[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Proposed Rules]
[Pages 32189-32194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15251]



  Federal Register / Vol. 62, No. 113 /  Thursday, June 12, 1997 /  
Proposed Rules  

[[Page 32189]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

RIN 1018-AD95


Safe Harbor Agreements and Candidate Conservation Agreements

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule contains the U.S. Fish and Wildlife 
Service's (Service) proposed regulatory changes to 50 CFR part 17 
necessary to implement two draft policies developed by the Service and 
the National Marine Fisheries Service (NMFS) under the Endangered 
Species Act (Act)--the Safe Harbor and Candidate Conservation Agreement 
policies which are published elsewhere in this issue of the Federal 
Register. NMFS will develop separate regulatory changes to implement 
these policies. In addition, the Service proposes technical amendments 
to its general regulations (50 CFR part 13) which are applicable to all 
of its various permitting programs. These proposed revisions would 
clarify the application of existing general permit conditions to the 
permitting procedures associated with Habitat Conservation Plans, Safe 
Harbor Agreements and Candidate Conservation Agreements issued under 
section 10 of the Act.

DATES: Comments on the proposed rule must be received by August 11, 
1997.

ADDRESSES: Send any comments or materials concerning the proposed rule 
to the Chief, Division of Endangered Species, U.S. Fish and Wildlife 
Service, 452 ARLSQ, Washington, D.C. 20240 (Telephone 703/358-2171, 
Facsimile 703/358-1735). You may examine comments and materials 
received during normal business hours in room 452, Arlington Square 
Building, 4401 North Fairfax Drive, Arlington, Virginia. You must make 
an appointment to examine these materials.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of 
Endangered Species (Telephone (703/358-2171).

SUPPLEMENTARY INFORMATION:

Background

    These proposed regulations only apply to the U.S. Fish and Wildlife 
Service and in no way apply to the National Marine Fisheries Service. 
Therefore, the use of the term Service within these proposed regulatory 
changes refers to the U.S. Fish and Wildlife Service exclusively.
    The Service administers a variety of conservation laws that 
authorize the issuance of certain permits for otherwise prohibited 
activities. In 1974, the Service published Part 13 of Title 50 of the 
Code of Federal Regulations to consolidate the administration of its 
various permitting programs. Part 13 established a uniform framework of 
general administrative conditions and procedures that would govern the 
application, processing, and issuance of all Service permits. The 
Service intended the general part 13 permitting provisions to be in 
addition to, and not in lieu of, other more specific permitting 
requirements of Federal wildlife laws.
    Subsequent to the 1974 publication of part 13, the Service added 
many wildlife regulatory programs to Title 50 of the Code of Federal 
Regulations. For example, the Service added part 18 in 1974 to 
implement the Marine Mammal Protection Act, modified and expanded part 
17 in 1975 to implement the Act, and added Part 23 in 1977 to implement 
the Convention on International Trade in Endangered Species of Fauna 
and Flora (CITES). These parts contained their own specific permitting 
requirements in addition to the general permitting provisions of part 
13.
    In most instances, the combination of Part 13's general permitting 
provisions and Part 17's specific Act permitting provisions have worked 
well since 1975. However, in three areas of emerging permitting policy 
under the Act, the ``one size fits all'' approach of part 13 is 
inappropriately constraining and narrow. These three areas involve 
Habitat Conservation Planning, ``Safe Harbor'' Agreements, and 
Candidate Conservation Agreements.
    Congress amended section 10(a)(1) of the Act in 1982 to authorize 
incidental take permits associated with habitat conservation planning 
(HCP). Many HCP permits involve long-term conservation commitments that 
run with the affected land for the life of the permit. The Service 
negotiates such long-term permits recognizing that a succession of 
owners may purchase or resell the affected property during the term of 
the permit. The Service does not view this as a problem, where the 
requirements of such permits run with the land and successive owners 
agree to the terms of the HCP. Property owners similarly do not view 
this as a problem so long as the Service can easily transfer incidental 
take authorization from one purchaser to another.
    In other HCP situations, the HCP permittee may be a State or local 
agency that intends to sub-permit or blanket the incidental take 
authorization to hundreds if not thousands of its citizens. The Service 
again does not view this as a problem so long as the original agency 
permittee abides by, and ensures compliance with, the terms of the HCP.
    While the above HCP scenarios are proper and consistent with the 
requirements of section 10(a) of the Act and part 17, they are not as 
easily reconcilable with certain sections of part 13. For example, 
sections 13.24 and 13.25 of Title 50 impose significant restrictions on 
permit right of succession or transferability. While these restrictions 
are well justified for most wildlife permitting situations, they impose 
inappropriate and unnecessary limitations for HCP permits where the 
term of the permit may be lengthy and the parties to the HCP foresee 
the desirability of simplifying sub-permitting and permit transference 
from one property owner to the next, or from a State or local agency to 
citizens under their jurisdiction.
    Similar problems also could arise under Part 13 under so-called 
``Safe Harbor'' or Candidate Conservation Agreements (see draft Safe 
Harbor and Candidate Conservation Agreement policies also published in 
today's Federal Register). A major incentive for property owner 
participation in the Safe Harbor or Candidate Conservation programs is 
the long-term certainty the programs provide, including the certainty 
that the incidental take authorization will run with the land when it 
changes hands and the new owner agrees to be bound by the terms of the 
original Agreement. Property owners could view the present limitations 
in several sections (e.g., section 13.24 and 13.25) as impediments to 
the development of these agreements. In light of potential problems 
such as these, the Service is proposing to modify Part 13 to redefine 
its relationship with HCP permits and Safe Harbor and Candidate 
Conservation ``enhancement of survival'' permits under Part 17.
    To address these issues, the Service proposes several changes in 
Part 13. First, the Service proposes to modify section 13.3 by 
identifying and clarifying that, in case of a conflict between general 
permit provisions in part 13 and more specific terms or conditions in a 
HCP permit and its accompanying habitat conservation plan or 
implementation agreement, the more specific provisions in the HCP 
permit and accompanying documents would control. Similarly, in the case 
of a conflict between general provisions in part 13 and terms or 
conditions under a Safe Harbor or Candidate Conservation Agreement and 
its accompanying part

