[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8380-8396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02690]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 17
[Docket No. FWS-HQ-ES-2021-0152; FF09E41000 223 FXES111609C0000]
RIN 1018-BF99
Endangered and Threatened Wildlife and Plants; Enhancement of
Survival and Incidental Take Permits
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Proposed rule; request for public comments.
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SUMMARY: We, the U.S. Fish Wildlife Service (Service), propose to
revise the regulations concerning the issuance of enhancement of
survival and incidental take permits under the Endangered Species Act
of 1973, as amended. The purposes of these revisions are to clarify the
appropriate use of enhancement of survival permits and incidental take
permits; clarify our authority to issue these permits for non-listed
species without also including a listed species; simplify the
requirements for enhancement of survival permits by combining safe
harbor agreements and candidate conservation agreements with assurances
into one agreement type; and include portions of our five-point
policies for safe harbor agreements, candidate conservation agreements
with
[[Page 8381]]
assurances, and habitat conservation plans in the regulations to reduce
uncertainty. We also propose to make technical and administrative
revisions to the regulations. The proposed regulatory changes are
intended to reduce costs and time associated with negotiating and
developing the required documents to support the applications. We
anticipate that these improvements will encourage more individuals and
companies to engage in these voluntary programs, thereby generating
greater conservation results overall.
DATES:
Comments: We will accept comments from all interested parties until
April 10, 2023. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES, below), the deadline for submitting
an electronic comment is 11:59 p.m. eastern time on this date.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to the Service Information Collection Clearance Officer, U.S. Fish and
Wildlife Service, (see ``Information Collection'' section below under
ADDRESSES) by April 10, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-0152,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-HQ-ES-2021-0152, U.S. Fish and Wildlife
Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Information Collection Requirements: Send your comments on the
information collection request by mail to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email
to Info_Coll@fws.gov; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number
1018-0094 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Lisa Ellis, Chief, Branch of Recovery
and Conservation Planning, U.S. Fish and Wildlife Service, 5275
Leesburg Pike, Falls Church, VA 22041-3803; telephone: 703-358-2307.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
et seq.), states that its purposes are to provide a means to conserve
the ecosystems upon which listed species depend, to develop a program
for the conservation of listed species, and to achieve the purposes of
certain treaties and conventions. Moreover, the ESA states that it is
the policy of Congress that the Federal Government will seek to
conserve endangered and threatened species and use its authorities to
further the statutory purposes (16 U.S.C. 1531(c)(1)). The regulations
implementing the ESA are in title 50 of the Code of Federal Regulations
(CFR).
The 1982 ESA amendments added section 10(a) to provide a mechanism
for issuance of permits to non-Federal entities to authorize take of
listed species that would otherwise be prohibited under section 9.
Section 10(a)(1)(A) provides for the issuance of enhancement of
survival permits associated with conservation actions that are
beneficial to the species included on the permit.
In 1999 we promulgated regulations (at 50 CFR 17.22(c) and (d) and
50 CFR 17.32(c) and (d)) and finalized policies regarding safe harbor
agreements (SHAs) and candidate conservation agreements with assurances
(CCAAs) to incentivize the use of enhancement of survival permits to
further species recovery and conservation (64 FR 32706, 32717, and
32726; June 17, 1999).
We published minor corrections to the SHA and CCAA regulations
later in 1999 (64 FR 52676, September 30, 1999) and again in 2004 (69
FR 24084, May 3, 2004). In 2016, we revised the CCAA regulations at
Sec. Sec. 17.22(d) and 17.32(d) (81 FR 95053, December 27, 2016) and
policy (81 FR 95164, December 27, 2016) to simplify the net
conservation benefit standard as part of the issuance criteria.
Section 10(a)(1)(B) of the ESA allows for the issuance of
incidental take permits to authorize take that is incidental to, but
not the purpose of, carrying out otherwise lawful activities, provided
the application meets the statutory issuance criteria (16 U.S.C.
1539(a)(2)(A)(i)-(iv)). In 1985, we promulgated regulations under
section 10(a)(1)(B) (at 50 CFR 17.22(b) and 17.32(b), per 50 FR 39681,
September 30, 1985). In 1996 we issued guidance in the form of the
Habitat Conservation Planning and Incidental Take Permitting Processing
Handbook (61 FR 63854, December 2, 1996). We published an addendum to
the handbook as the ``five-point policy'' in 2000 (65 FR 35242, June 1,
2000), and we published a revised Habitat Conservation Planning
Handbook in 2016 (81 FR 93702, December 21, 2016).
This proposed revision to the implementing regulations for section
10 is related to enhancement of survival permits supported by SHAs and
CCAAs (Sec. Sec. 17.22(c) and (d) and 17.32(c) and (d)) and to
incidental take permits supported by a conservation plan, also known as
a habitat conservation plan (Sec. Sec. 17.22(b) and 17.32(b)). This
rulemaking also proposes changes to relevant portions of 50 CFR part 13
(which applies to all Service permits) and part 17 (which applies to
all Service permits under the ESA). As part of this rulemaking, the
Service will consider whether additional modifications to section
10(a)(1)(A) and 10(a)(1)(B) regulations would improve, clarify, or
expedite the administration of the ESA.
The Service proposes to revise the regulations to reduce the time
it takes for applicants to prepare and develop the required documents
to support applications for section 10(a) permits, thus accelerating
permitting and conservation implementation. We propose to accomplish
this goal by:
clarifying the appropriate permit mechanism for
authorizing take;
simplifying our permitting options under section
10(a)(1)(A) by combining CCAAs and SHAs into one agreement type and
allowing the option to return to baseline;
providing additional flexibility under section 10(a)(1)(B)
to issue permits for non-listed species without a listed species also
on the permit; and
[[Page 8382]]
clarifying the requirements for complete applications
under both permitting authorities.
These changes should reduce costs and time associated with
negotiating and developing the required documents to support the
applications. We anticipate that these improvements will encourage more
individuals and companies to engage in these voluntary programs,
thereby generating greater conservation results overall.
We propose to clarify under which authority it is appropriate to
authorize the proposed take, either through an enhancement of survival
or incidental take permit. Enhancement of survival permits authorize
take of covered species, above the baseline condition, when the primary
purpose of the associated conservation agreement is to implement
beneficial actions that address threats to the covered species,
establish new wild populations, or otherwise benefit the covered
species. In contrast, incidental take permits authorize take that is
incidental to otherwise lawful activities (e.g., resource extraction,
commercial and residential development, and energy development); the
conservation actions in the associated conservation plan minimize and
mitigate the impacts of the authorized take. Maintaining this
distinction between these two permit types will ensure take is sought
through and authorized under the proper authority, reduce confusion,
and expedite the permitting process.
This proposal clarifies that enhancement of survival and incidental
take permits can be issued for non-listed species without including a
listed species on the permit. Immediately upon permit issuance, the
permittee would begin implementing the conservation commitments for the
non-listed covered species. However, the take authorization would not
go into effect until such time as the non-listed covered species
becomes listed, either as endangered or threatened, provided the
permittee is complying with the permit and properly implementing the
agreement or plan. This approach is consistent with both (1)
enhancement of survival permits currently issued for non-listed species
under 50 CFR 17.22(d) or 17.32(d) and supported by a CCAA; and (2)
incidental take permits currently issued under 50 CFR 17.22(b) or
17.32(b) supported by a conservation plan that includes both listed and
non-listed species. Our approach furthers the statutory purposes of the
ESA by encouraging conservation of fish and wildlife before species
become depleted to the point that they require listing. We propose to
simplify the ESA section 10(a)(1)(A) regulations by covering both
listed and non-listed species for enhancement of survival permits under
Sec. Sec. 17.22(c) and 17.32(c), and by rescinding the CCAA
regulations under Sec. Sec. 17.32(d) and 17.32(d).
We are proposing to clarify the language in both Sec. Sec.
17.22(b) and (c) and 17.32(b) and (c) to emphasize that our authority
extends to authorizing take that would otherwise be prohibited under
section 9 of the ESA, rather than to authorize the applicant's proposed
conservation activities or the otherwise lawful activities that may
result in take of a covered species. In other words, the issuance of
enhancement of survival or incidental take permits does not authorize
the covered activities themselves, but instead authorizes only the take
of covered species resulting from those activities. This clarification
is proposed at Sec. Sec. 17.22(b)(1) and 17.32(b)(1) for regulations
related to section 10(a)(1)(B) permits and at Sec. Sec. 17.22(c)(1)
and 17.32(c)(1) for regulations related to section 10(a)(1)(A) permits.
We further clarify what constitutes a complete application for
enhancement of survival and incidental take permits and that the
Service will process an application when we have determined it to be
complete.
Under section 10(a)(1)(A), we propose regulation changes that
combine the SHA and CCAA into one type of conservation agreement, also
known as a conservation benefit agreement. We use the term
``conservation benefit agreement'' to describe the supporting document
required for an enhancement of survival permit. The goal of this
proposed change is to simplify the process for new conservation benefit
agreements developed in support of enhancement of survival permit
applications. We are also proposing that applicants for an enhancement
of survival permit would have the option, currently available in an
SHA, to return the property to baseline conditions. We propose to
define ``baseline condition'' to mean the population estimates and
distribution or habitat characteristics on the enrolled land that
sustain seasonal or permanent use by the covered species at the time a
conservation benefit agreement is approved by the Service and executed
by the property owner or by a programmatic permit holder and the
property owner. Providing applicants with a choice whether to return to
baseline condition provides more flexibility in the agreement and may
increase participation. In addition, we clarify that the Service may
issue enhancement of survival permits that authorize both incidental
and purposeful take that may occur as a result of implementing
beneficial actions under the conservation benefit agreement, such as
reintroducing a species to a covered property or capturing and
relocating a covered species that may have dispersed to an adjacent
property not subject to the agreement. Once these proposed regulations
are finalized, the Service will no longer implement the SHA and CCAA
policies.
