[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Proposed Rules]
[Pages 32189-32194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15251]
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 /
Proposed Rules
[[Page 32189]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 17
RIN 1018-AD95
Safe Harbor Agreements and Candidate Conservation Agreements
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule contains the U.S. Fish and Wildlife
Service's (Service) proposed regulatory changes to 50 CFR part 17
necessary to implement two draft policies developed by the Service and
the National Marine Fisheries Service (NMFS) under the Endangered
Species Act (Act)--the Safe Harbor and Candidate Conservation Agreement
policies which are published elsewhere in this issue of the Federal
Register. NMFS will develop separate regulatory changes to implement
these policies. In addition, the Service proposes technical amendments
to its general regulations (50 CFR part 13) which are applicable to all
of its various permitting programs. These proposed revisions would
clarify the application of existing general permit conditions to the
permitting procedures associated with Habitat Conservation Plans, Safe
Harbor Agreements and Candidate Conservation Agreements issued under
section 10 of the Act.
DATES: Comments on the proposed rule must be received by August 11,
1997.
ADDRESSES: Send any comments or materials concerning the proposed rule
to the 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). You may examine comments and materials
received during normal business hours in room 452, Arlington Square
Building, 4401 North Fairfax Drive, Arlington, Virginia. You must make
an appointment to examine these materials.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species (Telephone (703/358-2171).
SUPPLEMENTARY INFORMATION:
Background
These proposed regulations only apply to the U.S. Fish and Wildlife
Service and in no way apply to the National Marine Fisheries Service.
Therefore, the use of the term Service within these proposed regulatory
changes refers to the U.S. Fish and Wildlife Service exclusively.
The Service administers a variety of conservation laws that
authorize the issuance of certain permits for otherwise prohibited
activities. In 1974, the Service published Part 13 of Title 50 of the
Code of Federal Regulations 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. The
Service 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, the Service added
many wildlife regulatory programs to Title 50 of the Code of Federal
Regulations. For example, the Service 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.
Congress amended section 10(a)(1) of the Act in 1982 to authorize
incidental take permits associated with habitat conservation planning
(HCP). Many HCP permits involve long-term conservation commitments that
run with the affected land for the life of the permit. The Service
negotiates 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 the Service 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. The Service
again does not view this as a problem so long as the original agency
permittee abides by, and ensures compliance with, the terms of the HCP.
While the above HCP scenarios are proper and consistent with the
requirements of section 10(a) of the Act and part 17, they are not as
easily reconcilable with certain sections of part 13. For example,
sections 13.24 and 13.25 of Title 50 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 under Part 13 under so-called
``Safe Harbor'' or Candidate Conservation Agreements (see draft Safe
Harbor and Candidate Conservation Agreement policies also published in
today's Federal Register). 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 when 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., section 13.24 and 13.25) as impediments to
the development of these agreements. In light of potential problems
such as these, the Service is proposing to modify Part 13 to redefine
its relationship with HCP permits and Safe Harbor and Candidate
Conservation ``enhancement of survival'' permits under Part 17.
To address these issues, the Service proposes several changes in
Part 13. First, the Service proposes to modify section 13.3 by
identifying and clarifying that, in case of a conflict between general
permit provisions in part 13 and more specific terms or conditions in a
HCP permit and its accompanying habitat conservation plan or
implementation agreement, the more specific provisions in the HCP
permit and accompanying documents would control. Similarly, in the case
of a conflict between general provisions in part 13 and terms or
conditions under a Safe Harbor or Candidate Conservation Agreement and
its accompanying part
[[Page 32190]]
17 ``enhancement of survival'' permit, the provisions of the part 17
``enhancement of survival'' permit and the Agreement would control.
Thus, while part 13 would generally apply to HCP and enhancement of
survival permits, the more detailed and specific terms and conditions
of a permit issued under part 17 would apply when there is a conflict.
Reviewers should note that the Service proposed amendments to
section 13.3 (Scope of Regulations) on September 5, 1995 (60 FR 46087).
Those changes, among other things, provided an explanation of the term
``permit'' (needed to reference the requirements applicable to the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES) correctly), to state the scope of its requirements
clearly, and to ensure that the titles of several parts of Title 50 of
the Code of Federal Regulations are up-to-date. However, the September
5, 1995, proposal did not deal with the potential conflicts between the
general provisions included in part 13 with specific provisions for
incidental take and enhancement of survival permits under part 17. The
present proposal in no way amends the language included in the
September 5, 1995, proposal.