[[Page 32190]]

17 ``enhancement of survival'' permit, the provisions of the part 17 
``enhancement of survival'' permit and the Agreement would control. 
Thus, while part 13 would generally apply to HCP and enhancement of 
survival permits, the more detailed and specific terms and conditions 
of a permit issued under part 17 would apply when there is a conflict.
    Reviewers should note that the Service proposed amendments to 
section 13.3 (Scope of Regulations) on September 5, 1995 (60 FR 46087). 
Those changes, among other things, provided an explanation of the term 
``permit'' (needed to reference the requirements applicable to the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES) correctly), to state the scope of its requirements 
clearly, and to ensure that the titles of several parts of Title 50 of 
the Code of Federal Regulations are up-to-date. However, the September 
5, 1995, proposal did not deal with the potential conflicts between the 
general provisions included in part 13 with specific provisions for 
incidental take and enhancement of survival permits under part 17. The 
present proposal in no way amends the language included in the 
September 5, 1995, proposal.
    The Service also proposes to add four new sub-sections to part 17. 
These sub-sections would provide specific guidance for the issuance of 
endangered or threatened species enhancement of survival permits under 
section 10(a)(1)(A) of the Act for activities conducted under Safe 
Harbor or Candidate Conservation Agreements. This would avoid confusion 
with any other type of permits issued under part 17 and provides clear 
guidance on the specific applicable criteria for Safe Harbor and 
Candidate Conservation Agreements through the enhancement of survival 
provisions of the Act. The Act requires the Secretary of Interior to 
establish and implement programs to conserve declining species of fish, 
wildlife, and plants so as to prevent their extinction. The proposed 
regulations for Safe Harbor and Candidate Conservation Agreements are 
aimed at implementing such programs. The proactive nature of these 
programs, the regulatory certainty they provide participating property 
owners, and their conservation benefits truly reflect the overall 
purposes of the Act and fall within the Service's responsibilities for 
utilizing its authorities and responsibilities to further the 
conservation mandate of the Act. Section 10(a)(1)(A) enhancement of 
survival permits provide the best mechanism for implementing the Safe 
Harbor and Candidate Conservation Agreement programs.

