[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32706-32716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15255]
[[Page 32705]]
_______________________________________________________________________
Part IV
Department of The Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
_______________________________________________________________________
50 CFR 13 and 17
Safe Harbor Agreements and Candidate Conservation Agreements With
Assurances; Announcement of Final Safe Harbor Policy; Announcement of
Final Policy for Candidate Conservation Agreements With Assurances;
Final Rule and Notices
Federal Register / Vol. 64, No. 116 / Thursday, June 17, 1999 / Rules
and Regulations
[[Page 32706]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR 13 and 17
RIN 1018-AD95
Safe Harbor Agreements and Candidate Conservation Agreements With
Assurances
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule contains the U.S. Fish and Wildlife Service's
(Service) final regulatory changes to Part 17 of Title 50 of the Code
of Federal Regulations (CFR) necessary to implement two final policies
developed by the Service and the National Marine Fisheries Service
(NMFS) under the Endangered Species Act (Act)--the Safe Harbor and the
Candidate Conservation Agreement with Assurances policies published in
today's Federal Register. NMFS will develop separate regulatory changes
to implement these policies.
This rule also contains several amendments to parts 13 and 17 of
title 50 of the CFR that alter the applicability of the Service's
general permitting regulations in 50 CFR part 13 to permits issued
under section 10 of the Act for Habitat Conservation Plans, Safe Harbor
Agreements, and Candidate Conservation Agreements with Assurances.
DATES: This rule is effective July 19, 1999.
ADDRESSES: To obtain copies of the final rule or for further
information, contact Chief, Division of Endangered Species, U.S. Fish
and Wildlife Service, 452 ARLSQ, Washington, D.C., 20240 (Telephone
703/358-2171, Facsimile 703/358-1735).
FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division
of Endangered Species (Telephone (703/358-2171), Facsimile (703/358-
1735)).
SUPPLEMENTARY INFORMATION: These final regulations and the background
information regarding the final rule apply to the U.S. Fish and
Wildlife Service only. Therefore, the use of the terms Service and
``we'' in this notice refers exclusively to the U.S. Fish and Wildlife
Service. The proposed rule on Safe Harbor Agreements and Candidate
Conservation Agreements with Assurances was issued on June 12, 1997 (62
FR 32189). We revised the proposed rule based on public comments we
received, because of further consideration of the proposed rule, and to
reflect the revisions to the Safe Harbor and Candidate Conservation
Agreements with Assurances policies the rule is intended to implement
(see Final Safe Harbor and Candidate Conservation Agreements with
Assurances policies published in today's Federal Register). This rule
does not finalize the proposed changes to part 13 that were published
on September 5, 1995 (60 FR 46087), which are still pending.
Background
The Service administers a variety of conservation laws that
authorize the issuance of certain permits for otherwise prohibited
activities. In 1974, we published 50 CFR part 13 to consolidate the
administration of its various permitting programs. Part 13 established
a uniform framework of general administrative conditions and procedures
that would govern the application, processing, and issuance of all
Service permits. We intended the general part 13 permitting provisions
to be in addition to, and not in lieu of, other more specific
permitting requirements of Federal wildlife laws.
Subsequent to the 1974 publication of part 13, we added many
wildlife regulatory programs to Title 50 of the CFR. For example, we
added part 18 in 1974 to implement the Marine Mammal Protection Act,
modified and expanded part 17 in 1975 to implement the Act, and added
part 23 in 1977 to implement the Convention on International Trade in
Endangered Species of Fauna and Flora (CITES). These parts contained
their own specific permitting requirements in addition to the general
permitting provisions of part 13.
In most instances, the combination of part 13's general permitting
provisions and part 17's specific Act permitting provisions have worked
well since 1975. However, in three areas of emerging permitting policy
under the Act, the ``one size fits all'' approach of part 13 is
inappropriately constraining and narrow. These three areas involve
Habitat Conservation Planning, Safe Harbor Agreements, and Candidate
Conservation Agreements with Assurances.
Congress amended section 10(a)(1) of the Act in 1982 to authorize
incidental take permits associated with Habitat Conservation Plans
(HCP). Many HCP permits involve long-term conservation commitments that
run with the affected land for the life of the permit or longer. We
negotiate such long-term permits recognizing that a succession of
owners may purchase or resell the affected property during the term of
the permit. The Service does not view this as a problem, where the
requirements of such permits run with the land and successive owners
agree to the terms of the HCP. Property owners similarly do not view
this as a problem so long as we can easily transfer incidental take
authorization from one purchaser to another.
In other HCP situations, the HCP permittee may be a State or local
agency that intends to sub-permit or blanket the incidental take
authorization to hundreds if not thousands of its citizens. We do not
view this as a problem so long as the original agency permittee abides
by, and ensures compliance with, the terms of the HCP.
The above HCP scenarios are not easily reconcilable with certain
sections of part 13. For example, 50 CFR sections 13.24 and 13.25
impose significant restrictions on permit right of succession or
transferability. While these restrictions are well justified for most
wildlife permitting situations, they impose inappropriate and
unnecessary limitations for HCP permits where the term of the permit
may be lengthy and the parties to the HCP foresee the desirability of
simplifying sub-permitting and permit transference from one property
owner to the next, or from a State or local agency to citizens under
their jurisdiction.