Under section 10(a)(1)(B), we propose to incorporate aspects of the
five-point policy for incidental take permits and guidance from the
2016 Habitat Conservation Planning Handbook into the regulations to
reduce confusion and streamline the process. Clarifications include a
description of the requirements for a complete incidental take permit
application and revisions to the corresponding incidental take permit
issuance criteria. Nothing in these proposed revisions to the
regulations is intended to require that any previous permits issued
under section 10(a)(1)(A) or (B) be reevaluated when this rule is
finalized. However, future applications for new permits, renewals, or
amendments would be subject to the revisions in the final rule.
Proposed Revisions to 50 CFR Part 13 and Part 17
Part 13 of title 50 of the Code of Federal Regulations sets forth
general permitting regulations that apply to all permits issued by the
Service. We are proposing changes to part 13 to address the specific
revisions we are seeking in Sec. Sec. 17.22 and 17.32, and to clarify
points of contention in the administration of permits under Sec. Sec.
17.22 and 17.32. Because this proposed rule would rescind Sec. Sec.
17.22(d) and 17.32(d), the references in part 13 to those paragraphs
would be removed and modified to reference the remaining paragraphs
(i.e., references to Sec. 17.22(b) through (d) would be changed to
Sec. 17.22(b) and (c) and references to Sec. 17.32(b) through (d)
would be changed to Sec. 17.32(b) and (c)).
Clarification of ESA Section 10(a)(1)(A) and (B)--Purpose
Section 10(a)(1)(A) authorizes the issuance of permits, under
certain terms and conditions, for any act otherwise prohibited by
section 9 for scientific purposes or to enhance the propagation or
survival of the affected species. In 1999, the Service further
clarified in Sec. Sec. 17.22(c) and (d) and 17.32(c) and (d) and the
SHA and CCAA policies that conservation actions to enhance the survival
of affected species would be permitted under section 10(a)(1)(A)
enhancement of survival permits. The permit is intended to incentivize
[[Page 8383]]
voluntary conservation by authorizing any take of covered species that
may result from implementing the approved conservation benefit
agreement and providing assurances that we will not require an
increased commitment or impose additional restrictions on the
permittee's use of land, water, or financial resources. As a result, a
property owner may continue ongoing activities and implement beneficial
conservation measures without concern that their activities may be
curtailed by increasing populations or distribution of a listed species
or a species that may become listed in the future. Therefore, property
owners managing or improving habitat that could be used by a species
that is listed or could be listed, or establishing new populations of
such species, have an incentive to continue their activities without
fear of being subjected to increased regulatory burdens in the future.
The authority granted under section 10(a)(1)(B) allows for the
issuance of a permit to authorize take that would otherwise be
prohibited by section 9(a)(1)(B), provided the taking is incidental to,
and not the purpose of, carrying out an otherwise lawful activity.
Under section 10(a)(1)(B), the impacts of the take associated with the
otherwise lawful activities must be minimized and mitigated to the
maximum extent practicable. The purpose is to provide a means for ESA
compliance when otherwise lawful development activities cause take of
listed species. In contrast, under section 10(a)(1)(A), the primary
purpose is to incentivize voluntary conservation of listed and at-risk
species.
Take Authorization for Non-Listed Species Under Section 10(a)(1)(A) and
(B)--Authorities and Rationale
The Service currently issues both enhancement of survival and
incidental take permits that cover take of listed as well as non-listed
species should they become listed in the future. These permits are
issued upon the Service's approval of the application. Implementation
of the conservation measures for the non-listed species begins upon
issuance of the permit. Should the non-listed species become listed,
the take authorization becomes effective upon the date of listing,
provided that the permittee is in full compliance with the enhancement
of survival or incidental take permit. This approach is supported in
the House of Representatives Report on the Endangered Species Act
Amendments of 1982 (Report number 97-835).
On June 17, 1999, the Service published the CCAA Policy (64 FR
32726) and implementing regulations at 50 CFR 17.22(d) and 17.32(d) (64
FR 32706) under section 10(a)(1)(A) of the Act for issuing enhancement
of survival permits for non-listed species. The Service further revised
this policy and the regulations in 2016 (81 FR 95053 and 95164;
December 27, 2016). Since the initial policy and regulations were
published, the Service has issued 65 enhancement of survival permits
for non-listed species in association with a CCAA; 59 of these continue
to be implemented.
Revising the regulations to clarify that we can issue permits that
address only non-listed species under section 10(a)(1)(B) is consistent
with congressional intent to provide long-term regulatory assurances
and builds on the success demonstrated by the CCAA program. Recognizing
our ability to authorize take of non-listed species under section
10(a)(1)(B) in the event that they become listed under the ESA, alone
or combined with listed species, will help to ensure that take is
authorized under the appropriate permit authority depending upon
whether it is associated with beneficial conservation actions or
otherwise lawful activities. We expect that this clarification will
reduce confusion and eliminate debate regarding the appropriate permit
authority by which take should be authorized, thereby allowing the
planning efforts to be focused on the permitting mechanism that is most
applicable to the project purpose. We acknowledge that the Habitat
Conservation Planning Handbook reflects current regulations and states
that applicants must include at least one ESA-listed species in a
conservation plan. If this proposed change is finalized, we intend to
update the handbook accordingly.
Clarifications
Service Authority Extends To Authorizing Take, Not Authorizing the
Activities
Existing language in Sec. 17.22(b)(1) and (c)(1) and Sec.
17.32(b)(1) and (c)(1) refers to authorizing activities that are
prohibited. The ESA prohibits take of listed species, not the
activities that cause take. Therefore, we propose language that will
clarify that, under these authorities, the Service authorizes take and
not the underlying activities themselves. We expect that this change
will reduce confusion among applicants and the interested members of
the public who review and provide comments on permit applications.
Expediting the Development of Conservation Benefit Agreements and
Conservation Plans
One of the common concerns expressed by applicants applying for a
permit under section 10(a)(1)(A) or (B) is the amount of time and
resource investment it takes to develop the necessary documents to
support the applications. The application process for an enhancement of
survival or incidental take permit is divided into three phases: (1)
pre-application (project proponent decides whether to apply for a
permit); (2) conservation benefit agreement or plan development and
submission of a complete application to the Service; and (3)
application processing (the Service processes the complete application
and makes a permit decision).
While the Service has successfully implemented measures to ensure
the efficient processing of permit applications once they are deemed
complete, we have not been as successful with expediting the pre-
application and conservation agreement or plan development phases
despite the updated guidance provided respectively in the 2016 Habitat
Conservation Planning Handbook and current SHA and CCAA regulations,
policies, and guidance. This outcome may be due to several factors,
such as the size and complexity of the proposed project; number of
species for which take is sought; and, in some cases, challenges to the
interpretation of our regulations, policies, and guidance. Resolving
issues that arise during development of the conservation agreement or
plan often requires the expenditure of a significant amount of time and
resources by both the applicant and the Service. This situation can
result in delays to the applicant's project implementation and limit
the Service's ability to provide timely assistance to other applicants.
To provide clarity, reduce confusion, and save time, both for
applicants and the Service, we propose to clarify the current
regulations and revise the requirements for permit applications in
Sec. 17.22(b)(1) and (c)(1) and Sec. 17.32(b)(1) and (c)(1) by
codifying portions of the 2016 Habitat Conservation Planning Handbook,
5-point policy, SHA policy, and CCAA policy, as applicable. These
clarifications address the requirements an applicant must meet for the
Service to: (1) determine that an application is complete, (2) publish
the receipt of a complete application, (3) begin processing the
application, and (4) make a permit decision consistent with section 10
of the ESA.
[[Page 8384]]
We also propose to refine the incidental take permit issuance
criteria under Sec. 17.22(b)(2) and Sec. 17.32(b)(2) for plans
permitted under ESA section 10(a)(1)(B) to align with the statute,
existing policy, and practice. We expect that these revisions, along
with the revised requirements for a complete application, will lead to
more efficient permit application processing and decision-making and
provide a better record supporting our permit decision. The issuance
criteria for conservation benefit agreements permitted under ESA
section 10(a)(1)(A) will remain unchanged, although we clarify the
meaning of ``net conservation benefit'' in the definitions section at
Sec. 17.3. The proposed revisions related to issuance criteria in
parts 13 and 17 are limited to permits issued under ESA section 10(a)
and do not address other statutes.
Permit Renewal and Amendment Processes
The Service proposes to clarify that permit renewals and
amendments, or a combination thereof, are subject to the current laws
and regulations. The application must be evaluated under current
policies and guidance in place at the time of the decision on the
renewal or amendment. For amendments to enhancement of survival or
incidental take permits, the scope of the Federal decision extends only
to the requested amendment, not the previously approved permit or
unchanged portions of the conservation benefit agreement or plan. The
terms of the original permit, including the take authorization and
assurances, remain in effect. The proposed amendment is the only change
that is considered. Providing these clarifications will reduce
confusion and burden and also reassure permittees applying for renewals
and amendments, thereby expediting development of a complete
application and processing of that application.
Public Comments
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to https://www.regulations.gov before 11:59 p.m. (eastern
time) on the date specified in DATES. We will not consider mailed
comments that are not postmarked on or before the date specified in
DATES.
We seek public comments on the proposed revisions to parts 13 and
17 of the ESA regulations in title 50 including, but not limited to,
revising or adopting as regulations existing practices or policies, or
interpreting terms or phrases from the ESA. Based on comments received
on this proposed rule and from our advance notice of proposed
rulemaking related to regulatory reform (77 FR 15352, March 15, 2012),
and on our experience in administering the ESA, the final rule may
include revisions to any provisions in parts 13 and 17 that are a
logical outgrowth of this proposed rule, consistent with the
Administrative Procedure Act (5 U.S.C. 551 et seq.).