The Service also proposes to add four new sub-sections to part 17.
These sub-sections would provide specific guidance for 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. This would avoid confusion
with any other type of permits issued under part 17 and provides clear
guidance on the specific applicable criteria for Safe Harbor and
Candidate Conservation Agreements through the enhancement of survival
provisions of the Act. The Act requires the Secretary of Interior to
establish and implement programs to conserve declining species of fish,
wildlife, and plants so as to prevent their extinction. The proposed
regulations for Safe Harbor and Candidate Conservation Agreements are
aimed at implementing such programs. The proactive nature of these
programs, the regulatory certainty they provide participating property
owners, and their conservation benefits truly reflect the overall
purposes of the Act and fall within the Service's responsibilities for
utilizing its authorities and responsibilities to further the
conservation mandate of the Act. Section 10(a)(1)(A) enhancement of
survival permits provide the best mechanism for implementing the Safe
Harbor and Candidate Conservation Agreement programs.
Overview of Safe Harbor and Candidate Conservation Programs
The information below briefly describes these two programs. For
more details on these two programs see the two draft policies also
published elsewhere in this issue of the Federal Register.
Much of the nation's current and potential habitat for listed,
proposed, and candidate species exists on non-Federal lands, owned by
private citizens, States, municipalities, Native American 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 are willing to voluntarily manage their lands to
benefit fish, wildlife, and plants, especially those that are
declining. Such voluntary management actions are not required by the
Act. Thus, failure to conduct such management would not violate any of
the Act's provisions. 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 possible future
uncertainty relative to land-use restrictions that may 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.
Concern centers primarily on the applicability of the section 9
``take'' prohibitions if listed species occupy their lands and on
future land-use restrictions that may result from their conservation-
oriented land management actions if other species are listed. The
potential for future restrictions has led 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. Safe Harbor Agreements
encourage proactive conservation efforts for listed species by private
and other non-Federal property owners while providing property owners
certainty relative to future property-use restrictions if their efforts
attract listed species onto their properties or areas affected by
actions undertaken on their property or increase the numbers or
distribution of listed species already present on their properties.
These voluntary Safe Harbor Agreements will be developed between the
Services and private and other non-Federal property owners. The
Services 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. Under a Safe Harbor Agreement, participating
property owners would voluntarily undertake management activities on
their property to enhance, restore, or maintain habitat benefiting
federally listed species.
The ultimate goal of Candidate Conservation Agreements is, to the
extent feasible and controllable by the property owner, to remove
enough threats to the covered species so as to nullify the 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 may 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 require 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, if undertaken on a broad enough scale by other property
owners similarly situated, should be expected to preclude the need for
listing species covered by the Agreement as threatened or endangered
under the Act.
Required Determinations
A major purpose of this proposed rule is the facilitation of
voluntary cooperative programs for the proactive management of non-
Federal lands and waters for the benefit of candidate, proposed, and
listed species. From the Federal government's perspective,
implementation of this rule would result in minor expenditures (e.g.,
providing technical assistance in the development of site-specific
management plans). The benefits derived from such management actions on
non-Federal lands and waters would
[[Page 32191]]
significantly advance the recovery of listed species or remove threats
to candidate, proposed, or other unlisted species. Non-Federal program
participants would be provided regulatory certainty as a result of
their voluntary management actions. In some cases, such participants
may incur minor expenditures to carry out some management actions on
their lands or involving their water. The Service has determined that
the proposed rule would not result in significant costs of
implementation to the Federal government or to non-Federal program
participants.
The Assistant Secretary for the Department of Interior certified to
the Chief Counsel for Advocacy of the Small Business Administration
that a review under the Regulatory Flexibility Act of 1980 (5 U.S.C.
601 et seq.) has revealed that this rulemaking would not have a
significant effect on a substantial number of small entities, which
includes businesses, organizations, or governmental jurisdictions.
Because of the completely voluntary nature of the Safe Harbor or
Candidate Conservation program, no significant effects are expected on
non-Federal cooperators exercising their option to enter into a Safe
Harbor or Candidate Conservation Agreement. Therefore, this rule would
have minimal effect on such entities. This rule was not subject to
review by the Office of Management and Budget under Executive Order
12866.