Similar problems also could arise in attempting to apply the
general part 13 permitting requirements to permits issued under part 17
to implement Safe Harbor or Candidate Conservation Agreements with
Assurances. A major incentive for property owner participation in the
Safe Harbor or Candidate Conservation programs is the long-term
certainty the programs provide, including the certainty that the
incidental take authorization will run with the land if it changes
hands and the new owner agrees to be bound by the terms of the original
Agreement. Property owners could view the present limitations in
several sections (e.g., sections 13.24 and 13.25) as impediments to the
development of these Agreements.
The proposed rule would have addressed these potential problems by
revising section 13.3, the Scope of Regulations provision in part 13,
to provide that the specific provisions in a particular HCP, Safe
Harbor, or Candidate Conservation Agreement permit and associated
documents would control whenever they were in conflict with the general
provisions of the part 13 regulations. After further consideration, we
have determined that it is more appropriate to address these potential
conflicts by promulgating revisions to parts 13 and 17 that identify
the specific instances in which the
[[Page 32707]]
permit procedures for HCP, Safe Harbor, and Candidate Conservation
Agreement permits will differ from the general part 13 permit
procedures. For a fuller discussion of these revisions to parts 13 and
17, see ``Description of the Final Rule,'' below.
It is important to note that we proposed other amendments to
section 13.3 on September 5, 1995 (60 FR 46087). Those changes would,
among other things, provide an explanation of the term ``permit''
needed to refer correctly to CITES requirements, state the scope of
part 13's requirements clearly, and ensure that the up-to-date titles
of several parts of 50 CFR are used. However, the September 5, 1995,
proposal did not deal with the potential conflicts between the general
provisions included in part 13 and the specific provisions for
incidental take and enhancement of survival permits under part 17. This
final rule does not amend the language included in the September 5,
1995, proposal which is still pending.
Finally, we also proposed to add four new sub-sections to part 17
that would govern the issuance of endangered or threatened species
``enhancement of survival'' permits under section 10(a)(1)(A) of the
Act for activities conducted under Safe Harbor or Candidate
Conservation Agreements with Assurances.
Overview of Safe Harbor Agreement and Candidate Conservation
Agreement With Assurances Programs
The information below briefly describes these two programs. For
more details on these two programs, see the two final policies also
published in today's Federal Register.
Much of the nation's current and potential habitat for listed,
proposed, and candidate species exists on property owned by private
citizens, States, municipalities, Tribal governments, and other non-
Federal entities. Conservation efforts on non-Federal lands are
critical to the long-term conservation of many declining species. More
importantly, a collaborative stewardship approach is critical for the
success of such an initiative. Many property owners would be willing to
manage their lands voluntarily to benefit fish, wildlife, and plants,
especially those that are declining, provided that they are not
subjected to additional regulatory restrictions as a result of their
conservation efforts. Beneficial management could include actions to
maintain habitat or improve habitat (e.g., restoring fire by prescribed
burning, restoring properly functioning hydrological conditions).
Property owners are particularly concerned about land-use restrictions
that might result if listed species colonize their lands or increase in
numbers or distribution because of the property owners' conservation
efforts, or if species subsequently become listed as a threatened or
endangered species. The potential for future restrictions has led many
property owners to avoid or limit land or water management practices
that could enhance or maintain habitat and benefit or attract fish and
wildlife that are listed or may be listed in the future.
The purpose of the Safe Harbor Policy is to ensure consistency in
the development of Safe Harbor Agreements. Under a Safe Harbor
Agreement, participating property owners voluntarily undertake
management activities on their property to enhance, restore, or
maintain habitat benefiting federally listed species. Safe Harbor
Agreements encourage private and other non-Federal property owners to
implement conservation efforts for listed species by assuring property
owners they will not be subjected to increased property-use
restrictions if their efforts attract listed species to their
properties or increase the numbers or distribution of listed species
already present on their properties. We will closely coordinate
development of Safe Harbor Agreements with the appropriate State fish
and wildlife or other agencies and any affected Native American Tribal
governments. Collaborative stewardship with State fish and wildlife
agencies is particularly important given the critical partnership
between the Service and the States in recovering listed species.
The ultimate goal of Candidate Conservation Agreements with
Assurances is, to remove enough threats to the covered species to
preclude any need to list them as threatened or endangered under the
Act. Proposed and candidate species may be the subject of a Candidate
Conservation Agreement. Certain other unlisted species that are likely
to become a candidate or proposed species in the near future may also
be the subject of a Candidate Conservation Agreement. These Agreements
are different from Safe Harbor Agreements (which involve the presence
of at least one listed species) in that they provide conservation
benefits exclusively to candidate and proposed species of fish,
wildlife, and plants. The substantive requirements of activities
carried out under Candidate Conservation Agreements with Assurances, if
undertaken on a broad enough scale by other property owners similarly
situated, should be expected to preclude any need to list species
covered by the Agreement as threatened or endangered under the Act.
Summary of Proposed Rule
As discussed above, the proposed rule issued on June 12, 1997 (62
FR 32189), would have revised section 13.3, the Scope of Regulations
provision in part 13, to provide that the specific provisions in a
particular HCP, Safe Harbor, or Candidate Conservation Agreement permit
and associated documents would control whenever they were in conflict
with the general provisions of the part 13 regulations. The proposed
rule also would have added four new subsections to 50 CFR part 17.