We particularly seek comment on:
(1) The extent to which the changes outlined in this proposed rule
will affect timeframes and resources needed to plan and process
permits;
(2) anticipated cost savings resulting from the proposed changes,
if any;
(3) the impact to the conservation delivered through these permit
programs; and
(4) specific language that would be a logical outgrowth of these
proposed changes that would enhance our ability to meet the goals and
objectives of these proposed regulatory revisions.
We also seek public comment and data on the amount of privately
held land that contains listed and non-listed species and that could
potentially be permitted under these proposed regulatory revisions and
on the potential for an increase in permit applications, particularly
in response to the proposed provision regarding return to baseline.
Providing applicants with a choice whether to return to baseline
condition provides more flexibility in the agreement and may increase
participation. In addition to reviewing any public comments received on
these issues, we will attempt to identify data sources to inform
conclusions about the direction and possible magnitude of increased
participation in this permitting program.
We will post your entire comment-- including your personal
identifying information--on https://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting documentation
we used in preparing this proposed rule, will be available for public
inspection on https://www.regulations.gov.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this
proposed rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This proposed rule is consistent with E.O.
13563, and in particular with the requirement of retrospective analysis
of existing rules to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or their designee, certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We have determined that, if
adopted as proposed, this proposed rule would not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The proposed rule, if adopted, would revise the implementing
regulations to clarify existing statutory requirements
[[Page 8385]]
that govern the Service's processing of applications for section 10(a)
permits. The proposed rule would not significantly change the way we
currently implement the section 10 program or expand the reach of
species protections. To the extent the revisions relate to the
documents required to support a permit application, they clarify the
requirements for those documents but do not impose additional
requirements that would result in significant increased costs to small
entities. For example, the ESA requires applicants to ensure that
adequate funding will be available to implement a conservation plan. In
the proposed rule, we clarify that applicants for certain conservation
plans must provide a financial analysis by an independent, qualified
third party. Even if there are some increased costs associated with
meeting this or other requirements in the proposed rule, we anticipate
that those costs will be offset by the revisions streamlining and
clarifying the application and decision-making process, which will save
applicants and permittees time and money. Therefore, no external
entities, including any small businesses, small organizations, or small
governments, will experience significant economic impacts from this
rule. Because we certify that, if promulgated, this proposed rule will
not have a significant economic impact on a substantial number of small
entities, an initial regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not impose a cost of $100 million or
more in any given year on local or State governments or private
entities. A small government agency plan is not required. As explained
above, small governments would not be affected because the proposed
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or Tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
Tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this proposed rule (1) would not effectively
compel a property owner to suffer a physical invasion of property and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
endangered species, threatened species, and other non-listed species of
conservation concern) and would not present a barrier to all reasonable
and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to those entities
voluntarily applying for a permit under section 10 of the ESA and would
not have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule would not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify the needs
associated with development of the required documents to support an
application for a permit under section 10 of the ESA.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we are considering possible effects
of this proposed rule on federally recognized Indian Tribes. We will
continue to collaborate/coordinate with Tribes on issues related to
federally listed species and their habitats, and we will provide
notification of this proposed rule to federally recognized Tribes prior
to publication. See Joint Secretarial Order 3206 (``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act,'' June 5, 1997).
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains existing and new information
collections. All information collections require approval by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act of
1995 (PRA, 44 U.S.C. 3501 et seq.). We may not conduct or sponsor, and
you are not required to respond to, a collection of information unless
it displays a currently valid OMB control number. The OMB has reviewed
and approved the information collection requirements associated with
permit applications, reports, and related information collections
associated with native endangered and threatened species and assigned
the OMB Control Number 1018-0094 (expires 01/31/2024).
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with an opportunity to comment on our proposal to revise OMB
Control Number 1018-0094. This input will help us assess the impact of
our information collection requirements and minimize the public's
reporting burden. It will also help the public understand our
information collection requirements and provide the requested data in
the desired format.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology,
[[Page 8386]]
e.g., permitting electronic submission of response.
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
The Endangered Species Act (16 U.S.C. 1531 et seq.) was established
to provide a means to conserve the ecosystems upon which endangered and
threatened species depend, to provide a program for the conservation of
these endangered and threatened species, and to take the appropriate
steps that are necessary to bring any endangered or threatened species
to the point where measures provided for under the Act are no longer
necessary. Section 10(a)(1)(A) of the ESA authorizes us to issue
permits for otherwise prohibited activities in order to enhance the
propagation or survival of the affected species. Section 10(a)(1)(B) of
the ESA authorizes us to issue permits if the taking is incidental to
the carrying out of an otherwise lawful activity. ESA section 10(d)
requires that such permits be applied for in good faith and, if
granted, will not operate to the disadvantage of endangered species,
and will be consistent with the purposes of the Act.
All Service permit applications are tailored to a specific activity
based on the requirements for specific types of permits. We collect
standard identifier information for all applications for permits, such
as the name of the applicant and the applicant's address, telephone
numbers, if applicable, tax identification number, email address,
description of activity being requested under the ESA, and, after the
permit has been issued, a report (description of activity that was
conducted under that permit). Standardization of general information
common to the application forms makes the filing of applications easier
for the public and helps to expedite our review.
The information that we collect is the minimum necessary for us to
determine if the applicant/permittee meets, or continues to meet,
permit issuance requirements. Respondents submit application forms
periodically as needed. Submission of reports is generally on an annual
basis, but for some activities (such as activities associated with sea
turtles), may be on a more frequent basis, as needed (see those
specific reporting forms). This information collection request includes
minor modifications to the layout and content of the currently approved
application forms so that they:
(a) Are easier to understand and complete,
(b) Minimize the number of completed pages the applicant must
submit, and
(c) Accommodate future electronic permitting in the Service's new
ePermits System.
In addition to the application forms, permit holders must submit
the reports in accordance with their permits issued based on 50 CFR
part 17. Some Service annual reports associated with permits are in the
3-202 series of forms, each tailored to a specific activity based on
the requirements for specific types of permits. In some cases, we
developed specific information collection forms to facilitate and
standardize the reporting and review, and to facilitate development of
electronic forms and electronic reporting and retrieval of that
information.
Annual reporting of permit compliance is required in most cases
under the authority of section 10(a)(1)(A) and 10(a)(1)(B) of the ESA
and its implementing regulations in 50 CFR part 17. These reports allow
us to evaluate the proper implementation of the conservation benefit
agreement or plan, ensure take authorization has not been exceeded,
formulate further research, and develop and adjust management and
recovery plans for the species.
The proposed revisions to existing and new reporting and/or
recordkeeping requirements identified below require approval by OMB:
(1) (REVISED) Application--FWS Form 3-200-54, ``Enhancement of
Survival Permits Associated with Conservation Benefit Agreements''--
This application can be used for a single species or multiple species.
Agreements may vary widely in size, scope, structure, and complexity,
and in the activities they address. We revised this application form to
align with the proposed regulation revisions, which includes
referencing one ``conservation benefit agreement'' instead of the two
prior agreement types, adding a question asking if the applicant
requests to return to baseline upon permit expiration, clarifying
language regarding nonsubstantive and substantive amendments, and
adding clarifying language regarding authorized agents.
(2) (NEW) Application Amendments--Enhancement of Survival Permits
(FWS Form 3-200-54)--Permittees may request amendments to a permit, or
the Service may amend a permit for just cause upon a written finding of
necessity. Amendments comprise changes to the permit authorization or
conditions. This includes, but is not limited to, an increase or
decrease in the estimated amount of take or changes in ownership of a
project. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These are considered substantive amendments and incur a fee.
Permittees do not require a new permit if there is a change in the
legal individual or business name, or in the mailing address of the
permittee. A permittee is required to notify the issuing office within
10 calendar days of such change. This provision does not authorize any
change in location of the conduct of the permitted activity when
approval of the location is a qualifying condition of the permit.
(3) (NEW) Permit Transfers--Enhancement of Survival Permits--
Permits issued under these regulations 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 permitted, the deceased
permittee's legal representative and the proposed transferee.
Transferring permits does not incur a fee.
(4) (NEW) Conservation Benefit Agreement-- As part of the
application process associated with Form 3-200-54, applicants must
submit a conservation benefit agreement. A conservation benefit
agreement must include the following:
i. Conservation Measures--A complete description of the
conservation measure or measures, including the location of the
activity or activities to be covered by the permit and their intended
outcome for the covered species.
ii. Covered Species--The common and scientific names of the covered
species for which the applicant will conduct conservation measures and
may need authorization for take.
iii. Goals and Objectives--The measurable biological goals and
objectives of the conservation measures in the agreement.
iv. Enrollment Baseline--The baseline condition of the property or
area to be enrolled.
v. Net Conservation Benefit--A description of how the measures are
reasonably expected to improve each covered species' existing baseline
[[Page 8387]]
condition on the enrolled land and result in a net conservation benefit
as defined at Sec. 17.3.
vi. Monitoring--The steps the applicant will take to monitor and
adaptively manage to ensure the goals and objectives of the agreement
are met, the responsibilities of all parties are carried out, and the
agreement will be properly implemented.
vii. Neighboring Property Owners--A description of the enrollment
process to provide neighboring property owners incidental take coverage
under 50 CFR 17.22(c)(5)(ii) or 17.32(c)(5)(ii), if applicable.
viii. Return to Baseline Condition--The applicant's choice between
including authorization to return enrolled land to baseline condition
or forgoing that authorization. For applicants seeking authority to
return to baseline condition, a description of steps that may be taken
to return the property to baseline condition and measures to reduce the
effects of the take to the covered species.
ix. Additional Actions--Any other measures that the Director may
require as necessary or appropriate in order to meet the issuance
criteria in 50 CFR 17.22(c)(2) or 17.32(c)(2) or to avoid conflicts
with other Service conservation efforts.
(5) (REVISED) Application--FWS Form 3-200-56, ``Incidental Take
Permits with Conservation Plan''--Those who believe their otherwise-
lawful activities will result in the ``incidental take'' of a listed
wildlife species may choose to seek a permit. The purpose of the
incidental take permit is to exempt non-Federal permittees--such as
States, local governments, businesses, corporations, and private
landowners--from the prohibitions of section 9, not to authorize the
activities that result in take. The permittee also has assurances from
the FWS through the ``No Surprises'' regulation. The application form
has a few revisions to be consistent with the proposed regulations,
which include clarifying minor amendments and removing any language
regarding implementing agreements.
(6) (NEW)Application Amendments--Incidental Take (FWS Form 3-200-
56)--Amendments to a permit may be requested by the permittee, or the
Service may amend a permit for just cause upon a written finding of
necessity. Amendments comprise changes to the permit authorization or
conditions. This includes, but is not limited to, an increase or
decrease in the requested amount of take or changes in ownership of a
project. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These are considered substantive amendments and incur a fee. A
permittee is not required to obtain a new permit if there is a change
in the legal individual or business name, or in the mailing address of
the permittee. A permittee is required to notify the issuing office
within 10 calendar days of such change. This provision does not
authorize any change in location of the conduct of the covered activity
when approval of the location is a qualifying condition of the permit.
(7) (NEW) Permit Transfers--Incidental Take--Permits issued under
these regulations 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 permitted, the deceased permittee's legal
representative and the proposed transferee. Transferring permits does
not incur a fee.
(8) (NEW) Conservation Plan--As part of the application process,
applicants are also required to submit a conservation plan with their
completed Form 3-200-56. A conservation plan must include the
following:
i. Project Description--A complete description of the project
including purpose, location, timing, and proposed covered activities.
ii. Covered Species--As defined in Sec. 17.3, common and
scientific names of species sought to be covered by the permit, as well
as the number of individuals to be taken and the age and sex of those
individuals, if known.
iii. Goals and Objectives--The measurable biological goals and
objectives of the conservation plan.
iv. Anticipated Take--Expected timing, geographic distribution,
type and amount of take, and the likely impact of take on the species.
v. Conservation Program, which explains the:
Conservation measures that will be taken to minimize and
mitigate the impacts of the incidental take for all covered species
commensurate with the taking;
Roles and responsibilities of all entities involved in
implementation of the conservation plan;
Changed circumstances and the planned responses in an
adaptive management plan; and
Procedures for dealing with unforeseen circumstances.
vi. Conservation Timing--The timing of mitigation relative to the
incidental take of covered species.
vii. Permit Duration--The rationale for the requested permit
duration.
viii. Monitoring--Monitoring of the effectiveness of the mitigation
and minimization measures, progress towards achieving the biological
goals and objectives, and permit compliance.
ix. Funding Needs and Sources--An accounting of the costs for
properly implementing the conservation plan and the sources and methods
of funding.
x. Alternative Actions--The alternative actions to the taking the
applicant considered and the reasons why such alternatives are not
being used.
xi. Additional Actions--Other measures that the Director requires
as necessary or appropriate, including those necessary or appropriate
to meet the issuance criteria or other statutory responsibilities of
the Service.
(9) (REVISED) Form 3-200-59, ``Recovery Permit Application Form''--
This application form is used to apply for a permit for any act
otherwise prohibited by section 9 for scientific purposes or to enhance
the propagation or survival of the affected species.
The data acquired from the issuance of recovery permits is valuable
to the decisions that the Service and its partners make regarding land
acquisition, land management, consultations under section 7 of the ESA,
recovery plans, and downlisting or delisting. Data from these federally
issued permits is used on a landscape level. Without recovery permits,
our basic knowledge about the abundance, stability, and resiliency of
populations, habitat use and requirements, geographic ranges, and
diseases of federally listed species would be much more limited.
Regulations at 50 CFR 13.25(a) and (b) prohibit permit transfers for
this permit type.
We revised Form 3-200-59 to fix typos, incorporate references to
ePermits, and update links to the FWS website.
(10) (REVISED) Form 3-200-60, Interstate Commerce Application
Form''--This application form is used to apply for an interstate
commerce permit that allows for take otherwise prohibited by section 9
of the ESA. Interstate commerce permits authorize the purchase and sale
of listed species across State lines. For wildlife, interstate commerce
permits are obtained by the buyer; for plants, the seller obtains the
permits. Regulations at 50 CFR 13.25(a) and (b) prohibit permit
transfers for this permit type.
We revised Form 3-200-60 to fix typos, incorporate references to
ePermits, update links to the FWS website, and add information in
section E (question A7) to ensure that applicants provide information
[[Page 8388]]
necessary for the permit decision as required by regulation.
(11) (NEW) Application Amendments (FWS Forms 3-200-59 and 3-200-
60)--Amendments to a permit may be requested by the permittee, or the
Service may amend a permit for just cause upon a written finding of
necessity. Amendments comprise changes to the permit authorization or
conditions. This includes, but is not limited to, an increase or
decrease in the estimated amount of take or changes in ownership of a
project. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These are considered substantive amendments and incur a fee. A
permittee is not required to obtain a new permit if there is a change
in the legal individual or business name, or in the mailing address of
the permittee. A permittee is required to notify the issuing office
within 10 calendar days of such change. This provision does not
authorize any change in location of the conduct of the permitted
activity when approval of the location is a qualifying condition of the
permit.
(12) (REVISED) Form 3-2530, ``California/Nevada/Klamath Basin, OR,
Recovery Permit Annual Summary Report Form''--We propose to change the
``TE'' field to ``permit number'' on each page of the form.
We also propose to renew the existing information collection
requirements identified below:
(1) Annual Reports (Enhancement of Survival Permit Associated with
Conservation Benefit Agreements)--Annual reports associated with
conservation benefit agreements are non-form requirements and are
required by Federal permitting regulations under 50 CFR 13.45, unless
otherwise specified in the permit. Reports contain information
regarding the implementation of conservation measures and the amount of
take that has occurred, both of which are essential to ensuring
compliance with the permit. Permittees may submit the information in
any format they choose.
(2) Notifications (Incidental Take)--Private landowners who have an
enhancement of survival permit (and accompanying conservation benefit
agreement) must notify us if their land management activities
incidentally take a listed or candidate species covered under their
permit.
(3) Notifications (Change in Land Owner)--We issue enhancement of
survival permits to the landowners, and their name is printed on the
permit. If ownership of the land changes, this permit does not
automatically transfer to the new landowner. Therefore, we ask the
permittee to notify us if there is a change in land ownership so that
we may update the permit.
(4) Annual Reports (Conservation Plans)--Annual reports associated
with conservation plans are non-form requirements and are required by
Federal permitting regulations under 50 CFR 13.45, unless otherwise
specified in the permit. Reports contain information regarding the
implementation of minimization and mitigation measures and the amount
of take that has occurred, both of which are essential to ensuring
compliance with the permit. Permittees may submit the information in
any format they choose.
(5) Annual Reports (Recovery/Interstate Commerce)--Annual reports
associated with recovery/interstate commerce permits are non-form
requirements and are required by Federal permitting regulations under
50 CFR 13.45, unless otherwise specified in the permit. Reports contain
information regarding the activities conducted under the permit and the
amount of take that has occurred, both of which are essential to
ensuring compliance with the permit. Permittees may submit the
information in any format they choose, and they may elect to use a
taxa-specific form if is available
(6) Request to Revise List of Authorized Individuals--When a new,
renewed, or amended permit is issued, the list of authorized
individuals (LAI) is typically at the end of a permit on Regional
Office letterhead. The LAI captures those expressly authorized to
perform otherwise prohibited activities on an active permit.
When a permittee requests changes to the individuals authorized on
a permit, the Field Office reviews the qualifications. It then issues
an updated standalone LAI with the new and current qualified
individuals. Issuance of a standalone LAI is considered an
administrative change to maintain an up-to-date list of those
authorized for the permit's species/activities. Since there are no
revisions to the previously authorized species or geographic localities
on the permit itself, the action is purely a streamlining measure for
the regions to manage the high volume of personnel changes without
issuing an amendment or new permit.
(7) Notification (Escape of Wildlife)--If a recovery or interstate
commerce permit authorizes activities that include keeping wildlife in
captivity, for health and safety reasons, we ask the permittee to
immediately notify us if any of the captive wildlife escape.
(8) Annual Reports Associated with Native Endangered and Threatened
Species Under the ESA--We use the following annual report forms
specific to particular species for activities associated with native
endangered and threatened species permits under the ESA. The Service
designed the forms to facilitate the electronic reporting specifically
for each species. The Service will use the reported data to evaluate
the success of the permitted project, formulate further research, and
develop and adjust management and recovery plans for the species. The
data will also inform 5-year reviews and species status assessments
conducted under the ESA.
Form 3-202-55b, ``U.S. Fish and Wildlife Service
Geographic Area: Midwestern Bat Reporting Form'';
Form 3-202-55c, ``U.S. Fish and Wildlife Service
Geographic Area: Southeastern Bat Reporting Form'';
Form 3-202-55d, ``U.S. Fish and Wildlife Service
Geographic Area: Northeastern Bat Reporting Form'';
Form 3-202-55e, ``U.S. Fish and Wildlife Service
Geographic Area: Plains/Rockies Bat Reporting Form'';
FWS Form 3-202-55f, ``Non-Releasable Sea Turtle Annual
Report''; and
FWS Form 3-202-55g, ``Sea Turtle Rehabilitation''.
We also utilize the following seven new reporting forms associated
with the recovery/interstate commerce portion of this information
collection:
Form 3-2523, ``Midwest Geographic Area: Freshwater Mussel
Reporting Form'';
Form 3-2526, ``Midwest Geographic Area: Bumble Bee
Reporting Form'';
Form 3-2530, ``California/Nevada/Klamath Basin, OR,
Recovery Permit Annual Summary Report Form'';
Form 3-2532, ``U.S. Fish and Wildlife Service Geographic
Area: Alaska Bat Reporting Form'';
Form 3-2533, ``U.S. Fish and Wildlife Service Geographic
Area: Northwestern Bat Reporting Form''; and
Form 3-2534, ``U.S. Fish and Wildlife Service Geographic
Area: Western Bat Reporting Form''.
