What is a 4(d) rule?
A 4(d) rule is one of many tools in the ESA for protecting threatened species. These rules get their name from section 4(d) of the ESA, which directs the Secretary of the Interior to issue protective regulations deemed “necessary and advisable to provide for the conservation of” threatened species.
Back to top
Why is a 4(d) rule needed?
Section 9 of the ESA provides a specific list of prohibitions for endangered animals but does not provide these same prohibitions for plants or threatened animals. For example, it is illegal (without permit or authorization), concerning any endangered wildlife species to:
- Import any such species into or export any such species from the United States.
- Take any such species within the U.S. or the territorial sea of the U.S.
- Take any such species on the high seas.
- Possess, sell, deliver, carry, transport, or ship, by any means whatsoever any such species taken in violation of the ESA.
- Deliver, receive, carry transport, or ship in interstate or foreign commerce and the course of commercial activity.
- Sell or offer for sale in interstate or foreign commerce any such species.
Without a 4(d) rule, threatened species do not receive any of these protections (although federal agency ESA section 7 consultation requirements, recovery requirements, etc., still apply).
Back to top
Can the Service issue a 4(d) rule for an endangered species?
Early in the administration of the ESA, the Service promulgated "blanket rules," which by default extended to threatened species the majority of the protections that apply to endangered species under section 9. In 2019, we revised our regulations to no longer apply the "blanket rules" to species listed as threatened after the revisions (84 FR 44753). Because the revised regulations do not extend automatic protections to species listed as "threatened species," we must now issue species-specific 4(d) rules to establish appropriate protective regulations for the species.
Back to top
Why is the Service reinstating the “blanket rules”?
It is more straightforward and transparent to have species-specific 4(d) rules in one place in the Code of Federal Regulations and “blanket rule” protections described in another, as the Service had done for 40 years before September 26, 2019. This approach will result in less confusion, less duplication of regulatory text in the Code of Federal Regulations, a lower risk of error in transposing regulatory text, and reduced administrative costs associated with developing and publishing a rule in the Federal Register and Code of Federal Regulations. This is because whenever it's determined that the standard suite of protections is appropriate, the Service will not need to develop any additional regulatory text to codify a species-specific 4(d) rule. Reinstating the “blanket rule” option also ensures there is never a lapse in threatened species protections. If the Service does not promulgate a species-specific 4(d) rule at the time of listing, the “blanket rule” protections will be in place to provide for the conservation of that threatened species. The Service is simply providing a streamlined option for protecting threatened species in situations in which they do not promulgate species-specific 4(d) rules.
Back to top