These subsections would govern the issuance of ``enhancement of
survival'' permits under section 10(a)(1)(A) of the Act for activities
conducted under Safe Harbor Agreements or Candidate Conservation
Agreements with Assurances for endangered species (50 CFR 17.22(c) and
(d), respectively), and threatened species (50 CFR 17.32(c) and (d),
respectively). These sub-sections were designed to ensure consistent
application of the Safe Harbor Agreements and Candidate Conservation
Agreements with Assurances programs, and are the legal mechanism for us
to provide the necessary assurances to non-Federal landowners
participating in these programs. Permits issued to provide assurances
for activities to be conducted under a Candidate Conservation Agreement
with Assurances only become effective upon the effective date of a
final rule listing any of the covered species as threatened or
endangered.
Summary of Received Comments
We received only two specific comments related to the proposed
regulations, although more than 300 letters were received regarding the
policies these regulatory changes are intended to implement. This final
rule reflects changes needed to implement the final policies, which
were revised to address comments received on the proposed policies. We
address here only the two comments directly related to these
regulations. For detailed discussions of the issues raised by
commenters relative to the policies and the Service's responses, please
refer to the final policies also published in today's Federal Register.
Issue 1. A commenter raised concerns regarding the opportunity for
public review of permits issued under 50 CFR part 17. 22(c)(1) [Safe
Harbor permits] and 17.22(d)(1) [Candidate Conservation Agreement with
Assurances permits] for species listed as endangered.
[[Page 32708]]
Response 1. The proposed rule did not reduce the opportunity for
public involvement in the issuance of these permits. The commenter
apparently was unaware that all applications for permits issued under
50 CFR 17.22 (permits for species listed as endangered) are already
required to undergo public review and comment. ``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'' (50 CFR 17.22). Therefore, it is clear that the
current regulations governing these permits already require public
review and comment on permit applications filed, and to add a specific
review requirement for these permits would be redundant. The commenter
was probably confused by the inclusion of specific public review
requirements for threatened species permits issued under 50 CFR part
17.32 (c)(1) [Safe Harbor permits] and 17.32 (d)(1) [Candidate
Conservation Agreement permits]. In contrast to 50 CFR 17.22, 50 CFR
17.32 generally does not require public review and comment on permits,
although the specific provisions for threatened species incidental take
permits do require such notice and comment (see 50 CFR 17.32
(b)(1)(ii)). To ensure an open and public process for the evaluation
and issuance of permits to provide assurances to non-Federal landowners
participating under the Safe Harbor and Candidate Species Conservation
Agreements with Assurances policies, we have included similar public
review requirements for these permits. The inclusion of these new
provisions under 50 CFR 17.32 (c)(2) and 50 CFR 17.32 (d)(2) will
ensure ample and meaningful public participation in this process.
Issue 2. Several commenters expressed concerns regarding the
inability of landowners to terminate both Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances/Permits before their
expiration dates, especially since these are voluntary Agreements.
Response 2. We agree that it is reasonable to include ``early-out''
provisions in these Agreements and in this final rule. We acknowledge
that in some circumstances, such as family illnesses, financial
hardships, and economically profitable ventures, landowners may need to
terminate Agreements prior to their expiration dates. The final rule
has been revised to provide for such opportunities, while ensuring that
the agreed upon baseline conditions are not eroded and that we have an
opportunity to translocate affected individuals of covered species.
Revisions to the Proposed Rule
The regulations have been revised to accommodate needs identified
during the public review and comment period. This accommodation will
facilitate our implementation of these programs and participation by
interested non-Federal landowners. The proposed rule provided that the
specific provisions in a particular HCP, Safe Harbor, or Candidate
Conservation Agreement permit and associated documents would control
whenever they were in conflict with the provisions of the general part
13 permit regulations. The final rule instead includes specific
revisions to parts 13 and 17 that identify the particular instances in
which the permit procedures for HCP, Safe Harbor, and Candidate
Conservation Agreement permits will differ from the general part 13
permit procedures. For a fuller discussion of these revisions to parts
13 and 17, see ``Description of the Final Rule,'' below. The final rule
also includes a provision to allow for the termination of an Agreement
and permit prior to their expiration dates. Because of the voluntary
nature of the Safe Harbor Agreements and Candidate Conservation
Agreements with Assurances, it is appropriate to provide these ``early-
out'' options to program participants. Based on our past experience
with voluntary habitat management programs (e.g., Partners for Fish and
Wildlife), we expect that only a minor fraction of all participating
landowners will invoke this option. We require ``early-out''
participants to provide us with prior notification. This will
facilitate our ability to translocate any potentially affected
individuals of a covered species. In addition, the final rule reflects
revisions needed to implement revisions in the final Safe Harbor and
Candidate Conservation Agreements with Assurances policies. For a full
description of these revisions, see the final Safe Harbor and Candidate
Conservation Agreements with Assurances policies published in today's
Federal Register.
Description/Overview of the Final Rule
The final rule codifies minimum permit requirements and conditions
that must be met in order for participating non-Federal landowners to
receive the assurances under a Safe Harbor or a Candidate Species
Conservation Agreement with Assurances. These permits, issued under 50
CFR part 17, are for activities to be voluntarily conducted under a
Safe Harbor Agreement and/or a Candidate Conservation Agreement with
Assurances.