Copies of the draft forms are available to the public by submitting
a request to the Service Information Collection Clearance Officer using
one of the methods identified in ADDRESSES.
Title of Collection: Federal Fish and Wildlife Permit Applications
and Reports--Native Endangered and Threatened Species; 50 CFR parts 10,
13, and 17.
OMB Control Number: 1018-0094.
Form Numbers: FWS Forms 3-200-54, 3-200-56, 3-200-59, 3-200-60, 3-
202-55a through 3-202-55g, 3-2523, 3-2526, 3-2530, and 3-2532 through
3-2534.
[[Page 8389]]
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Individuals; private sector; and
State/local/Tribal governments.
Total Estimated Number of Annual Respondents: 5,380.
Total Estimated Number of Annual Responses: 5,380.
Estimated Completion Time per Response: Varies from 30 minutes to
2,080 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 220,660.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion for applications; annually or
on occasion for reports and notifications.
Total Estimated Annual Nonhour Burden Cost: $19,415,460 (primarily
associated with application processing and administrative fees).
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to Info_Coll@fws.gov. Please reference OMB Control Number
1018-0094 in the subject line of your comments.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.), the Department of the Interior regulations on Implementation
of NEPA (43 CFR 46.10-46.450), and the Department of the Interior
Manual (516 DM 8).
We anticipate that the categorical exclusion found at 43 CFR
46.210(i) likely applies to the proposed regulation changes. At 43 CFR
46.210(i), the Department of the Interior has found that the following
categories of actions would not individually or cumulatively have a
significant effect on the human environment and are, therefore,
categorically excluded from the requirement for completion of an
environmental assessment or environmental impact statement: Policies,
directives, regulations, and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature; or whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively or case-by-case. When the Service
processes an application for an enhancement of survival permit or
incidental take permit, the decision is subject to the NEPA process at
that time. We invite the public to comment on the extent to which this
proposed rule may have a significant impact on the human environment or
fall within one of the categorical exclusions for actions that have no
individual or cumulative effect on the quality of the human
environment. We will complete our analysis, in compliance with NEPA,
before finalizing these proposed regulations.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
or use. Therefore, this action is a not a significant energy action,
and no statement of energy effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend parts 13 and 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 13--GENERAL PERMIT PROCEDURES
0
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
Subpart C--Permit Administration
0
2. Amend Sec. 13.23 by revising the section heading and paragraph (b)
to read as follows:
Sec. 13.23 Amendments of permits.
* * * * *
(b) Service amendment. 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 the amendment of a permit issued under
Sec. 17.22(b) or (c) or Sec. 17.32(b) or (c) of this subchapter will
be consistent with the requirements of Sec. 17.22(b)(5) and (c)(5) or
Sec. 17.32(b)(5) and (c)(5) of this subchapter, respectively.
* * * * *
0
3. Amend Sec. 13.24 by revising the section heading and paragraph (c)
introductory text to read as follows:
Sec. 13.24 Rights of succession by certain persons.
* * * * *
(c) In the case of permits issued under the regulations in this
subchapter in Sec. 17.22(b) and (c), Sec. 17.32(b) and (c), or 50 CFR
part 22, the successor's authorization under the permit is also subject
to our determination that:
* * * * *
0
4. Amend Sec. 13.25 by revising paragraphs (b) and (c) and the
introductory text of paragraph (e) to read as follows:
Sec. 13.25 Transfer of permits and scope of permit authorization.
* * * * *
(b) Permits issued under the regulations in this subchapter in
Sec. 17.22(b) and (c), Sec. 17.32(b) and (c), or 50 CFR part 22 may
be transferred to a successor subject to our determination that the
proposed transferee:
(1) Meets all of the qualifications under this part for holding a
permit;
(2) Has provided adequate written assurances of sufficient funding
for the conservation measures, conservation plan, or conservation
benefit agreement,
[[Page 8390]]
and will implement the relevant terms and conditions of the permit,
including any outstanding minimization and mitigation requirements; and
(3) Has provided other information that we determine is relevant to
the processing of the submission.
(c) In the case of the transfer of lands subject to an agreement
and permit issued under Sec. 17.22(c) or Sec. 17.32(c) of this
subchapter, the Service will transfer the permit to the new owner if
the new owner agrees in writing to become a party to the original
agreement and permit.
* * * * *
(e) In the case of permits issued under Sec. 17.22(b) and (c) or
Sec. 17.32(b) and (c) of this subchapter to a State, Tribal, or local
government entity, a person is under the direct control of the
permittee where:
* * * * *
0
5. Amend Sec. 13.28 by revising paragraph (a)(5) to read as follows:
Sec. 13.28 Permit revocation.
(a) * * *
(5) Except for permits issued under Sec. 17.22(b) and (c) or Sec.
17.32(b) and (c) 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.
* * * * *
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
6. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart A--Introduction and General Provisions
0
7. Amend Sec. 17.2 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through
(f); and
0
c. Adding a new paragraph (b).
The revision and addition read as follows:
Sec. 17.2 Scope of regulations.
(a) The regulations of this part apply only to endangered and
threatened wildlife and plants, except for Sec. 17.22(b) and (c) and
Sec. 17.32(b) and (c), which may apply to wildlife and plant species
that are not listed as endangered or threatened if they meet the
definition of ``covered species.''
(b) Permits authorized under this part include:
(1) Scientific purposes or enhancement of propagation or survival
permits for take associated with research, captive propagation
programs, or conservation activities to enhance and recover populations
of covered species; and
(2) Incidental take permits for take that is incidental to
otherwise lawful activities.
* * * * *
0
8. Amend Sec. 17.3 by:
0
a. Revising the definition for ``Adequately covered'';
0
b. Adding in alphabetical order definitions for ``Applicant'' and
``Baseline condition'';
0
c. Revising the definition for ``Changed circumstances'';
0
d. Adding in alphabetical order definitions for ``Covered activity'',
``Covered species'', ``Net conservation benefit'', ``Permit area'',
``Permittee'', ``Plan area'', ``Programmatic permit associated with a
conservation benefit agreement'', ``Programmatic permit associated with
a conservation plan'', and
0
e. Revising the definition for ``Property owner''.
The revisions and additions read as follows:
Sec. 17.3 Definitions.
* * * * *
Adequately covered means, with respect to species listed pursuant
to section 4 of the Act, that a proposed conservation plan has
satisfied the permit issuance criteria under section 10(a)(2)(B) of the
Act for the species covered by the plan, and, with respect to non-
listed species, that a proposed conservation plan has satisfied the
permit issuance criteria under section 10(a)(2)(B) of the Act that
would apply if the non-listed species covered by the plan were listed.
For the Service to cover a species under a conservation plan, it must
be identified as a covered species on the section 10(a)(1)(B) permit.
* * * * *
Applicant means the person(s), as defined at Sec. 10.12 of this
subchapter, who is named and identified on the application and, by
signing the application, will assume the responsibility for
implementing the terms of an issued permit. Other parties including,
without limitations, affiliates, associates, subsidiaries, corporate
families, and assigns of an applicant are not applicants or permittees
unless, in accordance with applicable regulations, an application or
permit has been amended to include them or unless a permit has been
transferred.
* * * * *
Baseline condition means population estimates and distribution or
habitat characteristics on the enrolled land that could sustain
seasonal or permanent use by the covered species at the time a
conservation benefit agreement is executed by the Service and the
property owner, or by a programmatic permit holder and the property
owner, under Sec. Sec. 17.22(c) and 17.32(c) of this part, as
applicable.
* * * * *
Changed circumstances are changes in circumstances affecting a
species or geographic area covered by a conservation plan that can
reasonably be anticipated by the plan's developers and the Service for
which responses can be identified in a conservation plan (e.g., the
listing of new species, or a fire or other natural catastrophic event
in areas prone to those events).
* * * * *
Covered activity means an action that causes take of a covered
species and for which take is authorized by a permit under Sec.
17.22(b) and (c) or Sec. 17.32(b) and (c), as applicable.
Covered species means any species that are included in a
conservation plan or conservation benefit agreement and for which take
is authorized through an incidental take or enhancement of survival
permit. Covered species include species listed as endangered or
threatened for which take is reasonably certain to occur. Covered
species may include species that are proposed or candidates for
listing, that have other Federal protective status, or that the Service
determines have a reasonable potential to be considered for listing
during the permit's duration. An incidental take or enhancement of
survival permit need not include a listed species.
* * * * *
Net conservation benefit means the cumulative benefit provided by
specific measures described in a conservation benefit agreement that
are designed to improve the existing baseline condition of a covered
species by reducing or eliminating threats or otherwise improving the
status of covered species, minus the adverse impacts to covered species
from ongoing land or water use activities and conservation measures, so
that the condition of the covered species or the amount or quality of
its habitat is reasonably expected to be greater at the end of the
agreement period than at the beginning.
* * * * *
Permit area means the geographic area where the take permit
applies. The permit area must be delineated in the
[[Page 8391]]
permit and be included within a conservation plan or agreement.
Permittee means the named applicant who has been issued a permit
and who assumes responsibility for implementing the permit. Other
parties including, without limitation, affiliates, associates,
subsidiaries, corporate families, and assigns of a permittee are not
permittees unless the permit has been amended or transferred pursuant
to applicable regulations.
Plan area means the geographic area where covered activities,
including mitigation, described in the conservation plan associated
with an incidental take permit may occur. The plan area must be
identified in the conservation plan.
* * * * *
Programmatic permit associated with a conservation benefit
agreement means an enhancement of survival permit issued under Sec.
17.22(c) or Sec. 17.32(c), with an accompanying conservation benefit
agreement that allows at least one named permittee to extend the
incidental take authorization to enrolled property owners who are
capable of carrying out and agree to properly implement the
conservation benefit agreement.