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this proposed rule will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities. The Department has determined
that these proposed regulations meet the applicable standards provided
in sections 3(a) and 3(b)(2) of Executive Order 12988.
Information Collection
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Service is submitting the necessary paperwork to OMB for
renewal of approval number 1018-0022, which expires July 31, 1997 to
collect this information. The Service will not continue to collect the
information until approved by OMB and a final regulation is published.
The proposed information collection requirement will be used to
administer these programs and, particularly in the issuance of permits.
The Service intends to collect the information through the use of the
Federal Fish and Wildlife Permit Application, Service form number 3-
200.54, which the Service modified pursuant to 50 CFR 13.21(b) to
address the specific requirements of the proposed rule, and at the
request of OMB. The information requested in the application form will
be required to obtain a benefit, and to determine if the applicant
meets all the permit issuance criteria.
The applicants will be non-Federal property owners, working with
Federal officials, wishing to manage their lands or waters to provide a
conservation benefit to endangered and threatened species, but who also
do not want to incur future additional regulatory requirements as a
result of their conservation-oriented activities. The annual number of
applicants is estimated to be 50. The public reporting burden for this
collection of information is estimated to average two and one-half
hours per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining data needed,
and completing and reviewing the collection of information, yielding an
annual burden of 125 hours.
Comments are invited from the public on: (1) Whether the collection
of information is necessary for the proper performance of the function
of the Service, including whether the information will have practical
utility; (2) the accuracy of the Service's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used; (3) the quality, utility, and clarity
of the information to be collected; and (4) How to minimize the burden
of the collection of information on those who are to respond, including
the use of appropriate automated electronic, mechanical, or other forms
of information technology.
Public Comments Solicited
The Service submits for public comment this proposed rule.
Particularly, comments are sought on:
(1) The proposed procedures or methods for implementing the
Service's Safe Harbor and Candidate Conservation policies to further
the purposes of the Act;
(2) Alternative means for providing regulatory assurances to
property owners who enter Safe Harbor or Candidate Conservation
Agreements; and
(3) The proposed regulatory changes to 50 CFR parts 13 and 17.
The Service is also requesting comments on the revised Federal Fish
and Wildlife Permit Application, Service form number 3-200.54. Copies
of the proposed information collection requirements, related forms, and
explanatory material may be obtained from, and comments should be
submitted to the Service's Information Collection Clearance Officer at
the U.S. Fish and Wildlife Service, MS 224-ARLSQ, 1849 C Street, NW.,
Washington, D.C., 20240; or by calling and requesting information at
703/358-1943.
The Service will take into consideration the comments and any
additional information received by the Service by August 11, 1997, and
such will be considered in the development of a final rule.
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, the Service proposes to
amend Title 50, Chapter I, subchapter B of the Federal Code of
Regulations, as set forth below:
PART 13--[AMENDED]
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a; 704, 712; 742 j-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 13.3 is revised to read as follows:
Sec. 13.3 Scope of regulations.
The provisions in this part are in addition to, and are not in lieu
of, other permit regulations of this subchapter and apply to all
permits issued thereunder, including ``Importation, Exportation and
Transportation of Wildlife'' (part 14), ``Wild Bird Conservation Act''
(part 15), ``Injurious Wildlife'' (part 16), ``Endangered Wildlife and
Plants'' (part 17), ``Marine Mammals'' (part 18), ``Migratory Bird
Permits'' (part 21), ``Eagle Permits'' (part 22), and ``Endangered
Species Convention'' (the Convention on International Trade in
Endangered Species of Wild Fauna and Flora) (part 23) except as
provided in Sec. 13.22(c). However, in the case of a conflict between
general provisions of this part and specific provisions, conditions, or
procedures contained in either an incidental take permit and its
accompanying habitat conservation plan
[[Page 32192]]
or agreement under Sec. 17.22(b) or 17.32(b) of this title, or in a
safe harbor agreement through an enhancement of survival permit under
Sec. 17.22(c) or 17.32(c) or candidate conservation agreement through
an enhancement of survival permit under Sec. 17.22(d) or 17.32(d) of
this title, the specific provisions, conditions, or procedures of the
incidental take permit and its accompanying habitat conservation plan
or agreement, or the safe harbor or candidate conservation agreements
through an enhancement of survival permit and accompanying document,
will control. As used in this part 13 the term ``permit'' will refer to
a license, permit, or certificate as the context may require and to all
such documents issued by the Service or other authorized United States
or foreign government agencies.
