservation of the species.

(2) Inhibit the persistence of suitable Baird's pocket gopher and Louisiana pinesnake habitat, which consists of open-canopy forest situated on well-drained sandy soils with an abundant herbaceous plant community, a nonexistent or sparse midstory, and a low pine basal area.

(3) Involve the use of plastic mesh in erosion control and stabilization devices, mats, blankets, or channel protection.

Credits
[42 FR 2076, Jan. 10, 1977, as amended at 43 FR 32809, July 28, 1978; 44 FR 59084, Oct. 12, 1979; 45 FR 17589, March 19, 1980; 45 FR 78154, Nov. 25, 1980; 46 FR 40669, Aug. 10, 1981; 48 FR 46336, Oct. 12, 1983; 50 FR 25678, June 20, 1985; 50 FR 45409, Oct. 31, 1985; 52 FR 21063, June 4, 1987; 52 FR 23151, June 17, 1987; 52 FR 42662, Nov. 6, 1987; 55 FR 12191, April 2, 1990; 58 FR 49873, Sept. 23, 1993; 61 FR 32366, June 24, 1996; 62 FR 59622, Nov. 4, 1997; 65 FR 25879, May 4, 2000; 72 FR 48446, Aug. 23, 2007; 78 FR 38190, June 25, 2013; 79 FR 38746, July 8, 2014; 80 FR 60489, Oct. 6, 2015; 85 FR 11306, Feb. 27, 2020; 86 FR 57376, Oct. 15, 2021]

AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.

§ 17.43 Special rules--amphibians.

(a) San Marcos salamander (Eurycea nana)

(1) All provisions of § 17.31 apply to this species, except that it may be taken in accordance with applicable State law.

(2) Any violation of State law will also be a violation of the Act.

(b) Chiricahua leopard frog (Lithobates chiricahuensis).

(1) What activities are prohibited? Except as noted in paragraph (b)(2) of this section, all prohibitions of § 17.31 will apply to the Chiricahua leopard frog.

(2) What activities are allowed on private, State, or Tribal land? Incidental take of the Chiricahua leopard frog will not be considered a violation of section 9 of the Act, if the take results from livestock use at or maintenance activities of livestock tanks located on private, State, or Tribal lands. A livestock tank is defined as an existing or future impoundment in an ephemeral drainage or upland site constructed primarily as a watering site for livestock.

(1) Which populations of the California tiger salamander are covered by this special rule? This rule covers the California tiger salamander (Ambystoma californiense) rangewide.

(2) What activities are prohibited? Except as noted in paragraph (c)(3) of this section, all prohibitions of § 17.31 will apply to the California tiger salamander.

(3) What activities are allowed on private or Tribal land? Incidental take of the California tiger salamander will not be a violation of section 9 of the Act, if the incidental take results from routine ranching activities located on private or Tribal lands. Routine ranching activities include, but are not limited to, the following:

(i) Livestock grazing according to normally acceptable and established levels of intensity in terms of the number of head of livestock per acre of rangeland;

(ii) Control of ground-burrowing rodents using poisonous grain according to the labeled directions and local, State, and Federal regulations and guidelines (The use of toxic or suffocating gases is not exempt from the prohibitions due to their nontarget-specific mode of action.);

(iii) Control and management of burrow complexes using discing and grading to destroy burrows and fill openings;

(iv) Routine management and maintenance of stock ponds and berms to maintain livestock water supplies (This exemption does not include the intentional introduction of species into a stock pond that may prey on California tiger salamander adults, larvae, or eggs.);

(v) Routine maintenance or construction of fences for grazing management;

(vi) Planting, harvest, or rotation of unirrigated forage crops as part of a rangeland livestock operation;

(vii) Maintenance and construction of livestock management facilities such as corrals, sheds, and other ranch outbuildings;

(viii) Repair and maintenance of unimproved ranch roads (This exemption does not include improvement, upgrade, or construction of new roads.);

(ix) Discing of fencelines or perimeter areas for fire prevention control;

(x) Placement of mineral supplements; and

(xi) Control and management of noxious weeds.

(d) California red-legged frog (Rana aurora draytonii)—

(1) Which populations of the California red-legged frog are covered by this special rule? This rule covers the California red-legged frog (Rana aurora draytonii) rangewide.

(2) What activities are prohibited? Except as noted in paragraph (d)(3) of this section, all prohibitions of § 17.31 will apply to the California red-legged frog.

(3) What activities are allowed on private or Tribal land? Incidental take of the California red-legged frog will not be a violation of section 9 of the Act, if the incidental take results from routine ranching activities located on private or Tribal lands. Routine ranching activities include, but are not limited to, the following:

(i) Livestock grazing according to normally acceptable and established levels of intensity in terms of the number of head of livestock per acre of rangeland;

(ii) Control of ground-burrowing rodents using poisonous grain according to the labeled directions and local, State, and Federal regulations and guidelines (In areas where California red-legged frogs and California tiger salamanders coexist, the use of toxic or suffocating gases is not exempt from the prohibitions due to their nontarget-specific mode of action.);

(iii) Control and management of burrow complexes using discing and grading to destroy burrows and fill openings (This exemption does not apply to areas within 0.7 mi (1.2 km) of known or potential California red-legged frog breeding ponds.);

(iv) Routine management and maintenance of stock ponds and berms to maintain livestock water supplies (This exemption does not include the intentional introduction of species into a stock pond (including non-native fish and bullfrogs) that may prey on California red-legged frog adults, larvae, or eggs.);

(v) Routine maintenance or construction of fences for grazing management;

(vi) Planting, harvest, or rotation of unirrigated forage crops as part of a rangeland livestock operation;

(vii) Maintenance and construction of livestock management facilities such as corrals, sheds, and other ranch outbuildings;

(viii) Repair and maintenance of unimproved ranch roads (This exemption does not include improvement, upgrade, or construction of new roads.);

(ix) Discing of fencelines or perimeter areas for fire prevention control;

(x) Placement of mineral supplements; and

(xi) Control and management of noxious weeds.

(e) Georgetown salamander (Eurycea naufragia).

(1) Prohibitions. Except as noted in paragraph (e)(2) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the Georgetown salamander.

(2) Exemptions from prohibitions. Incidental take of the Georgetown salamander will not be considered a violation of section 9 of the Act if the take occurs on non–Federal land from regulated activities that are conducted consistent with the water quality protection measures contained in chapter 11.07 and Appendix A of the City of Georgetown (Texas) Unified Development Code (UDC), as endorsed by the U.S. Fish and Wildlife Service.

(f) Neuse River waterdog (Necturus lewisi).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Neuse River waterdog. Except as provided under paragraph (f)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species: