[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32706-32716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15255]



[[Page 32705]]

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Part IV





Department of The Interior





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Fish and Wildlife Service



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Department of Commerce





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National Oceanic and Atmospheric Administration



National Marine Fisheries Service



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50 CFR 13 and 17



Safe Harbor Agreements and Candidate Conservation Agreements With 
Assurances; Announcement of Final Safe Harbor Policy; Announcement of 
Final Policy for Candidate Conservation Agreements With Assurances; 
Final Rule and Notices

  Federal Register / Vol. 64, No. 116 / Thursday, June 17, 1999 / Rules 
and Regulations  

[[Page 32706]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR 13 and 17

RIN 1018-AD95


Safe Harbor Agreements and Candidate Conservation Agreements With 
Assurances

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: This rule contains the U.S. Fish and Wildlife Service's 
(Service) final regulatory changes to Part 17 of Title 50 of the Code 
of Federal Regulations (CFR) necessary to implement two final policies 
developed by the Service and the National Marine Fisheries Service 
(NMFS) under the Endangered Species Act (Act)--the Safe Harbor and the 
Candidate Conservation Agreement with Assurances policies published in 
today's Federal Register. NMFS will develop separate regulatory changes 
to implement these policies.
    This rule also contains several amendments to parts 13 and 17 of 
title 50 of the CFR that alter the applicability of the Service's 
general permitting regulations in 50 CFR part 13 to permits issued 
under section 10 of the Act for Habitat Conservation Plans, Safe Harbor 
Agreements, and Candidate Conservation Agreements with Assurances.

DATES: This rule is effective July 19, 1999.

ADDRESSES: To obtain copies of the final rule or for further 
information, contact Chief, Division of Endangered Species, U.S. Fish 
and Wildlife Service, 452 ARLSQ, Washington, D.C., 20240 (Telephone 
703/358-2171, Facsimile 703/358-1735).

FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division 
of Endangered Species (Telephone (703/358-2171), Facsimile (703/358-
1735)).

SUPPLEMENTARY INFORMATION: These final regulations and the background 
information regarding the final rule apply to the U.S. Fish and 
Wildlife Service only. Therefore, the use of the terms Service and 
``we'' in this notice refers exclusively to the U.S. Fish and Wildlife 
Service. The proposed rule on Safe Harbor Agreements and Candidate 
Conservation Agreements with Assurances was issued on June 12, 1997 (62 
FR 32189). We revised the proposed rule based on public comments we 
received, because of further consideration of the proposed rule, and to 
reflect the revisions to the Safe Harbor and Candidate Conservation 
Agreements with Assurances policies the rule is intended to implement 
(see Final Safe Harbor and Candidate Conservation Agreements with 
Assurances policies published in today's Federal Register). This rule 
does not finalize the proposed changes to part 13 that were published 
on September 5, 1995 (60 FR 46087), which are still pending.