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Sec. 17.22 is amended by redesignating paragraph (c) as
paragraph (e) and adding new paragraphs (c) and (d) to read as follows:
Sec. 17.22 Permits for scientific purposes, enhancement of propagation
or survival, or for incidental taking.
* * * * *
(c)(1) Application requirements for permits for the enhancement of
survival through safe harbor agreements. You 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 you
reside or where the proposed activity is to occur (for appropriate
addresses see 50 CFR 10.22) if you wish to engage in any activity
prohibited by Sec. 17.21. You must submit an official application form
(3-200.54) provided by the Service and must include as an attachment
all of 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 the
agreed upon baseline conditions;
(iii) A description of management activities that the applicant
will voluntarily undertake or forgo that will provide a net
conservation benefit to covered species and a description of how such
activities will provide a net conservation benefit to the affected
species by contributing to the recovery of listed species covered by
the permit; and,
(iv) A description of regulatory assurances requested by the
applicant.
(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 must consider the
general issuance criteria in Sec. 13.21(b) of this subchapter and may
issue the permit if he or she expects or finds:
(i) The take to be incidental to an otherwise lawful activity and
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;
(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 State 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 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, 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) 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.
(5) Permit effective date. Permits issued under this paragraph (c)
become effective the day of issuance for species covered by the safe
harbor agreement.
(d)(1) Application requirements for permits for the enhancement of
survival through candidate conservation agreements. You 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
you reside or where the proposed activity is to occur (for appropriate
addresses see 50 CFR 10.22). You must apply for an enhancement of
survival permit application when the agreement is finalized, not at the
time of species' listing, if you wish to engage in any activity
prohibited by Sec. 17.21 after a candidate, proposed, or other unlisted
species likely to become a candidate or proposed species in the near
future and are covered in a candidate conservation agreement is listed
as an endangered species. You must submit an official application form
(3-200.54) provided by the Service and must include as an attachment
all of 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;
(iii) A description of the conservation and enhancement activities
to be voluntarily undertaken by the permit applicant and how those
activities are expected to be sufficient to remove the threat(s) to
proposed, candidate, or other unlisted species that may become a
candidate or proposed species in the near future and are covered by the
candidate conservation agreement if such actions were undertaken by
other property owners similarly situated within the range of the
species; and
(iv) A description of regulatory assurances requested by the
applicant.
[[Page 32193]]
(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 must consider the
general issuance criteria in Sec. 13.21(b) of this subchapter and may
issue the permit if he or she expects or finds:
(i) The take to be incidental to an otherwise lawful activity and
to be in accordance with the terms of the candidate conservation
agreement;
(ii) The implementation of the terms of the candidate conservation
agreement are expected to be sufficient to remove the threat(s) to
proposed, candidate, or other unlisted species that may become a
candidate or proposed species in the near future and are covered by the
agreement if such actions were undertaken by other property owners
similarly situated within the range of the species. This does not mean
that an individual permittee is responsible for bearing the entire
conservation needs of covered species included in an enhancement of
survival permit; rather, if similarly situated property owners
undertook the same sort of conservation activities within the range of
the species, the need to list would be obviated.
(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 will not be in conflict with any ongoing conservation
programs for species covered by the permit;
(v) Implementation of the terms of the candidate conservation
agreement is consistent with applicable State laws and regulations; and
(vi) The applicant has shown capability 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, 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
individual 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) 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 remove threat(s) to proposed,
candidate, or other unlisted species that may become a candidate or
proposed species in the near future and are covered by a candidate
conservation agreement. The duration of the candidate conservation
agreement can vary, however, assurances are only provided when the
agreement is in effect.
(5) 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.
* * * * *
Subpart D--Threatened Wildlife [Amended]
3. In section 17.32 paragraphs (c) and (d) are added to read as
follows:
Sec. 17.32 Permits--general.
* * * * *
(c)(1) Application requirements for permits for the enhancement of
survival through safe harbor agreements. You 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 you
reside or where the proposed action is to occur (for appropriate
addresses see 50 CFR 10.22) if you wish to engage in any activity
prohibited by Sec. 17.31. You must submit an official application form
(3-200.54) provided by the Service and must include as an attachment
all of 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 the
agreed upon baseline conditions;
(iii) A description of management activities that the applicant
will voluntarily undertake or forgo that will provide a net
conservation benefit to covered species; and,
(iv) A description of regulatory assurances requested by the
applicant.