As discussed above, the final rule does not adopt the proposal to
amend section 13.3 to clarify that the specific provisions of an HCP,
Safe Harbor Agreement, or Candidate Conservation Agreement would
control wherever they conflict with the general permit provisions of
part 13. We did not receive any public comments on this proposal,
including any comments objecting to the proposal. However, we decided
instead to include in the final rule specific amendments to parts 13
and 17 that will dictate when the permitting requirements for HCP, Safe
Harbor, and Candidate Conservation Agreement permits will vary from the
general part 13 requirements. We believe these amendments will achieve
the proposal's purpose of avoiding potential conflicts between these
permits and the general part 13 requirements, while more clearly
informing potential applicants and the interested public of the ways in
which the requirements for HCP, Safe Harbor, and Candidate Conservation
Agreement permits differ from the general permit requirements. The
specific changes are as follows:
1. Section 13.21(b)(4) generally prevents the Service from issuing
a permit for an activity that ``potentially threatens a wildlife or
plant population.'' This is unnecessary and might even be confusing for
HCPs, Safe Harbor Agreements, and Candidate Conservation Agreements
with Assurances, since the HCP and Candidate Conservation Agreement
with Assurances permit issuance criteria already incorporate a
requirement that the permitted activity cannot be likely to jeopardize
the continued existence of a species and since Safe Harbor Agreement
permits must meet a net benefit test. The final rule therefore revises
the HCP permit issuance criteria in sections 17.22(b)(2) and
17.32(b)(2) to except HCP permits from section 13.21(b)(4) and includes
in the final Safe Harbor Agreement and Candidate Conservation Agreement
with Assurances permit regulations a similar exception from section
13.21(b)(4).
2. Section 13.23(b)(4) generally reserves to the Service the right
to amend permits ``for just cause at any time.'' The final rule revises
this provision to clarify that the Service's reserved right to amend
HCP, Safe Harbor Agreement, and Candidate Conservation Agreement with
Assurances permits must be exercised consistently with the assurances
provided to HCP, Safe Harbor Agreement, and Candidate Conservation
[[Page 32709]]
Agreement with Assurances permit holders in their permits and in the
HCP, Safe Harbor Agreement, and Candidate Conservation Agreement with
Assurances permit regulations.
3. Section 13.24 is revised in the final rule to provide a more
streamlined approach to rights of succession for HCP, Safe Harbor
Agreement, and Candidate Conservation Agreement with Assurances permits
and section 13.25 is revised to provide for greater transferability of
these permits. As explained in the proposed rule, the restrictions
sections 13.24 and 13.25 impose on permit succession and
transferability are justified for most wildlife permitting situations,
but they are inappropriate and unnecessary for HCP, Safe Harbor
Agreement, and Candidate Conservation Agreement with Assurances
permits. These permits may involve substantial long-term conservation
commitments, and the Service negotiates such long-term permits
recognizing that there may be succession or transfer in ownership
during the term of the permit. Revised sections 13.24 and 13.25 allow
this as long as the successor or transferor owners meet the general
qualifications for holding the permit and agree to the terms of the
HCP, Safe Harbor Agreement, or Candidate Conservation Agreement with
Assurances. Under revised section 13.25(d), any person under the direct
control of a State or local governmental entity that has been issued a
permit may carry out the activity authorized by the permit if (1) they
are under the jurisdiction of the governmental entity and the permit
provides that they may carry out the authorized activity, or (2) they
have been issued a permit by the governmental entity or executed a
written instrument with the governmental entity pursuant to the terms
of an implementing agreement.
4. The final rule adds a new subparagraph (7) to sections 17.22(b)
and 17.32(b) to make clear that HCP permittees remain responsible for
mitigation required under the terms of their permits even after
surrendering their permits. We have required this approach in many
HCPs. The general provision in section 13.26 is silent on this issue
and could have been interpreted as not requiring any further actions
after surrender of an incidental take permit, even if mitigation were
owed under the terms of the permit for take that had already occurred.
5. The final rule modifies the permit revocation criteria in
section 13.28(a) to provide that the section 13.28(a)(5) criterion
shall not apply to HCP, Safe Harbor Agreement, and Candidate
Conservation Agreement with Assurances permits. The Service determined
that it would be more appropriate to refer instead to the statutory
issuance criterion in 16 U.S.C. 1539(a)(2)(B)(iv) that prohibits the
issuance of an incidental take permit unless the Service finds the
permit is not likely to jeopardize the continued existence of the
species. The final rule therefore includes in the specific regulations
for HCP permits a provision (sections 17.22(b)(8) and 17.32(b)(8)) that
allows a permit to be revoked if continuing the permitted activity
would be inconsistent with 16 U.S.C. 1539(a)(2)(B)(iv). The final rule
also includes similar provisions in the Safe Harbor Agreement and
Candidate Conservation Agreement with Assurances regulations.