Background

    The Service administers a variety of conservation laws that 
authorize the issuance of certain permits for otherwise prohibited 
activities. In 1974, we published 50 CFR part 13 to consolidate the 
administration of its various permitting programs. Part 13 established 
a uniform framework of general administrative conditions and procedures 
that would govern the application, processing, and issuance of all 
Service permits. We intended the general part 13 permitting provisions 
to be in addition to, and not in lieu of, other more specific 
permitting requirements of Federal wildlife laws.
    Subsequent to the 1974 publication of part 13, we added many 
wildlife regulatory programs to Title 50 of the CFR. For example, we 
added part 18 in 1974 to implement the Marine Mammal Protection Act, 
modified and expanded part 17 in 1975 to implement the Act, and added 
part 23 in 1977 to implement the Convention on International Trade in 
Endangered Species of Fauna and Flora (CITES). These parts contained 
their own specific permitting requirements in addition to the general 
permitting provisions of part 13.
    In most instances, the combination of part 13's general permitting 
provisions and part 17's specific Act permitting provisions have worked 
well since 1975. However, in three areas of emerging permitting policy 
under the Act, the ``one size fits all'' approach of part 13 is 
inappropriately constraining and narrow. These three areas involve 
Habitat Conservation Planning, Safe Harbor Agreements, and Candidate 
Conservation Agreements with Assurances.
    Congress amended section 10(a)(1) of the Act in 1982 to authorize 
incidental take permits associated with Habitat Conservation Plans 
(HCP). Many HCP permits involve long-term conservation commitments that 
run with the affected land for the life of the permit or longer. We 
negotiate such long-term permits recognizing that a succession of 
owners may purchase or resell the affected property during the term of 
the permit. The Service does not view this as a problem, where the 
requirements of such permits run with the land and successive owners 
agree to the terms of the HCP. Property owners similarly do not view 
this as a problem so long as we can easily transfer incidental take 
authorization from one purchaser to another.
    In other HCP situations, the HCP permittee may be a State or local 
agency that intends to sub-permit or blanket the incidental take 
authorization to hundreds if not thousands of its citizens. We do not 
view this as a problem so long as the original agency permittee abides 
by, and ensures compliance with, the terms of the HCP.
    The above HCP scenarios are not easily reconcilable with certain 
sections of part 13. For example, 50 CFR sections 13.24 and 13.25 
impose significant restrictions on permit right of succession or 
transferability. While these restrictions are well justified for most 
wildlife permitting situations, they impose inappropriate and 
unnecessary limitations for HCP permits where the term of the permit 
may be lengthy and the parties to the HCP foresee the desirability of 
simplifying sub-permitting and permit transference from one property 
owner to the next, or from a State or local agency to citizens under 
their jurisdiction.
    Similar problems also could arise in attempting to apply the 
general part 13 permitting requirements to permits issued under part 17 
to implement Safe Harbor or Candidate Conservation Agreements with 
Assurances. A major incentive for property owner participation in the 
Safe Harbor or Candidate Conservation programs is the long-term 
certainty the programs provide, including the certainty that the 
incidental take authorization will run with the land if it changes 
hands and the new owner agrees to be bound by the terms of the original 
Agreement. Property owners could view the present limitations in 
several sections (e.g., sections 13.24 and 13.25) as impediments to the 
development of these Agreements.
    The proposed rule would have addressed these potential problems by 
revising section 13.3, the Scope of Regulations provision in part 13, 
to provide that the specific provisions in a particular HCP, Safe 
Harbor, or Candidate Conservation Agreement permit and associated 
documents would control whenever they were in conflict with the general 
provisions of the part 13 regulations. After further consideration, we 
have determined that it is more appropriate to address these potential 
conflicts by promulgating revisions to parts 13 and 17 that identify 
the specific instances in which the

[[Page 32707]]

permit procedures for HCP, Safe Harbor, and Candidate Conservation 
Agreement permits will differ from the general part 13 permit 
procedures. For a fuller discussion of these revisions to parts 13 and 
17, see ``Description of the Final Rule,'' below.
    It is important to note that we proposed other amendments to 
section 13.3 on September 5, 1995 (60 FR 46087). Those changes would, 
among other things, provide an explanation of the term ``permit'' 
needed to refer correctly to CITES requirements, state the scope of 
part 13's requirements clearly, and ensure that the up-to-date titles 
of several parts of 50 CFR are used. However, the September 5, 1995, 
proposal did not deal with the potential conflicts between the general 
provisions included in part 13 and the specific provisions for 
incidental take and enhancement of survival permits under part 17. This 
final rule does not amend the language included in the September 5, 
1995, proposal which is still pending.
    Finally, we also proposed to add four new sub-sections to part 17 
that would govern the issuance of endangered or threatened species 
``enhancement of survival'' permits under section 10(a)(1)(A) of the 
Act for activities conducted under Safe Harbor or Candidate 
Conservation Agreements with Assurances.