(2) Public review. 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).
(3) 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 must consider the
general issuance criteria in Sec. 13.21(b) of this subchapter and may
issue the permit if he or she expects or finds:
(i) The take to be incidental to an otherwise lawful activity and
to 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 species by
contributing to the recovery included in the permit;
(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 State laws and regulations;
(v) Implementation of the terms of the safe harbor agreement will
not be in conflict with any ongoing conservation programs for species
covered by the permit; and
(vi) The applicant has shown capability and commitment to
implementing all of the terms of the safe harbor agreement.
(4) Permit conditions. In addition to any applicable general permit
conditions set forth in Part 13 of this subchapter, every permit issued
under this paragraph 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, as
far in advance as possible, of when he or she expects to take any
listed species covered under the permit. Such notification will provide
the Service with an opportunity to translocate affected individual of
the species, if possible and appropriate; and
(iii) Any additional requirements or conditions the Director deems
necessary
[[Page 32194]]
or appropriate to carry out the purposes of the permit and the safe
harbor agreement.
(5) Duration of permits. The duration of permits issued under this
paragraph (c) must be sufficient to provide a net conservation benefit
to listed 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 enhancement of survival permit.
(6) Permit effective date. Permits issued under this paragraph (c)
become effective the day of issuance for a species covered by the safe
harbor agreement.
(d)(1) Application requirements for permits for the enhancement of
survival through candidate conservation agreements. You 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
you reside or where the proposed activity is to occur (for appropriate
addresses see 50 CFR 10.22). You must apply for an enhancement of
survival permit application when the agreement is finalized, not at the
time of species' listing, if you wish to engage in any activity
prohibited by Sec. 17.31 after a candidate, proposed, or other unlisted
species that may become listed in the near future and are covered in a
candidate conservation agreement is listed as a threatened species. The
permit will become valid if and when covered proposed, candidate or
other unlisted species is listed as a threatened species. You must
submit an official application form (3-200.54) provided by the Service
and must include as an attachment all of 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;
(iii) A description of the conservation and enhancement activities
to be voluntarily undertaken by the permit applicant and how those
activities are expected to be sufficient to remove the threat(s) to
proposed, candidate, or other unlisted species that may become a
candidate or proposed species and are covered by the candidate
conservation agreement, if such action were undertaken by other
property owners similarly situated within the range of the species;
and,
(iv) A description of the regulatory assurances requested by the
applicant.
(2) Public review. 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).
(3) 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 must consider the
general issuance criteria in Sec. 13.21(b) of this subchapter and may
issue the permit if he or she expects or finds:
(i) The take to be incidental to an otherwise lawful activity and
to be in accordance with the terms of the candidate conservation
agreement;
(ii) The implementation of the terms of the candidate conservation
agreement are expected to be sufficient to remove the threat(s) to
proposed, candidate, or other unlisted species that may become a
candidate or proposed species and are covered by the agreement if such
actions were undertaken by other property owners similarly situated
within the range of the species. This does not mean that an individual
permittee is responsible for bearing the entire conservation needs of a
proposed, candidate, or other covered unlisted species included in an
enhancement of survival permit; rather, if similarly situated property
owners undertook the same sort of conservation actions within the range
of the species, the need to list would be obviated.
(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 will not be in conflict with any ongoing conservation
programs for species covered by the permit;
(v) Implementation of the terms of the candidate conservation
agreement is consistent with applicable State laws and regulations; and
(vi) The applicant has shown capability and commitment to
implementing all of the terms of the candidate conservation agreement.
(4) Permit conditions. In addition to any applicable general permit
conditions set forth in part 13 of this subchapter, every permit issued
under this paragraph 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, 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
individual 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.
(5) 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 remove threat(s) to proposed,
candidate, or other unlisted species covered by a candidate
conservation agreement. The duration of the candidate conservation
agreement can vary, however, assurances are only provided when the
agreement is in effect.
(6) Permit effective date. Permits issued under this paragraph (d)
become effective on the effective date of a final rule that lists a
species covered by a candidate conservation agreement and included in a
permit as threatened.
Dated: May 23, 1997.
Donald J. Barry,
Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of
Interior.
[FR Doc. 97-15251 Filed 6-9-97; 1:26 pm]
BILLING CODE 4310-55-P