In keeping with the ``No Surprises'' rule (sections 17.22(b)(5)-(6)
and 17.32(b)(5)-(6)) these provisions would allow the Service to revoke
an HCP permit as a last resort in the narrow and unlikely situation in
which an unforeseen circumstance results in likely jeopardy to a
species covered by the permit and the Service has not been successful
in remedying the situation through other means. The Service is firmly
committed, as required by the No Surprises rule, to utilizing its
resources to address any such unforeseen circumstances. These
principles would also apply to Safe Harbor Agreement and Candidate
Conservation Agreement with Assurances permits.
6. The final rule revises section 13.50 to allow more flexibility
where the permittee is a State or local governmental entity, and has
thus taken a leadership role and assists in implementation of the
permit program.
The four new sub-sections under 50 CFR part 17 are designed to
ensure consistent application of the Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances programs. These
regulatory changes are the legal mechanism for the Service to provide
the necessary assurances to non-Federal landowners participating in
these programs.
Required Determinations
Regulatory Planning and Review, Regulatory Flexibility Act, and Small
Business Regulatory Enforcement Fairness Act
The final rule was subject to Office of Management and Budget (OMB)
review under Executive Order 12866.
a. The final rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government.
b. The final rule will not create inconsistencies with other
agencies' actions. The final rule establishes completely voluntary
programs for non-Federal property owners. These programs are not
available to Federal agencies. Because Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances are entered into
voluntarily, the final rule does not create inconsistencies with the
actions of non-Federal agencies.
c. The final rule will not materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. The final rule follows the policy direction set forth in the
March 1995 Administration's 10-point plan for an effective and
efficient implementation of the Act. In that plan the Administration
set the precedent and the policy direction for the implementation of
the Act. Specifically, various proposals have been published which
provides incentives for non-Federal property owners to conserve
species. More importantly, these proposals call for removing the
disincentives that implementation of some provisions of the Act may
have inadvertently imposed on non-Federal property owners.
The Department of the Interior certifies that the final rule will
not have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). E.O. 12866, 5 U.S.C. 601 et seq. and 5 U.S.C. 801 et seq.
require that an agency assess the economic effects of a rule. One way
to address this is to determine whether a credible upper bound for the
effects of the rule is less than $100 million.
We take that approach below by first determining the maximum number
of Candidate Conservation Agreements with Assurances that the Service's
budget allows it to process in a year, and then seeing whether this
number of agreements could reasonably be expected to generate $100
million of effects annually.
The Service's Candidate Conservation Program budget for FY 1999 is
approximately $6.7 million. This funding covers candidate assessment
activities, development of traditional Candidate Conservation
Agreements (without assurances), development and implementation of
other candidate conservation actions, and development of Candidate
Conservation Agreements with Assurances. The 1999 funding level for the
Candidate Conservation
[[Page 32710]]
Program represents an increase of $1 million over the 1998 level. Some
of the additional monies were anticipated to be used to increase
capabilities for existing functions. However, for purposes of this
analysis we will assume that the entire $1 million is available for
development of Candidate Conservation Agreements with Assurances.
The average time required for a Service biologist to develop a
Candidate Conservation Agreement with Assurances and process a Section
10(a)(1)(A) permit application is estimated to be about one month.
Using an average cost index of $10,000 per employee month and adding an
additional $5,000 to cover travel, management review, publication in
the Federal Register, and other associated costs brings the total cost
for development of an average Candidate Conservation Agreement with
Assurances to $15,000. Therefore, the Service could fund the
development of approximately 67 Candidate Conservation Agreements with
Assurances per year at the FY 1999 funding level.
For there to be $100 million of effects from the 67 Candidate
Conservation Agreements with Assurances, on average a Candidate
Conservation Agreement with Assurances would have to generate
approximately $1.5 million in benefits. Since we expect the
participants in the program to be relatively small entities, this is
not a credible number for the effect of the average Candidate
Conservation Agreement with Assurances.
The Service's budget for FY 1999 included $5 million for a new
activity, the Private Landowner Incentive Program. This funding covers
the development of Safe Harbor Agreements. About half of the money will
be used to fund Service personnel to work with landowners to develop
Safe Harbor Agreements; the remaining funds will serve as financial
assistance incentives to participating landowners.
The average time required for a Service biologist to develop a Safe
Harbor Agreement and process a Section 10(a)(1)(A) permit application
is estimated to be about one month. Using an average cost index of
$10,000 per employee month and adding an additional $5,000 to cover
travel, management review, publication in the Federal Register, and
other associated costs brings the total cost for development of an
average Safe Harbor Agreement to $15,000. Therefore, the Service could
fund the development of approximately 67 Safe Harbor Agreements per
year at the FY 1999 funding level.
For there to be $100 million of effects from the 67 Safe Harbor
Agreements, on average a Safe Harbor Agreement to generate
approximately $1.5 million in benefits. Since we expect the
participants in the program to be relatively small entities, this is
not a credible number for the effect of the average Safe Harbor
Agreement.
The final rule is not a major rule under 5 U.S.C. 801 et seq., the
Small Business Regulatory Enforcement Fairness Act.
a. The final rule will not produce an annual economic effect of
$100 million.
b. The final rule will not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. Because property owners
will voluntarily enter into Safe Harbor Agreements and Candidate
Conservation Agreements with Assurances only when the effects are
positive, the final rule will not increase costs or prices.
c. The final rule will not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Because property owners will voluntarily enter into Safe
Harbor Agreements and Candidate Conservation Agreements with Assurances
only when the effects are positive, the final rule will not result in
adverse effects.