Overview of Safe Harbor Agreement and Candidate Conservation 
Agreement With Assurances Programs

    The information below briefly describes these two programs. For 
more details on these two programs, see the two final policies also 
published in today's Federal Register.
    Much of the nation's current and potential habitat for listed, 
proposed, and candidate species exists on property owned by private 
citizens, States, municipalities, Tribal governments, and other non-
Federal entities. Conservation efforts on non-Federal lands are 
critical to the long-term conservation of many declining species. More 
importantly, a collaborative stewardship approach is critical for the 
success of such an initiative. Many property owners would be willing to 
manage their lands voluntarily to benefit fish, wildlife, and plants, 
especially those that are declining, provided that they are not 
subjected to additional regulatory restrictions as a result of their 
conservation efforts. Beneficial management could include actions to 
maintain habitat or improve habitat (e.g., restoring fire by prescribed 
burning, restoring properly functioning hydrological conditions). 
Property owners are particularly concerned about land-use restrictions 
that might result if listed species colonize their lands or increase in 
numbers or distribution because of the property owners' conservation 
efforts, or if species subsequently become listed as a threatened or 
endangered species. The potential for future restrictions has led many 
property owners to avoid or limit land or water management practices 
that could enhance or maintain habitat and benefit or attract fish and 
wildlife that are listed or may be listed in the future.
    The purpose of the Safe Harbor Policy is to ensure consistency in 
the development of Safe Harbor Agreements. Under a Safe Harbor 
Agreement, participating property owners voluntarily undertake 
management activities on their property to enhance, restore, or 
maintain habitat benefiting federally listed species. Safe Harbor 
Agreements encourage private and other non-Federal property owners to 
implement conservation efforts for listed species by assuring property 
owners they will not be subjected to increased property-use 
restrictions if their efforts attract listed species to their 
properties or increase the numbers or distribution of listed species 
already present on their properties. We will closely coordinate 
development of Safe Harbor Agreements with the appropriate State fish 
and wildlife or other agencies and any affected Native American Tribal 
governments. Collaborative stewardship with State fish and wildlife 
agencies is particularly important given the critical partnership 
between the Service and the States in recovering listed species.
    The ultimate goal of Candidate Conservation Agreements with 
Assurances is, to remove enough threats to the covered species to 
preclude any need to list them as threatened or endangered under the 
Act. Proposed and candidate species may be the subject of a Candidate 
Conservation Agreement. Certain other unlisted species that are likely 
to become a candidate or proposed species in the near future may also 
be the subject of a Candidate Conservation Agreement. These Agreements 
are different from Safe Harbor Agreements (which involve the presence 
of at least one listed species) in that they provide conservation 
benefits exclusively to candidate and proposed species of fish, 
wildlife, and plants. The substantive requirements of activities 
carried out under Candidate Conservation Agreements with Assurances, if 
undertaken on a broad enough scale by other property owners similarly 
situated, should be expected to preclude any need to list species 
covered by the Agreement as threatened or endangered under the Act.

Summary of Proposed Rule

    As discussed above, the proposed rule issued on June 12, 1997 (62 
FR 32189), would have revised section 13.3, the Scope of Regulations 
provision in part 13, to provide that the specific provisions in a 
particular HCP, Safe Harbor, or Candidate Conservation Agreement permit 
and associated documents would control whenever they were in conflict 
with the general provisions of the part 13 regulations. The proposed 
rule also would have added four new subsections to 50 CFR part 17. 
These subsections would govern the issuance of ``enhancement of 
survival'' permits under section 10(a)(1)(A) of the Act for activities 
conducted under Safe Harbor Agreements or Candidate Conservation 
Agreements with Assurances for endangered species (50 CFR 17.22(c) and 
(d), respectively), and threatened species (50 CFR 17.32(c) and (d), 
respectively). These sub-sections were designed to ensure consistent 
application of the Safe Harbor Agreements and Candidate Conservation 
Agreements with Assurances programs, and are the legal mechanism for us 
to provide the necessary assurances to non-Federal landowners 
participating in these programs. Permits issued to provide assurances 
for activities to be conducted under a Candidate Conservation Agreement 
with Assurances only become effective upon the effective date of a 
final rule listing any of the covered species as threatened or 
endangered.