Programmatic permit associated with a conservation plan means an
incidental take permit issued under Sec. 17.22(b) or Sec. 17.32(b),
with an accompanying conservation plan that allows at least one named
permittee to extend the incidental take authorization to participants
who are capable of carrying out and agree to properly implement the
conservation plan.
* * * * *
Property owner, with respect to conservation benefit agreements and
plans outlined under Sec. 17.22(b) and (c) and Sec. 17.32(b) and (c),
means a person or other entity with a property interest (including
owners of water or other natural resources) sufficient to carry out the
proposed activities, subject to applicable State and Federal laws and
regulations.
* * * * *
Subpart C--Endangered Wildlife
0
9. Amend Sec. 17.22 by:
0
a. Revising the section heading and paragraphs (b), (c), and (d); and
0
b. Removing paragraph (e).
The revisions read as follows:
Sec. 17.22 Permits for endangered species.
* * * * *
(b)(1) Application requirements for an incidental take permit. A
person seeking authorization for incidental take that would otherwise
be prohibited by Sec. 17.21(c) submits Form 3-200-56, a processing fee
(if applicable), and a conservation plan. The Service will process the
application when the Director determines the application is complete. A
conservation plan must include the following:
(i) Project description: A complete description of the project
including purpose, location, timing, and proposed covered activities.
(ii) Covered species: As defined in Sec. 17.3, common and
scientific names of species sought to be covered by the permit, as well
as the number of individuals to be taken and the age and sex of those
individuals, if known.
(iii) Goals and objectives: The measurable biological goals and
objectives of the conservation plan.
(iv) Anticipated take: Expected timing, geographic distribution,
type and amount of take, and the likely impact of take on the species.
(v) Conservation program, which explains the:
(A) Conservation measures that will be taken to minimize and
mitigate the impacts of the incidental take for all covered species
commensurate with the taking;
(B) Roles and responsibilities of all entities involved in
implementation of the conservation plan;
(C) Changed circumstances and the planned responses in an adaptive
management plan; and
(D) Procedures for dealing with unforeseen circumstances.
(vi) Conservation timing: The timing of mitigation relative to the
incidental take of covered species.
(vii) Permit duration: The rationale for the requested permit
duration.
(viii) Monitoring: Monitoring of the effectiveness of the
mitigation and minimization measures, progress towards achieving the
biological goals and objectives, and permit compliance.
(ix) Funding needs and sources: An accounting of the costs for
properly implementing the conservation plan and the sources and methods
of funding.
(x) Alternative actions: The alternative actions to the taking the
applicant considered and the reasons why such alternatives are not
being used.
(xi) Additional actions: Other measures that the Director requires
as necessary or appropriate, including those necessary or appropriate
to meet the issuance criteria or other statutory responsibilities of
the Service.
(2) Issuance criteria. Upon receiving an application completed in
accordance with paragraph (b)(1) of this section, the Director will
decide whether a permit should be issued. The Director will consider
the general issuance criteria in Sec. 13.21(b) of this subchapter,
except for Sec. 13.21(b)(4). In making a decision, the Director will
consider the anticipated duration and geographic scope of the
applicant's planned activities, including the amount of covered
species' habitat that is involved and the degree to which covered
species and their habitats are affected. The Director will issue the
permit if the Director finds:
(i) The taking will be incidental to, and not the purpose of,
carrying out an otherwise lawful activity.
(ii) The applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of the taking.
(iii) The applicant will ensure that adequate funding for the
conservation plan implementation will be provided.
(iv) The applicant has provided procedures to deal with unforeseen
circumstances.
(v) The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.
(vi) The measures and conditions, if any, required under paragraph
(b)(1)(xi) of this section will be met.
(vii) The applicant has provided any other assurances the Director
requires to ensure that the conservation plan will be implemented.
(3) Permit conditions. In addition to the general conditions set
forth in part 13 of this subchapter, every permit issued under this
paragraph (b) will contain terms and conditions that the Director deems
necessary or appropriate to carry out the purposes of the permit and
the conservation plan including, but not limited to, additional
conservation measures, specified deadlines, and monitoring and
reporting requirements deemed necessary for determining whether the
permittee is complying with those terms and conditions. The Director
will rely upon existing reporting requirements to the maximum extent
practicable.
(4) Permit duration and effective date. In determining the duration
of a permit, the Director will consider the duration of the activities
for which coverage is requested; the time necessary to fully minimize
and mitigate the impacts of the taking; and uncertainties related to
the impacts of the taking, success of the mitigation, and external
factors that could affect the success of the conservation plan.
(i) Permits issued under this paragraph (b) become effective for
listed covered species upon the date the permittee signs the incidental
take permit, which must occur within 90 calendar days of issuance. For
non-listed covered species, the permit's take authorization becomes
effective upon
[[Page 8392]]
the effective date of the species listing provided the permittee signed
the permit within 90 calendar days of issuance and has properly
implemented the conservation plan.
(ii) The permit expires on the date indicated on the face of the
permit.
(5) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (b)(5) apply
only to incidental take permits issued in accordance with paragraph
(b)(2) of this section where the conservation plan is being properly
implemented and the permittee is properly complying with the incidental
take permit. The assurances apply only with respect to species covered
by the conservation plan. These assurances do not apply to Federal
agencies or to incidental take permits issued prior to March 25, 1998.
The assurances provided in incidental take permits issued prior to
March 25, 1998, remain in effect, and those permits will not be
revised.
(6) Additional actions. Nothing in this section will be construed
to limit or constrain the Director, any Federal, State, local, or
Tribal government agency, or a private entity from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(7) Permit amendment or renewal. Any amendment or renewal of an
existing permit issued under this part is a new agency decision and is
therefore subject to all current relevant laws and regulations. The
application will be evaluated based on the current policies and
guidance in effect at the time of the amendment or renewal decision.
Evaluation of an amendment extends only to the portion(s) of the
conservation plan, conservation benefit agreement, or permit for the
which the amendment is requested. Amendment or renewal applications
must meet issuance criteria based upon the best available commercial
and scientific data at the time of the permit decision.
(8) 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 Service will deem the permit
canceled only upon a determination that such minimization and
mitigation measures have been implemented. Upon surrender of the
permit, the permittee will be authorized no further take under the
terms of the surrendered permit.
(9) 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.
(c)(1) Application requirements for an enhancement of survival
permit associated with conservation benefit agreements. The applicant
must submit Form 3-200-54, the processing fee (if applicable), and a
conservation benefit agreement. The Service will process the
application when the Director determines the application has met all
statutory and regulatory requirements for a complete application. A
conservation benefit agreement must include the following:
(i) Conservation measures: A complete description of the
conservation measure or measures, including the location of the
activity or activities to be covered by the permit and their intended
outcome for the covered species.
(ii) Covered species: The common and scientific names of the
covered species for which the applicant will conduct conservation
measures and may need authorization for take.
(iii) Goals and objectives: The measurable biological goals and
objectives of the conservation measures in the agreement.
(iv) Enrollment baseline: The baseline condition of the property or
area to be enrolled.
(v) Net conservation benefit: A description of how the measures are
reasonably expected to improve each covered species' existing baseline
condition on the enrolled land and result in a net conservation benefit
as defined at Sec. 17.3.
(vi) Monitoring: The steps the applicant will take to monitor and
adaptively manage to ensure the goals and objectives of the
conservation benefit agreement are met, the responsibilities of all
parties are carried out, and the conservation benefit agreement will be
properly implemented.
(vii) Neighboring property owners: A description of the enrollment
process to provide neighboring property owners incidental take coverage
under paragraph (c)(5)(ii) of this section, if applicable, or any other
measures developed to protect the interests of neighboring property
owners.
(viii) Return to baseline condition: The applicant's choice between
including authorization to return enrolled land to baseline condition
or forgoing that authorization. For applicants seeking authority to
return to baseline condition, a description of steps that may be taken
to return the property to baseline condition and measures to reduce the
effects of the take to the covered species.
(ix) Additional actions: Any other measures that the Director may
require as necessary or appropriate in order to meet the issuance
criteria in paragraph (c)(2) of this section or to avoid conflicts with
other Service conservation efforts.
(2) Issuance criteria. Upon receiving an application completed in
accordance with paragraph (c)(1) of this section, the Director will
decide whether to issue a permit. The Director will 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 the Director finds:
(i) The take will be incidental to an otherwise lawful activity or
purposeful if it is necessary for the implementation of the
conservation benefit agreement and will be in accordance with the terms
of the conservation benefit agreement.
(ii) The implementation of the terms of the conservation benefit
agreement is reasonably expected to provide a net conservation benefit
to the affected covered species on the enrolled land that is included
in the permit and for each individual property within a programmatic
conservation benefit agreement, based upon: condition of the species or
habitat, effects of conservation measures, and anticipated impacts of
any permitted take.
(iii) The direct and indirect effects of any authorized take are
unlikely to appreciably reduce the likelihood of survival and recovery
in the wild of any listed species.
(iv) Implementation of the terms of the conservation benefit
agreement will not conflict with any ongoing conservation or recovery
programs for the covered species included in the permit or non-covered
listed species.
(v) The applicant has shown capability of and commitment to
implementing all of the terms of the conservation benefit 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:
[[Page 8393]]
(i) The participating property owner must notify the Service of any
transfer of lands subject to a conservation benefit agreement, at least
30 calendar days prior to the transfer.
(ii) The permittee must give the Service reasonable advance notice
(generally at least 30 calendar days) of when take of any covered
species is expected to occur, to provide the Service an opportunity to
relocate affected individuals of the species, if possible and
appropriate.
(iii) Any additional requirements or conditions the Director deems
necessary or appropriate to carry out the purposes of the permit and
the conservation benefit agreement.
(4) Permit duration and effective date. The duration of permits
issued under paragraph (c) of this section must be sufficient to
provide a net conservation benefit to species covered in the
enhancement of survival permit on the enrolled land.