All non-Federal entities--individuals, small businesses, large
corporations, State and local agencies, and private organizations--are
eligible to participate in Safe Harbor Agreements and Candidate
Conservation Agreements with Assurances. Although there may be some
corporate property owners interested in developing Safe Harbor
Agreements and Candidate Conservation Agreements with Assurances, based
on prior experience we expect most participating properties will be
family-owned farms and ranches. We do not expect that all Candidate
Conservation Agreements with Assurances or Safe Harbor Agreements would
be geographically concentrated to the degree that small entities in one
particular area would be most affected. The impact on small ownerships
is expected to be economically insignificant because most of these
costs are on a per acre basis. There will also not be enough Safe
Harbor Agreements or Candidate Conservation Agreements with Assurances
in any given year or in any given area to lead to a substantial impact
on a significant number of small entities.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.):
a. The final rule will not impose a cost of $100 million or more in
any given year on State, local or Tribal governments or private
entities. No additional information will be required from a non-Federal
entity solely as a result of the final rule. Since the final rule
establishes a completely voluntary program, there are no incremental
costs being imposed on non-Federal landowners.
b. The final rule will not produce a Federal mandate of $100
million or greater in any year; that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings Implication Assessment
The Service has determined that this rule has no potential takings
of private property implications as defined by Executive Order 12630.
The primary reason for this determination is that this rule provides
two voluntary programs that do not require individuals to participate
unless they volunteer to do so.
Federalism Assessment
This final rule will not have substantial direct effects on the
States, in their relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among
various levels of government. Therefore, in accordance with Executive
Order 12612, the Service has determined that this rule does not have
sufficient federalism implications to warrant a Federalism Assessment.
Civil Justice Reform
The Department of the Interior has determined that this final rule
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Paperwork Reduction Act
The Service has examined this final rule under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirements
associated with incidental take permits other than those already
approved for incidental take permits with OMB approval #1018-0094,
which has an expiration date of February 28, 2001.
National Environmental Policy Act
The Department of the Interior has determined that the issuance of
the rule
[[Page 32711]]
is categorically excluded under the Department's NEPA procedures in 516
DM 2, Appendix 1.10.
Section 7 Consultation
The Service does not need to complete a section 7 consultation on
this final rule. An intra-Service consultation is completed prior to
issuing enhancement of survival permits under 10(a)(1)(A) of the
Endangered Species Act associated with individual Safe Harbor
Agreements and Candidate Conservation Agreements with Assurances.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 17
Endangered and threatened species, Export, Import, Reporting and
recordkeeping requirements, Transportation.
For the reasons set out in the preamble, we amend Title 50, Chapter
I, subchapter B of the Code of Federal Regulations, as set forth below:
PART 13--[AMENDED]
The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a; 704, 712; 742j-l; 1382; 1538(d);
1539, 1540(f); 3374; 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O.
11911, 41 FR 15683; 31 U.S.C. 9701.
2. Section 13.23(b) is revised to read as follows:
Sec. 13.23 Amendment of permits.
* * * * *
(b) The Service reserves the right to amend any permit for just
cause at any time during its term, upon written finding of necessity,
provided that any such amendment of a permit issued under Sec. 17.22(b)
through (d) or Sec. 17.32(b) through (d) of this subchapter shall be
consistent with the requirements of Sec. 17.22(b)(5), (c)(5) and (d)(5)
or Sec. 17.32(b)(5), (c)(5) and (d)(5) of this subchapter,
respectively.
* * * * *
3. Section 13.24 is revised to read as follows:
Sec. 13.24 Right of succession by certain persons.
(a) Certain persons other than the permittee are authorized to
carry on a permitted activity for the remainder of the term of a
current permit, provided they comply with the provisions of paragraph
(b) of this section. Such persons are the following:
(1) The surviving spouse, child, executor, administrator, or other
legal representative of a deceased permittee; or
(2) A receiver or trustee in bankruptcy or a court designated
assignee for the benefit of creditors.
(b) In order to qualify for the authorization provided in this
section, the person or persons desiring to continue the activity shall
furnish the permit to the issuing officer for endorsement within 90
days from the date the successor begins to carry on the activity.
(c) In the case of permits issued under Sec. 17.22(b) through (d)
or Sec. 17.32(b) through (d) of this subchapter B, the successor's
authorization under the permit is also subject to a determination by
the Service that:
(1) The successor meets all of the qualifications under this part
for holding a permit;
(2) The successor has provided adequate written assurances that it
will provide sufficient funding for the conservation plan or Agreement
and will implement the relevant terms and conditions of the permit,
including any outstanding minimization and mitigation requirements; and
(3) The successor has provided such other information as the
Service determines is relevant to the processing of the request.
4. Section 13.25 is revised to read as follows:
Sec. 13.25 Transfer of permits and scope of permit authorization.
(a) Except as otherwise provided for in this section, permits
issued under this part are not transferable or assignable.