Overview of Safe Harbor and Candidate Conservation Programs

    The information below briefly describes these two programs. For 
more details on these two programs see the two draft policies also 
published elsewhere in this issue of the Federal Register.
    Much of the nation's current and potential habitat for listed, 
proposed, and candidate species exists on non-Federal lands, owned by 
private citizens, States, municipalities, Native American Tribal 
governments, and other non-Federal entities. Conservation efforts on 
non-Federal lands are critical to the long-term conservation of many 
declining species. More importantly, a collaborative stewardship 
approach is critical for the success of such an initiative. Many 
property owners are willing to voluntarily manage their lands to 
benefit fish, wildlife, and plants, especially those that are 
declining. Such voluntary management actions are not required by the 
Act. Thus, failure to conduct such management would not violate any of 
the Act's provisions. Beneficial management could include actions to 
maintain habitat or improve habitat (e.g., restoring fire by prescribed 
burning, restoring properly functioning hydrological conditions). 
Property owners are particularly concerned about possible future 
uncertainty relative to land-use restrictions that may result if listed 
species colonize their lands or increase in numbers or distribution 
because of the property owners' conservation efforts or if species 
subsequently become listed as a threatened or endangered species. 
Concern centers primarily on the applicability of the section 9 
``take'' prohibitions if listed species occupy their lands and on 
future land-use restrictions that may result from their conservation-
oriented land management actions if other species are listed. The 
potential for future restrictions has led property owners to avoid or 
limit land or water management practices that could enhance or maintain 
habitat and benefit or attract fish and wildlife that are listed or may 
be listed in the future.
    The purpose of the Safe Harbor Policy is to ensure consistency in 
the development of Safe Harbor Agreements. Safe Harbor Agreements 
encourage proactive conservation efforts for listed species by private 
and other non-Federal property owners while providing property owners 
certainty relative to future property-use restrictions if their efforts 
attract listed species onto their properties or areas affected by 
actions undertaken on their property or increase the numbers or 
distribution of listed species already present on their properties. 
These voluntary Safe Harbor Agreements will be developed between the 
Services and private and other non-Federal property owners. The 
Services will closely coordinate development of Safe Harbor Agreements 
with the appropriate State fish and wildlife or other agencies and any 
affected Native American Tribal governments. Collaborative stewardship 
with State fish and wildlife agencies is particularly important given 
the critical partnership between the Service and the States in 
recovering listed species. Under a Safe Harbor Agreement, participating 
property owners would voluntarily undertake management activities on 
their property to enhance, restore, or maintain habitat benefiting 
federally listed species.
    The ultimate goal of Candidate Conservation Agreements is, to the 
extent feasible and controllable by the property owner, to remove 
enough threats to the covered species so as to nullify the need to list 
them as threatened or endangered under the Act. Proposed and candidate 
species may be the subject of a Candidate Conservation Agreement. 
Certain other unlisted species that may become a candidate or proposed 
species in the near future may also be the subject of a Candidate 
Conservation Agreement. These Agreements are different from Safe Harbor 
Agreements (which require the presence of at least one listed species) 
in that they provide conservation benefits exclusively to candidate and 
proposed species of fish, wildlife, and plants. The substantive 
requirements of activities carried out under Candidate Conservation 
Agreements, if undertaken on a broad enough scale by other property 
owners similarly situated, should be expected to preclude the need for 
listing species covered by the Agreement as threatened or endangered 
under the Act.

Required Determinations

    A major purpose of this proposed rule is the facilitation of 
voluntary cooperative programs for the proactive management of non-
Federal lands and waters for the benefit of candidate, proposed, and 
listed species. From the Federal government's perspective, 
implementation of this rule would result in minor expenditures (e.g., 
providing technical assistance in the development of site-specific 
management plans). The benefits derived from such management actions on 
non-Federal lands and waters would

[[Page 32191]]

significantly advance the recovery of listed species or remove threats 
to candidate, proposed, or other unlisted species. Non-Federal program 
participants would be provided regulatory certainty as a result of 
their voluntary management actions. In some cases, such participants 
may incur minor expenditures to carry out some management actions on 
their lands or involving their water. The Service has determined that 
the proposed rule would not result in significant costs of 
implementation to the Federal government or to non-Federal program 
participants.
    The Assistant Secretary for the Department of Interior certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
that a review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 
601 et seq.) has revealed that this rulemaking would not have a 
significant effect on a substantial number of small entities, which 
includes businesses, organizations, or governmental jurisdictions. 
Because of the completely voluntary nature of the Safe Harbor or 
Candidate Conservation program, no significant effects are expected on 
non-Federal cooperators exercising their option to enter into a Safe 
Harbor or Candidate Conservation Agreement. Therefore, this rule would 
have minimal effect on such entities. This rule was not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    The Service has determined and certifies pursuant to the Unfunded 
Mandates Act, 2 U.S.C. 1502 et seq., that this proposed rule will not 
impose a cost of $100 million or more in any given year on local or 
State governments or private entities. The Department has determined 
that these proposed regulations meet the applicable standards provided 
in sections 3(a) and 3(b)(2) of Executive Order 12988.

Information Collection

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the Service is submitting the necessary paperwork to OMB for 
renewal of approval number 1018-0022, which expires July 31, 1997 to 
collect this information. The Service will not continue to collect the 
information until approved by OMB and a final regulation is published. 
The proposed information collection requirement will be used to 
administer these programs and, particularly in the issuance of permits. 
The Service intends to collect the information through the use of the 
Federal Fish and Wildlife Permit Application, Service form number 3-
200.54, which the Service modified pursuant to 50 CFR 13.21(b) to 
address the specific requirements of the proposed rule, and at the 
request of OMB. The information requested in the application form will 
be required to obtain a benefit, and to determine if the applicant 
meets all the permit issuance criteria.
    The applicants will be non-Federal property owners, working with 
Federal officials, wishing to manage their lands or waters to provide a 
conservation benefit to endangered and threatened species, but who also 
do not want to incur future additional regulatory requirements as a 
result of their conservation-oriented activities. The annual number of 
applicants is estimated to be 50. The public reporting burden for this 
collection of information is estimated to average two and one-half 
hours per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining data needed, 
and completing and reviewing the collection of information, yielding an 
annual burden of 125 hours.
    Comments are invited from the public on: (1) Whether the collection 
of information is necessary for the proper performance of the function 
of the Service, including whether the information will have practical 
utility; (2) the accuracy of the Service's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used; (3) the quality, utility, and clarity 
of the information to be collected; and (4) How to minimize the burden 
of the collection of information on those who are to respond, including 
the use of appropriate automated electronic, mechanical, or other forms 
of information technology.

Public Comments Solicited

    The Service submits for public comment this proposed rule. 
Particularly, comments are sought on:
    (1) The proposed procedures or methods for implementing the 
Service's Safe Harbor and Candidate Conservation policies to further 
the purposes of the Act;
    (2) Alternative means for providing regulatory assurances to 
property owners who enter Safe Harbor or Candidate Conservation 
Agreements; and
    (3) The proposed regulatory changes to 50 CFR parts 13 and 17.
    The Service is also requesting comments on the revised Federal Fish 
and Wildlife Permit Application, Service form number 3-200.54. Copies 
of the proposed information collection requirements, related forms, and 
explanatory material may be obtained from, and comments should be 
submitted to the Service's Information Collection Clearance Officer at 
the U.S. Fish and Wildlife Service, MS 224-ARLSQ, 1849 C Street, NW., 
Washington, D.C., 20240; or by calling and requesting information at 
703/358-1943.
    The Service will take into consideration the comments and any 
additional information received by the Service by August 11, 1997, and 
such will be considered in the development of a final rule.

List of Subjects

50 CFR Part 13

    Administrative practice and procedure, Exports, Fish, Imports, 
Plants, Reporting and recordkeeping requirements, Transportation, 
Wildlife.

50 CFR Part 17

    Endangered and threatened species, Export, Import, Reporting and 
recordkeeping requirements, Transportation.

    For the reasons set out in the preamble, the Service proposes to 
amend Title 50, Chapter I, subchapter B of the Federal Code of 
Regulations, as set forth below:

PART 13--[AMENDED]

    1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a; 704, 712; 742 j-l; 1382; 1538(d); 
1539, 1540(f); 3374; 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O. 
11911, 41 FR 15683; 31 U.S.C. 9701.

    2. Section 13.3 is revised to read as follows:


Sec. 13.3  Scope of regulations.

    The provisions in this part are in addition to, and are not in lieu 
of, other permit regulations of this subchapter and apply to all 
permits issued thereunder, including ``Importation, Exportation and 
Transportation of Wildlife'' (part 14), ``Wild Bird Conservation Act'' 
(part 15), ``Injurious Wildlife'' (part 16), ``Endangered Wildlife and 
Plants'' (part 17), ``Marine Mammals'' (part 18), ``Migratory Bird 
Permits'' (part 21), ``Eagle Permits'' (part 22), and ``Endangered 
Species Convention'' (the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora) (part 23) except as 
provided in Sec. 13.22(c). However, in the case of a conflict between 
general provisions of this part and specific provisions, conditions, or 
procedures contained in either an incidental take permit and its 
accompanying habitat conservation plan

[[Page 32192]]

or agreement under Sec. 17.22(b) or 17.32(b) of this title, or in a 
safe harbor agreement through an enhancement of survival permit under 
Sec. 17.22(c) or 17.32(c) or candidate conservation agreement through 
an enhancement of survival permit under Sec. 17.22(d) or 17.32(d) of 
this title, the specific provisions, conditions, or procedures of the 
incidental take permit and its accompanying habitat conservation plan 
or agreement, or the safe harbor or candidate conservation agreements 
through an enhancement of survival permit and accompanying document, 
will control. As used in this part 13 the term ``permit'' will refer to 
a license, permit, or certificate as the context may require and to all 
such documents issued by the Service or other authorized United States 
or foreign government agencies.

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Sec. 17.22 is amended by redesignating paragraph (c) as 
paragraph (e) and adding new paragraphs (c) and (d) to read as follows:


Sec. 17.22  Permits for scientific purposes, enhancement of propagation 
or survival, or for incidental taking.