(i) In determining the duration of a permit, the Director will
consider the duration of the planned activities, the uncertainties
related to the impacts of the taking, and the positive and negative
effects of the planned activities covered by the permit on species
covered by the conservation benefit agreement.
(ii) Permits issued under this paragraph (c) become effective for
listed covered species upon the date the permittee signs the
enhancement of survival permit, which must be within 90 calendar days
of issuance. For non-listed covered species, the take authorized
through the permit becomes effective upon the effective date of the
species listing provided the permittee signed the permit within 90
calendar days of issuance and has properly implemented the conservation
benefit agreement since signing the permit.
(5) Assurances. The assurances in paragraph (c)(5)(ii) of this
section apply only to enhancement of survival permits issued in
accordance with paragraph (c)(2) of this section where the conservation
benefit agreement is being properly implemented, apply only with
respect to species covered by the permit, and are effective until the
permit expires. The assurances provided in this section apply only to
enhancement of survival permits issued after July 19, 1999.
(i) Permittee and participating property owners. The Director and
the permittee may agree to revise or modify the conservation measures
set forth in a conservation benefit agreement if the Director
determines that those revisions or modifications do not change the
Director's prior determination that the conservation benefit agreement
is reasonably expected to provide a net conservation benefit to the
covered species. However, the Director may not require additional or
different conservation measures to be undertaken by a permittee without
the consent of the permittee.
(ii) Neighboring property owners. The Director may provide
incidental take coverage in the enhancement of survival permit for
owners of properties adjacent to properties covered by the conservation
benefit agreement through enrollment procedures contained in the
agreement. The method of providing incidental take coverage will be
tailored to the specific conservation benefit agreement and needs of
adjacent property owners. One method is to have the neighboring
property owner sign a certificate that applies the authorization and
assurances in the permit to the neighboring property owner. The
certificate must:
(A) Establish a baseline condition for the covered species on their
property; and
(B) Give permission to the Service, the permittee, or a
representative of either to enter the property, with reasonable notice,
to capture and relocate, salvage, or implement measures to reduce
anticipated take of the covered species.
(6) Additional actions. Nothing in this section will be construed
to limit or constrain the Director, any Federal, State, local, or
Tribal government agency, or a private entity from taking additional
actions at its own expense to protect or conserve a species included in
a conservation benefit agreement.
(7) Permit amendment or renewal. Any amendment or renewal of an
existing permit issued under part 17 of this chapter is a new agency
decision and is therefore subject to all current relevant laws and
regulations. The application will be evaluated based on the current
policies and guidance in effect at the time of the amendment or renewal
decision. Evaluation of an amendment extends only to the portion(s) of
the conservation benefit agreement or permit for which the amendment is
requested. Amendment or renewal applications must meet issuance
criteria based upon the best available commercial and scientific data
at the time of the permit decision.
(8) Discontinuance of permit activity. Notwithstanding the
provisions of Sec. 13.26 of this subchapter, a permittee under this
paragraph (c) remains responsible for any outstanding conservation
measures required under the terms of the permit for take that occurs
prior to surrender of the permit and any conservation measures required
pursuant to the termination provisions of the conservation benefit
agreement or permit even after surrendering the permit to the Service
pursuant to Sec. 13.26 of this subchapter.
(i) The permittee of a programmatic conservation benefit agreement
that conveys take authorization and assurances to participants or
enrollees must follow the provisions of Sec. 13.26 of this subchapter.
(ii) The permit will be deemed canceled only upon a determination
by the Service that those conservation measure(s) have been implemented
and the permittee has had ample time to return the permittee's property
to baseline condition, if the permit authorized incidental take
associated with return to baseline and if the permittee chooses to
exercise that authorization. Upon surrender of the permit, no further
take will be authorized under the terms of the surrendered permit, and
the assurances in paragraph (c)(5)(i) of this section will no longer
apply.
(9) Criteria for revocation. The Director may not revoke a permit
issued under paragraph (c) of this section except as provided in this
paragraph (c)(9).
(i) The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter. The Director may
revoke a permit if continuation of the covered activity would either:
(A) Appreciably reduce the likelihood of survival and recovery in
the wild of any covered species; or
(B) Directly or indirectly alter designated critical habitat such
that the value of that critical habitat is appreciably diminished for
both the survival and recovery of a covered species.
(ii) Before revoking a permit for either of the reasons set forth
in paragraph (c)(9)(i)(A) or (B) of this section, the Director, with
the consent of the permittee, will pursue all appropriate options to
avoid permit revocation. These options may include, but are not limited
to, extending or modifying the existing permit, capturing and
relocating the species, compensating the property owner to forgo the
activity, purchasing an easement or fee simple interest in the
property, or arranging for a third-party acquisition of an interest in
the property.
(d) Objection to permit issuance. (1) In regard to any notice of a
permit application published in the Federal Register, any interested
party that objects to the issuance of a permit, in whole or in part,
may, during the comment period specified in the notice, request
notification of the final action to
[[Page 8394]]
be taken on the application. A separate written request must be made
for each permit application. Such a request must specify the Service's
permit application number and state the reasons why the interested
party believes the applicant does not meet the issuance criteria
contained in Sec. 13.21 of this subchapter and this section or other
reasons why the permit should not be issued.
(2) If the Service decides to issue a permit contrary to objections
received pursuant to paragraph (d)(1) of this section, then the Service
will, at least 10 days prior to issuance of the permit, make reasonable
efforts to contact by telephone or other expedient means, any party who
has made a request pursuant to paragraph (d)(1) of this section and
inform that party of the issuance of the permit. However, the Service
may reduce the time period or dispense with such notice if the Service
determines that time is of the essence and that delay in issuance of
the permit would:
(i) Harm the specimen or population involved; or
(ii) Unduly hinder the actions authorized under the permit.
(3) The Service will notify any party filing an objection and
request for notice under paragraph (d)(1) of this section of the final
action taken on the application, in writing. If the Service has reduced
or dispensed with the notice period referred to in paragraph (d)(2) of
this section, the Service will include its reasons in such written
notice.
Subpart D--Threatened Wildlife
0
10. Amend Sec. 17.32 by:
0
a. Revising the section heading and paragraphs (b) and (c); and
0
b. Removing paragraph (d).
The revisions read as follows:
Sec. 17.32 Permits for threatened species.
* * * * *
(b)(1) Application requirements for an incidental take permit. A
person seeking authorization for incidental take that would otherwise
be prohibited by Sec. 17.31 or Sec. Sec. 17.40 through 17.48 submits
Form 3-200-56, a processing fee (if applicable), and a conservation
plan. The Service will process the application when the Director
determines the application is complete. A conservation plan must
include the following:
(i) Project description: A complete description of the project,
including purpose, location, timing, and proposed covered activities.
(ii) Covered species: Common and scientific names of species sought
to be covered by the permit, as defined in Sec. 17.3, as well as the
number of individuals to be taken and the age and sex of those
individuals, if known.
(iii) Goals and objectives: The measurable biological goals and
objectives of the conservation plan.
(iv) Anticipated take: Expected timing, geographic distribution,
type and amount of take, and the likely impact of take on the species.
(v) Conservation program, which explains the:
(A) Conservation measures that will be taken to minimize and
mitigate the impacts of the incidental take for all covered species
commensurate with the taking;
(B) Roles and responsibilities of all entities involved in
implementation of the conservation plan;
(C) Changed circumstances and the planned responses in an adaptive
management plan; and
(D) Procedures for dealing with unforeseen circumstances.
(vi) Conservation timing: The timing of mitigation relative to the
incidental take of covered species.
(vii) Permit duration: The rationale for the requested permit
duration.
(viii) Monitoring: Monitoring of the effectiveness of the
mitigation and minimization measures, progress towards achieving the
biological goals and objectives, and permit compliance.
(ix) Funding needs and sources: An accounting of the costs for
properly implementing the conservation plan and the sources and methods
of funding.
(x) Alternative actions: The alternative actions to the taking the
applicant considered and the reasons why such alternatives are not
being used.
(xi) Additional actions: Other measures that the Director requires
as necessary or appropriate, including those necessary or appropriate
to meet the issuance criteria or other statutory responsibilities of
the Service.
(2) Issuance criteria. Upon receiving an application completed in
accordance with paragraph (b)(1) of this section, the Director will
decide whether a permit should be issued. The Director will consider
the general issuance criteria in Sec. 13.21(b) of this subchapter,
except for Sec. 13.21(b)(4). The Director will also consider the
anticipated duration and geographic scope of the applicant's planned
activities, including the amount of covered species' habitat that is
involved and the degree to which covered species and their habitats are
affected. The Director will issue the permit if the Director finds:
(i) The taking will be incidental to, and not the purpose of,
carrying out an otherwise lawful activity.
(ii) The applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of the taking.
(iii) The applicant will ensure that adequate funding for the
conservation plan implementation will be provided.
(iv) The applicant has provided procedures to deal with unforeseen
circumstances.
(v) The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.
(vi) The measures and conditions, if any, required under paragraph
(b)(1)(xi) of this section will be met.
(vii) The applicant has provided any other assurances the Director
requires to ensure that the conservation plan will be implemented.
(3) Permit conditions. In addition to the general conditions set
forth in part 13 of this subchapter, every permit issued under this
paragraph will contain terms and conditions that the Director deems
necessary or appropriate to carry out the purposes of the permit and
the conservation plan, including, but not limited to, additional
conservation measures, specified deadlines, and monitoring and
reporting requirements deemed necessary for determining whether the
permittee is complying with those terms and conditions. The Director
will rely upon existing reporting requirements to the maximum extent
practicable.
(4) Permit duration and effective date. In determining the duration
of a permit, the Director will consider the duration of the activities
for which coverage is requested; the time necessary to fully minimize
and mitigate the impacts of the taking; and uncertainties related to
the impacts of the taking, success of the mitigation, and external
factors that could affect the success of the conservation plan.