(b) Permits issued under Sec. 17.22(b) through (d) or Sec. 17.32(b)
through (d) of this subchapter B may be transferred in whole or in part
through a joint submission by the permittee and the proposed
transferee, or in the case of a deceased permittee, the deceased
permittee's legal representative and the proposed transferee, provided
the Service determines that:
(1) The proposed transferee meets all of the qualifications under
this part for holding a permit;
(2) The proposed transferee has provided adequate written
assurances that it will provide sufficient funding for the conservation
plan or Agreement and will implement the relevant terms and conditions
of the permit, including any outstanding minimization and mitigation
requirements; and
(3) The proposed transferee has provided such other information as
the Service determines is relevant to the processing of the submission.
(c) Except as otherwise stated on the face of the permit, any
person who is under the direct control of the permittee, or who is
employed by or under contract to the permittee for purposes authorized
by the permit, may carry out the activity authorized by the permit.
(d) In the case of permits issued under Sec. 17.22(b) through (d)
or Sec. 17.32(b) through (d) of this subchapter to a State or local
governmental entity, any person who is under the direct control of the
permittee may carry out the activity authorized by the permit where:
(1) The person is under the jurisdiction of the permittee and the
permit provides that such person(s) may carry out the authorized
activity; or
(2) The person has been issued a permit by the governmental entity
or has executed a written instrument with the governmental entity,
pursuant to the terms of the implementing agreement.
5. Section 13.28(a)(5) is revised to read as follows:
Sec. 13.28 Permit revocation.
(a) * * *
(5) Except for permits issued under Sec. 17.22(b) through (d) or
Sec. 17.32(b) through (d) of this subchapter, the population(s) of the
wildlife or plant that is the subject of the permit declines to the
extent that continuation of the permitted activity would be detrimental
to maintenance or recovery of the affected population.
* * * * *
6. Section 13.50 is revised to read as follows:
Sec. 13.50 Acceptance of Liability.
Except as otherwise limited in the case of permits described in
Sec. 13.25(d), any person holding a permit under this subchapter B
assumes all liability and responsibility for the conduct of any
activity conducted under the authority of such permit.
PART 17--[AMENDED]
7. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
8. Section 17.22 is amended by revising paragraph (b)(2), adding
new paragraphs (b)(7) and (b)(8), redesignating paragraph (c) as
paragraph (e), and adding new paragraphs (c) and (d) as follows:
[[Page 32712]]
Sec. 17.22 Permits for scientific purposes, enhancements of
propagation or survival, or for incidental taking.
* * * * *
(b) * * *
(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 Sec. 13.21(b) of this
subchapter, except for Sec. 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.
* * * * *
(7) Discontinuance of permit activity. Notwithstanding the
provisions of Sec. 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
Sec. 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 this paragraph
(b) may not be revoked for any reason except those set forth in
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been
remedied in a timely fashion.
(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 activity is to occur (for
appropriate addresses, see 50 CFR 10.22), if the applicant wishes to
engage in any activity prohibited by Sec. 17.21. 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 the land use or water management activity for
which the applicant requests incidental take authorization; and
(iii) A Safe Harbor Agreement that complies with the requirements
of the Safe Harbor policy available from the Service.
(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 Sec. 13.21(b) of this subchapter,
except for Sec. 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
will 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) A requirement for the property owner to notify the Service at
least 30 days in advance, but preferably as far in advance as possible,
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 translocate 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
paragraph (c)(5) (ii) of this section (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) If additional conservation and mitigation measures are deemed
necessary, the Director may require additional measures of the
permittee, but only if such measures are limited to modifications
within conserved habitat areas, if any, for the affected species and
maintain the original terms of the Safe Harbor Agreement 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 Safe Harbor Agreement without the
consent of the permittee.
[[Page 32713]]
(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. A permit issued under this paragraph
(c) may not be revoked for any reason except those set forth in
Sec. 13.28(a) (1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in Sec. 17.22(c)(2)(iii) and the inconsistency has not been
remedied in a timely fashion.
(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. 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 Candidate Conservation Agreement
with Assurances is listed as endangered and the applicant wishes to
engage in activities identified in the Agreement and otherwise
prohibited by Sec. 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 an endangered 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 Candidate Conservation Agreement that complies with the
requirements of the Candidate Conservation Agreement with Assurances
policy available from the Service.
(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 Sec. 13.21(b) of this subchapter,
except for Sec. 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 Candidate Conservation
Agreement;
(ii) The Candidate Conservation Agreement complies with the
requirements of 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 Candidate Conservation
Agreement is consistent with applicable Federal, State, and Tribal laws
and regulations;
(v) Implementation of the terms of the Candidate Conservation
Agreement will 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 Candidate Conservation 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 (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 Candidate Conservation Agreement;
(ii) A requirement for the property owner to notify the Service at
least 30 days in advance, but preferably as far in advance as possible,
of when he or she expects to incidentally take any species covered
under the permit. Such notification will provide the Service with an
opportunity to translocate 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 Candidate Conservation Agreement.
(4) Permit effective date. Permits issued under this paragraph (d)
become effective for a species covered by a Candidate Conservation
Agreement on the effective date of a final rule that lists a covered
species as endangered.
(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
Candidate Conservation with Assurances Agreement is being properly
implemented, and apply only with respect to species adequately covered
by the Candidate Conservation with Assurances Agreement. These
assurances cannot be provided to Federal agencies.
(i) Changed circumstances provided for in the Agreement. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and were provided for in the
Agreement's operating conservation program, the permittee will
implement the measures specified in the Agreement.