Summary of Received Comments

    We received only two specific comments related to the proposed 
regulations, although more than 300 letters were received regarding the 
policies these regulatory changes are intended to implement. This final 
rule reflects changes needed to implement the final policies, which 
were revised to address comments received on the proposed policies. We 
address here only the two comments directly related to these 
regulations. For detailed discussions of the issues raised by 
commenters relative to the policies and the Service's responses, please 
refer to the final policies also published in today's Federal Register.
    Issue 1. A commenter raised concerns regarding the opportunity for 
public review of permits issued under 50 CFR part 17. 22(c)(1) [Safe 
Harbor permits] and 17.22(d)(1) [Candidate Conservation Agreement with 
Assurances permits] for species listed as endangered.

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    Response 1. The proposed rule did not reduce the opportunity for 
public involvement in the issuance of these permits. The commenter 
apparently was unaware that all applications for permits issued under 
50 CFR 17.22 (permits for species listed as endangered) are already 
required to undergo public review and comment. ``Each notice shall 
invite the submission from interested parties, within 30 days after the 
date of the notice, of written data, views, or arguments with respect 
to the application'' (50 CFR 17.22). Therefore, it is clear that the 
current regulations governing these permits already require public 
review and comment on permit applications filed, and to add a specific 
review requirement for these permits would be redundant. The commenter 
was probably confused by the inclusion of specific public review 
requirements for threatened species permits issued under 50 CFR part 
17.32 (c)(1) [Safe Harbor permits] and 17.32 (d)(1) [Candidate 
Conservation Agreement permits]. In contrast to 50 CFR 17.22, 50 CFR 
17.32 generally does not require public review and comment on permits, 
although the specific provisions for threatened species incidental take 
permits do require such notice and comment (see 50 CFR 17.32 
(b)(1)(ii)). To ensure an open and public process for the evaluation 
and issuance of permits to provide assurances to non-Federal landowners 
participating under the Safe Harbor and Candidate Species Conservation 
Agreements with Assurances policies, we have included similar public 
review requirements for these permits. The inclusion of these new 
provisions under 50 CFR 17.32 (c)(2) and 50 CFR 17.32 (d)(2) will 
ensure ample and meaningful public participation in this process.
    Issue 2. Several commenters expressed concerns regarding the 
inability of landowners to terminate both Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances/Permits before their 
expiration dates, especially since these are voluntary Agreements.
    Response 2. We agree that it is reasonable to include ``early-out'' 
provisions in these Agreements and in this final rule. We acknowledge 
that in some circumstances, such as family illnesses, financial 
hardships, and economically profitable ventures, landowners may need to 
terminate Agreements prior to their expiration dates. The final rule 
has been revised to provide for such opportunities, while ensuring that 
the agreed upon baseline conditions are not eroded and that we have an 
opportunity to translocate affected individuals of covered species.

Revisions to the Proposed Rule

    The regulations have been revised to accommodate needs identified 
during the public review and comment period. This accommodation will 
facilitate our implementation of these programs and participation by 
interested non-Federal landowners. The proposed rule provided that the 
specific provisions in a particular HCP, Safe Harbor, or Candidate 
Conservation Agreement permit and associated documents would control 
whenever they were in conflict with the provisions of the general part 
13 permit regulations. The final rule instead includes specific 
revisions to parts 13 and 17 that identify the particular instances in 
which the permit procedures for HCP, Safe Harbor, and Candidate 
Conservation Agreement permits will differ from the general part 13 
permit procedures. For a fuller discussion of these revisions to parts 
13 and 17, see ``Description of the Final Rule,'' below. The final rule 
also includes a provision to allow for the termination of an Agreement 
and permit prior to their expiration dates. Because of the voluntary 
nature of the Safe Harbor Agreements and Candidate Conservation 
Agreements with Assurances, it is appropriate to provide these ``early-
out'' options to program participants. Based on our past experience 
with voluntary habitat management programs (e.g., Partners for Fish and 
Wildlife), we expect that only a minor fraction of all participating 
landowners will invoke this option. We require ``early-out'' 
participants to provide us with prior notification. This will 
facilitate our ability to translocate any potentially affected 
individuals of a covered species. In addition, the final rule reflects 
revisions needed to implement revisions in the final Safe Harbor and 
Candidate Conservation Agreements with Assurances policies. For a full 
description of these revisions, see the final Safe Harbor and Candidate 
Conservation Agreements with Assurances policies published in today's 
Federal Register.