* * * * *
    (c)(1) Application requirements for permits for the enhancement of 
survival through safe harbor agreements. You must submit an application 
for a permit under this paragraph (c) to the appropriate Regional 
Director, U.S. Fish and Wildlife Service, for the Region where you 
reside or where the proposed activity is to occur (for appropriate 
addresses see 50 CFR 10.22) if you wish to engage in any activity 
prohibited by Sec. 17.21. You must submit an official application form 
(3-200.54) provided by the Service and must include as an attachment 
all of the following information:
    (i) The common and scientific names of the listed species for which 
the applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization and the 
agreed upon baseline conditions;
    (iii) A description of management activities that the applicant 
will voluntarily undertake or forgo that will provide a net 
conservation benefit to covered species and a description of how such 
activities will provide a net conservation benefit to the affected 
species by contributing to the recovery of listed species covered by 
the permit; and,
    (iv) A description of regulatory assurances requested by the 
applicant.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director must consider the 
general issuance criteria in Sec. 13.21(b) of this subchapter and may 
issue the permit if he or she expects or finds:
    (i) The take to be incidental to an otherwise lawful activity and 
be in accordance with the terms of the safe harbor agreement;
    (ii) The implementation of the terms of the safe harbor agreement 
will provide a net conservation benefit to the affected listed species 
by contributing to the recovery of listed species included in the 
permit;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any listed species;
    (iv) Implementation of the terms of the safe harbor agreement is 
consistent with applicable State laws and regulations;
    (v) Implementation of the terms of the safe harbor agreement will 
not be in conflict with any ongoing conservation or recovery programs 
for listed species covered by the permit; and
    (vi) The applicant has shown capability and commitment to 
implementing all of the terms of the safe harbor agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (c) is subject to the following special 
conditions:
    (i) A requirement for the participating property owner to notify 
the Service of any transfer of lands subject to a safe harbor 
agreement;
    (ii) A requirement for the property owner to notify the Service, as 
far in advance as possible, of when he or she expects to incidentally 
take any listed species covered under the permit. Such notification 
will provide the Service with an opportunity to translocate affected 
individuals of the species, if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the safe harbor agreement.
    (4) Duration of permits. The duration of permits issued under this 
paragraph (c) must be sufficient to provide a net conservation benefit 
to species covered in the enhancement of survival permit. In 
determining the duration of a permit, the Director will consider the 
duration of the planned activities, as well as the positive and 
negative effects associated with permits of the proposed duration on 
covered species, including the extent to which the conservation 
activities included in the safe harbor agreement will enhance the 
survival and contribute to the recovery of listed species included in 
the permit.
    (5) Permit effective date. Permits issued under this paragraph (c) 
become effective the day of issuance for species covered by the safe 
harbor agreement.
    (d)(1) Application requirements for permits for the enhancement of 
survival through candidate conservation agreements. You must submit an 
application for a permit under this paragraph (d) to the appropriate 
Regional Director, U.S. Fish and Wildlife Service, for the Region where 
you reside or where the proposed activity is to occur (for appropriate 
addresses see 50 CFR 10.22). You must apply for an enhancement of 
survival permit application when the agreement is finalized, not at the 
time of species' listing, if you wish to engage in any activity 
prohibited by Sec. 17.21 after a candidate, proposed, or other unlisted 
species likely to become a candidate or proposed species in the near 
future and are covered in a candidate conservation agreement is listed 
as an endangered species. You must submit an official application form 
(3-200.54) provided by the Service and must include as an attachment 
all of the following information:
    (i) The common and scientific names of the species for which the 
applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization;
    (iii) A description of the conservation and enhancement activities 
to be voluntarily undertaken by the permit applicant and how those 
activities are expected to be sufficient to remove the threat(s) to 
proposed, candidate, or other unlisted species that may become a 
candidate or proposed species in the near future and are covered by the 
candidate conservation agreement if such actions were undertaken by 
other property owners similarly situated within the range of the 
species; and
    (iv) A description of regulatory assurances requested by the 
applicant.

[[Page 32193]]

    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (d)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director must consider the 
general issuance criteria in Sec. 13.21(b) of this subchapter and may 
issue the permit if he or she expects or finds:
    (i) The take to be incidental to an otherwise lawful activity and 
to be in accordance with the terms of the candidate conservation 
agreement;
    (ii) The implementation of the terms of the candidate conservation 
agreement are expected to be sufficient to remove the threat(s) to 
proposed, candidate, or other unlisted species that may become a 
candidate or proposed species in the near future and are covered by the 
agreement if such actions were undertaken by other property owners 
similarly situated within the range of the species. This does not mean 
that an individual permittee is responsible for bearing the entire 
conservation needs of covered species included in an enhancement of 
survival permit; rather, if similarly situated property owners 
undertook the same sort of conservation activities within the range of 
the species, the need to list would be obviated.
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any species;
    (iv) Implementation of the terms of the candidate conservation 
agreement will not be in conflict with any ongoing conservation 
programs for species covered by the permit;
    (v) Implementation of the terms of the candidate conservation 
agreement is consistent with applicable State laws and regulations; and
    (vi) The applicant has shown capability and commitment to 
implementing all of the terms of the candidate conservation agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in Part 13 of this subchapter, every permit issued 
under this paragraph (d) is subject to the following special 
conditions:
    (i) A requirement for the property owner to notify the Service of 
any transfer of lands subject to a candidate conservation agreement;
    (ii) A requirement for the property owner to notify the Service, as 
far in advance as possible, of when he or she expects to incidentally 
take any species covered under the permit. Such notification will 
provide the Service with an opportunity to translocate affected 
individual of the species, if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the candidate conservation agreement.
    (4) Duration of the Candidate Conservation Agreement. The duration 
of a candidate conservation agreement covered by a permit issued under 
this paragraph (d) must be sufficient to remove threat(s) to proposed, 
candidate, or other unlisted species that may become a candidate or 
proposed species in the near future and are covered by a candidate 
conservation agreement. The duration of the candidate conservation 
agreement can vary, however, assurances are only provided when the 
agreement is in effect.
    (5) Permit effective date. Permits issued under this paragraph (d) 
become effective for a species covered by a candidate conservation 
agreement on the effective date of a final rule that lists a covered 
species as endangered.
* * * * *