(ii) Changed circumstances not provided for in the Agreement. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided
for in the Agreement's operating conservation program, the Director
will not require any conservation and mitigation 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. (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
Agreement 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 Agreement is
being properly implemented, but only if such measures are limited to
modifications within conserved habitat areas, if any, or to the
Agreement's operating conservation program for the affected species,
and maintain the original terms of the Agreement to the maximum extent
possible. Additional conservation and mitigation measures will not
involve the commitment of additional land, water or financial
compensation or additional
[[Page 32714]]
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.
(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
Candidate Conservation with Assurances Agreement.
(7) Criteria for revocation. A permit issued under this paragraph
(d) may not be revoked for any reason except those set forth in
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in paragraph (d)(2)(iii) of this section and the inconsistency
has not been remedied in a timely fashion.
(8) Duration of the Candidate Conservation Agreement. The duration
of a Candidate Conservation Agreement covered by a permit issued under
this paragraph (d) must be sufficient to enable the Director to
determine that the benefits of the conservation measures in the
Agreement, when combined with those benefits that would be achieved if
it is assumed that the conservation measures would also be implemented
on other necessary properties, would preclude or remove any need to
list the species covered by the Agreement.
* * * * *
9. Section 17.32 is amended by revising (b)(2) by adding (b)(7) and
(b)(8), and adding new paragraphs (c) and (d) as follows:
Sec. 17.32 Permits--general.
* * * * *
(b) * * *
(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.
* * * * *
(7) Discontinuance of permit activity. Notwithstanding the
provisions of Sec. 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
Sec. 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 this paragraph
(b) may not be revoked for any reason except those set forth in
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been
remedied in a timely fashion.
(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 Sec. 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 the land use or water management activity for
which the applicant requests incidental take authorization;
(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
Sec. 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 Sec. 13.21(b) of this subchapter,
except for Sec. 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
will 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
[[Page 32715]]
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) A requirement for the property owner to notify the Service at
least 30 days in advance, but preferably as far in advance as possible,
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 translocate 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) If additional conservation and mitigation measures are deemed
necessary, the Director may require additional measures of the
permittee, but only if such measures are limited to modifications
within conserved habitat areas, if any, for the affected species and
maintain the original terms of the Safe Harbor Agreement 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 Safe Harbor Agreement 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. A permit issued under this paragraph
(c) may not be revoked for any reason except those set forth in
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in 17.22(c)(2)(iii) and the inconsistency has not been remedied
in a timely fashion.
(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. 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 Candidate Conservation Agreement
with Assurances is listed as threatened and the applicant wishes to
engage in activities identified in the Agreement and otherwise
prohibited by Sec. 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 Candidate Conservation Agreement 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
Sec. 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 Sec. 13.21(b) of this subchapter,
except for Sec. 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 Candidate Conservation
Agreement;
(ii) The Candidate Conservation Agreement complies with the
requirements of 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 Candidate Conservation
Agreement is consistent with applicable Federal, State, and Tribal laws
and regulations;
(v) Implementation of the terms of the Candidate Conservation
Agreement will 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 Candidate Conservation Agreement.
[[Page 32716]]
(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 Candidate Conservation Agreement;
(ii) A requirement for the property owner to notify the Service at
least 30 days in advance, but preferably as far in advance as possible,
of when he or she expects to incidentally take any species covered
under the permit. Such notification will provide the Service with an
opportunity to translocate 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 Candidate Conservation Agreement.
(4) Permit effective date. Permits issued under this paragraph (d)
become effective for a species covered by a Candidate Conservation
Agreement 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
Candidate Conservation with Assurances Agreement is being properly
implemented, and apply only with respect to species adequately covered
by the Candidate Conservation with Assurances Agreement. These
assurances cannot be provided to Federal agencies.
(i) Changed circumstances provided for in the Agreement. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and were provided for in the
Agreement's operating conservation program, the permittee will
implement the measures specified in the Agreement.
(ii) Changed circumstances not provided for in the Agreement. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided
for in the Agreement's operating conservation program, the Director
will not require any conservation and mitigation 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. (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
Agreement 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 Agreement is
being properly implemented, but only if such measures are limited to
modifications within conserved habitat areas, if any, or to the
Agreement's operating conservation program for the affected species,
and maintain the original terms of the Agreement 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 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.
(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
Candidate Conservation with Assurances Agreement.
(7) Criteria for revocation. A permit issued under this paragraph
(d) may not be revoked for any reason except those set forth in
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation
of the permitted activity would be inconsistent with the criterion set
forth in paragraph (d)(2)(iii) of this section and the inconsistency
has not been remedied in a timely fashion.
(8) Duration of the Candidate Conservation Agreement. The duration
of a Candidate Conservation Agreement covered by a permit issued under
this paragraph (d) must be sufficient to enable the Director to
determine that the benefits of the conservation measures in the
Agreement, when combined with those benefits that would be achieved if
it is assumed that the conservation measures would also be implemented
on other necessary properties, would preclude or remove any need to
list the species covered by the Agreement.
Dated: May 11, 1999.
Donald J. Barry,
Assistant Secretary, Fish, Wildlife, and Parks, Department of the
Interior.
[FR Doc. 99-15255 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P