(i) Permits issued under this paragraph (b) become effective for
listed covered species upon the date the permittee signs the incidental
take permit, which must occur within 90 calendar days of issuance. For
non-listed covered species, the permit's take authorization becomes
effective upon the effective date of the species listing provided the
permittee signed the permit within 90 calendar days of issuance and has
properly implemented the conservation plan.
(ii) The permit expires on the date indicated on the face of the
permit.
(5) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (b)(5) apply
only to incidental take permits issued in accordance with paragraph
(b)(2) of this section where the conservation plan is being properly
[[Page 8395]]
implemented and the permittee is properly complying with the incidental
take permit. The assurances apply only with respect to species covered
by the conservation plan. These assurances do not apply to Federal
agencies or to incidental take permits issued prior to March 25, 1998.
The assurances provided in incidental take permits issued prior to
March 25, 1998, remain in effect, and those permits will not be
revised.
(6) Additional actions. Nothing in this section will be construed
to limit or constrain the Director, any Federal, State, local, or
Tribal government agency, or a private entity from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(7) Permit amendment or renewal. Any amendment or renewal of an
existing permit issued under this part is a new agency decision and is
therefore subject to all current relevant laws and regulations. The
application will be evaluated based on the current policy and guidance
in effect at the time of the amendment or renewal decision. Amendment
or renewal applications must meet issuance criteria based upon the best
available commercial and scientific data at the time of the permit
decision.
(8) 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.
(i) The Service will deem the permit canceled only upon a
determination that such minimization and mitigation measures have been
implemented.
(ii) Upon surrender of the permit, the permittee will be authorized
no further take under the terms of the surrendered permit.
(9) 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.
(c)(1) Application requirements for an enhancement of survival
permit associated with conservation benefit agreements. The applicant
must submit Form 3-200-54, a processing fee (if applicable), and a
conservation benefit agreement. The Service will process the
application when the Director determines the application has met all
statutory and regulatory requirements for a complete application. A
conservation benefit agreement must include the following:
(i) Conservation measures: A complete description of the
conservation measure or measures, including the location of the
activity or activities to be covered by the permit, and their intended
outcome for the covered species.
(ii) Covered species: The common and scientific names of the
covered species for which the applicant will conduct conservation
measures and may need authorization for take.
(iii) Goals and objectives: The measurable biological goals and
objectives of the conservation measures in the agreement.
(iv) Enrollment baseline: The baseline condition of the property or
area to be enrolled.
(v) Net conservation benefit: A description of how the measures are
reasonably expected to improve each covered species' existing baseline
condition on the enrolled land and result in a net conservation benefit
as defined at Sec. 17.3.
(vi) Monitoring: The steps the applicant will take to monitor and
adaptively manage to ensure the goals and objectives of the agreement
are met, the responsibilities of all parties are carried out, and the
agreement will be properly implemented.
(vii) Neighboring property owners: A description of the enrollment
process to provide neighboring property owners incidental take coverage
under paragraph (c)(5)(ii) of this section, if applicable, or any other
measures developed to protect the interests of neighboring property
owners.
(viii) Return to baseline condition: The applicant's choice between
including authorization to return enrolled land to baseline condition
or forgoing that authorization. For applicants seeking authority to
return to baseline condition, a description of steps that may be taken
to return the property to baseline condition and measures to reduce the
effects of the take to the covered species.
(ix) Additional actions: Any other measures that the Director may
require as necessary or appropriate in order to meet the issuance
criteria in paragraph (c)(2) of this section or to avoid conflicts with
other Service conservation efforts.
(2) Issuance criteria. Upon receiving an application completed in
accordance with paragraph (c)(1) of this section, the Director will
decide whether to issue a permit. The Director will 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 the Director finds:
(i) The take will be incidental to an otherwise lawful activity or
purposeful if it is necessary for the implementation of the
conservation benefit agreement and will be in accordance with the terms
of the conservation benefit agreement.
(ii) The implementation of the terms of the conservation benefit
agreement is reasonably expected to provide a net conservation benefit
to the affected covered species on the enrolled land that is included
in the permit and for each individual property within a programmatic
conservation benefit agreement, based upon: condition of the species or
habitat, effects of conservation measures, and anticipated impacts of
any permitted take.
(iii) The direct and indirect effects of any authorized take are
unlikely to appreciably reduce the likelihood of survival and recovery
in the wild of any listed species.
(iv) Implementation of the terms of the conservation benefit
agreement will not conflict with any ongoing conservation or recovery
programs for listed species and the covered species included in the
permit.
(v) The applicant has shown a capability for and commitment to
implementing all of the terms of the conservation benefit 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) The participating property owner must notify the Service of any
transfer of lands subject to a conservation benefit agreement, at least
30 calendar days prior to the transfer.
(ii) The permittee must give the Service reasonable advance notice
(generally at least 30 calendar days) of when take of any covered
species is expected to occur, to provide the Service an opportunity to
relocate affected individuals of the species, if possible and
appropriate.
(iii) Any additional requirements or conditions the Director deems
necessary or appropriate to carry out the purposes of the permit and
the conservation benefit agreement.
(4) Permit duration and effective date. The duration of permits
issued under
[[Page 8396]]
paragraph (c) of this section must be sufficient to provide a net
conservation benefit to species covered in the enhancement of survival
permit on the enrolled land.
(i) In determining the duration of a permit, the Director will
consider the duration of the planned activities, the uncertainties
related to the impacts of the taking, and the positive and negative
effects of the planned activities covered by the permit on species
covered by the conservation benefit agreement.
(ii) Permits issued under this paragraph (c) become effective for
listed covered species upon the date the permittee signs the
enhancement of survival permit, which must be within 90 calendar days
of issuance. For non-listed covered species, the take authorized
through the permit becomes effective upon the effective date of the
species listing provided the permittee signed the permit within 90
calendar days of issuance and has properly implemented the conservation
benefit agreement since signing the permit.
(5) Assurances. The assurances in paragraph (c)(5)(ii) of this
section apply only to enhancement of survival permits issued in
accordance with paragraph (c)(2) of this section where the conservation
benefit agreement is being properly implemented, apply only with
respect to species covered by the permit, and are effective until the
permit expires. The assurances provided in this section apply only to
enhancement of survival permits issued after July 19, 1999.
(i) Permittee and participating property owners. The Director and
the permittee may agree to revise or modify the conservation measures
set forth in a conservation benefit agreement if the Director
determines that those revisions or modifications do not change the
Director's prior determination that the conservation benefit agreement
is reasonably expected to provide a net conservation benefit to the
covered species. However, the Director may not require additional or
different conservation measures to be undertaken by a permittee without
the consent of the permittee.
(ii) Neighboring property owners. The Director may provide
incidental take coverage in the enhancement of survival permit for
owners of properties adjacent to properties covered by the conservation
benefit agreement through enrollment procedures contained in the
agreement. The method of providing incidental take coverage will be
tailored to the specific conservation benefit agreement and needs of
adjacent property owners. One method is to have the neighboring
property owner sign a certificate that applies the authorization and
assurances in the permit to the neighboring property owner. The
certificate must:
(A) Establish a baseline condition for the covered species on their
property; and
(B) Give permission to the Service, the permittee, or a
representative of either to enter the property, with reasonable notice,
to capture and relocate, salvage, or implement measures to reduce
anticipated take of the covered species.
(6) Additional actions. Nothing in this section will be construed
to limit or constrain the Director, any Federal, State, local, or
Tribal government agency, or a private entity from taking additional
actions at its own expense to protect or conserve a species included in
a conservation benefit agreement.
(7) Permit amendment or renewal. Any amendment or renewal of an
existing permit issued under this part is a new agency decision and is
therefore subject to all current relevant laws and regulations. The
application will be evaluated based on the current policy and guidance
in effect at the time of the amendment or renewal decision. Amendment
or renewal applications must meet issuance criteria based upon the best
available commercial and scientific data at the time of the permit
decision.
(8) Discontinuance of permit activity. Notwithstanding the
provisions of Sec. 13.26 of this subchapter, a permittee under this
paragraph (c) remains responsible for any outstanding conservation
measures required under the terms of the permit for take that occurs
prior to surrender of the permit and any conservation measures required
pursuant to the termination provisions of the conservation benefit
agreement or permit even after surrendering the permit to the Service
pursuant to Sec. 13.26 of this subchapter. The permittee of a
programmatic conservation benefit agreement that conveys take
authorization and assurances to participants or enrollees must follow
the provisions of Sec. 13.26 of this subchapter.
(i) The permit will be deemed canceled only upon a determination by
the Service that those conservation measure(s) have been implemented
and the permittee has had ample time to return their property to
baseline condition, if the permit authorized incidental take associated
with return to baseline and if the permittee chooses to exercise that
authorization.
(ii) Upon surrender of the permit, no further take will be
authorized under the terms of the surrendered permit, and the
assurances in paragraph (c)(5)(i) of this section will no longer apply.
(9) Criteria for revocation. The Director may not revoke a permit
issued under this paragraph (c) except as provided in this paragraph
(c)(9). The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter.
(i) The Director may revoke a permit if continuation of the covered
activity would either:
(A) Appreciably reduce the likelihood of survival and recovery in
the wild of any covered species; or
(B) Directly or indirectly alter designated critical habitat such
that the value of that critical habitat is appreciably diminished for
both the survival and recovery of a covered species.
(ii) Before revoking a permit for either of the reasons in
paragraph (c)(9)(i)(A) or (B) of this section, the Director, with the
consent of the permittee, will pursue all appropriate options to avoid
permit revocation. These options may include, but are not limited to,
extending or modifying the existing permit, capturing and relocating
the species, compensating the property owner to forgo the activity,
purchasing an easement or fee simple interest in the property, or
arranging for a third-party acquisition of an interest in the property.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-02690 Filed 2-8-23; 8:45 am]
BILLING CODE 4333-15-P