Subpart D--Threatened Wildlife [Amended]

    3. In section 17.32 paragraphs (c) and (d) are added to read as 
follows:


Sec. 17.32  Permits--general.

* * * * *
    (c)(1) Application requirements for permits for the enhancement of 
survival through safe harbor agreements. You must submit an application 
for a permit under this paragraph (c) to the appropriate Regional 
Director, U.S. Fish and Wildlife Service, for the Region where you 
reside or where the proposed action is to occur (for appropriate 
addresses see 50 CFR 10.22) if you wish to engage in any activity 
prohibited by Sec. 17.31. You must submit an official application form 
(3-200.54) provided by the Service and must include as an attachment 
all of the following information:
    (i) The common and scientific names of the listed species for which 
the applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization and the 
agreed upon baseline conditions;
    (iii) A description of management activities that the applicant 
will voluntarily undertake or forgo that will provide a net 
conservation benefit to covered species; and,
    (iv) A description of regulatory assurances requested by the 
applicant.
    (2) Public review. The Director must publish notice in the Federal 
Register of each application for a permit that is made under this 
paragraph (c). Each notice must invite the submission from interested 
parties within 30 days after the date of the notice of written data, 
views, or arguments with respect to the application. The procedures 
included in Sec. 17.22(e) for permit objection apply to any notice 
published by the Director under this paragraph (c).
    (3) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director must consider the 
general issuance criteria in Sec. 13.21(b) of this subchapter and may 
issue the permit if he or she expects or finds:
    (i) The take to be incidental to an otherwise lawful activity and 
to be in accordance with the terms of the safe harbor agreement;
    (ii) The implementation of the terms of the safe harbor agreement 
will provide a net conservation benefit to the affected species by 
contributing to the recovery included in the permit;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any listed species;
    (iv) Implementation of the terms of the safe harbor agreement is 
consistent with applicable State laws and regulations;
    (v) Implementation of the terms of the safe harbor agreement will 
not be in conflict with any ongoing conservation programs for species 
covered by the permit; and
    (vi) The applicant has shown capability and commitment to 
implementing all of the terms of the safe harbor agreement.
    (4) Permit conditions. In addition to any applicable general permit 
conditions set forth in Part 13 of this subchapter, every permit issued 
under this paragraph is subject to the following special conditions:
    (i) A requirement for the participating property owner to notify 
the Service of any transfer of lands subject to a safe harbor 
agreement;
    (ii) A requirement for the property owner to notify the Service, as 
far in advance as possible, of when he or she expects to take any 
listed species covered under the permit. Such notification will provide 
the Service with an opportunity to translocate affected individual of 
the species, if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary

[[Page 32194]]

or appropriate to carry out the purposes of the permit and the safe 
harbor agreement.
    (5) Duration of permits. The duration of permits issued under this 
paragraph (c) must be sufficient to provide a net conservation benefit 
to listed species covered in the enhancement of survival permit. In 
determining the duration of a permit, the Director will consider the 
duration of the planned activities, as well as the positive and 
negative effects associated with permits of the proposed duration on 
covered species, including the extent to which the conservation 
activities included in the safe harbor agreement will enhance the 
survival and contribute to the recovery of listed species included in 
the enhancement of survival permit.
    (6) Permit effective date. Permits issued under this paragraph (c) 
become effective the day of issuance for a species covered by the safe 
harbor agreement.
    (d)(1) Application requirements for permits for the enhancement of 
survival through candidate conservation agreements. You must submit an 
application for a permit under this paragraph (d) to the appropriate 
Regional Director, U.S. Fish and Wildlife Service, for the Region where 
you reside or where the proposed activity is to occur (for appropriate 
addresses see 50 CFR 10.22). You must apply for an enhancement of 
survival permit application when the agreement is finalized, not at the 
time of species' listing, if you wish to engage in any activity 
prohibited by Sec. 17.31 after a candidate, proposed, or other unlisted 
species that may become listed in the near future and are covered in a 
candidate conservation agreement is listed as a threatened species. The 
permit will become valid if and when covered proposed, candidate or 
other unlisted species is listed as a threatened species. You must 
submit an official application form (3-200.54) provided by the Service 
and must include as an attachment all of the following information:
    (i) The common and scientific names of the species for which the 
applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization;
    (iii) A description of the conservation and enhancement activities 
to be voluntarily undertaken by the permit applicant and how those 
activities are expected to be sufficient to remove the threat(s) to 
proposed, candidate, or other unlisted species that may become a 
candidate or proposed species and are covered by the candidate 
conservation agreement, if such action were undertaken by other 
property owners similarly situated within the range of the species; 
and,
    (iv) A description of the regulatory assurances requested by the 
applicant.
    (2) Public review. The Director must publish notice in the Federal 
Register of each application for a permit that is made under this 
paragraph (d). Each notice must invite the submission from interested 
parties within 30 days after the date of the notice of written data, 
views, or arguments with respect to the application. The procedures 
included in Sec. 17.22(e) for permit objection apply to any notice 
published by the Director under this paragraph (d).
    (3) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (d)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director must consider the 
general issuance criteria in Sec. 13.21(b) of this subchapter and may 
issue the permit if he or she expects or finds:
    (i) The take to be incidental to an otherwise lawful activity and 
to be in accordance with the terms of the candidate conservation 
agreement;
    (ii) The implementation of the terms of the candidate conservation 
agreement are expected to be sufficient to remove the threat(s) to 
proposed, candidate, or other unlisted species that may become a 
candidate or proposed species and are covered by the agreement if such 
actions were undertaken by other property owners similarly situated 
within the range of the species. This does not mean that an individual 
permittee is responsible for bearing the entire conservation needs of a 
proposed, candidate, or other covered unlisted species included in an 
enhancement of survival permit; rather, if similarly situated property 
owners undertook the same sort of conservation actions within the range 
of the species, the need to list would be obviated.
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any species;
    (iv) Implementation of the terms of the candidate conservation 
agreement will not be in conflict with any ongoing conservation 
programs for species covered by the permit;
    (v) Implementation of the terms of the candidate conservation 
agreement is consistent with applicable State laws and regulations; and
    (vi) The applicant has shown capability and commitment to 
implementing all of the terms of the candidate conservation agreement.
    (4) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph is subject to the following special conditions:
    (i) A requirement for the property owner to notify the Service of 
any transfer of lands subject to a candidate conservation agreement;
    (ii) A requirement for the property owner to notify the Service, as 
far in advance as possible, of when he or she expects to incidentally 
take any species covered under the permit. Such notification will 
provide the Service with an opportunity to translocate affected 
individual of the species, if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the candidate conservation agreement.
    (5) Duration of the Candidate Conservation Agreement. The duration 
of a candidate conservation agreement covered by a permit issued under 
this paragraph (d) must be sufficient to remove threat(s) to proposed, 
candidate, or other unlisted species covered by a candidate 
conservation agreement. The duration of the candidate conservation 
agreement can vary, however, assurances are only provided when the 
agreement is in effect.
    (6) Permit effective date. Permits issued under this paragraph (d) 
become effective on the effective date of a final rule that lists a 
species covered by a candidate conservation agreement and included in a 
permit as threatened.

    Dated: May 23, 1997.
Donald J. Barry,
Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of 
Interior.
[FR Doc. 97-15251 Filed 6-9-97; 1:26 pm]
BILLING CODE 4310-55-P