Description/Overview of the Final Rule

    The final rule codifies minimum permit requirements and conditions 
that must be met in order for participating non-Federal landowners to 
receive the assurances under a Safe Harbor or a Candidate Species 
Conservation Agreement with Assurances. These permits, issued under 50 
CFR part 17, are for activities to be voluntarily conducted under a 
Safe Harbor Agreement and/or a Candidate Conservation Agreement with 
Assurances.
    As discussed above, the final rule does not adopt the proposal to 
amend section 13.3 to clarify that the specific provisions of an HCP, 
Safe Harbor Agreement, or Candidate Conservation Agreement would 
control wherever they conflict with the general permit provisions of 
part 13. We did not receive any public comments on this proposal, 
including any comments objecting to the proposal. However, we decided 
instead to include in the final rule specific amendments to parts 13 
and 17 that will dictate when the permitting requirements for HCP, Safe 
Harbor, and Candidate Conservation Agreement permits will vary from the 
general part 13 requirements. We believe these amendments will achieve 
the proposal's purpose of avoiding potential conflicts between these 
permits and the general part 13 requirements, while more clearly 
informing potential applicants and the interested public of the ways in 
which the requirements for HCP, Safe Harbor, and Candidate Conservation 
Agreement permits differ from the general permit requirements. The 
specific changes are as follows:
    1. Section 13.21(b)(4) generally prevents the Service from issuing 
a permit for an activity that ``potentially threatens a wildlife or 
plant population.'' This is unnecessary and might even be confusing for 
HCPs, Safe Harbor Agreements, and Candidate Conservation Agreements 
with Assurances, since the HCP and Candidate Conservation Agreement 
with Assurances permit issuance criteria already incorporate a 
requirement that the permitted activity cannot be likely to jeopardize 
the continued existence of a species and since Safe Harbor Agreement 
permits must meet a net benefit test. The final rule therefore revises 
the HCP permit issuance criteria in sections 17.22(b)(2) and 
17.32(b)(2) to except HCP permits from section 13.21(b)(4) and includes 
in the final Safe Harbor Agreement and Candidate Conservation Agreement 
with Assurances permit regulations a similar exception from section 
13.21(b)(4).
    2. Section 13.23(b)(4) generally reserves to the Service the right 
to amend permits ``for just cause at any time.'' The final rule revises 
this provision to clarify that the Service's reserved right to amend 
HCP, Safe Harbor Agreement, and Candidate Conservation Agreement with 
Assurances permits must be exercised consistently with the assurances 
provided to HCP, Safe Harbor Agreement, and Candidate Conservation

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Agreement with Assurances permit holders in their permits and in the 
HCP, Safe Harbor Agreement, and Candidate Conservation Agreement with 
Assurances permit regulations.
    3. Section 13.24 is revised in the final rule to provide a more 
streamlined approach to rights of succession for HCP, Safe Harbor 
Agreement, and Candidate Conservation Agreement with Assurances permits 
and section 13.25 is revised to provide for greater transferability of 
these permits. As explained in the proposed rule, the restrictions 
sections 13.24 and 13.25 impose on permit succession and 
transferability are justified for most wildlife permitting situations, 
but they are inappropriate and unnecessary for HCP, Safe Harbor 
Agreement, and Candidate Conservation Agreement with Assurances 
permits. These permits may involve substantial long-term conservation 
commitments, and the Service negotiates such long-term permits 
recognizing that there may be succession or transfer in ownership 
during the term of the permit. Revised sections 13.24 and 13.25 allow 
this as long as the successor or transferor owners meet the general 
qualifications for holding the permit and agree to the terms of the 
HCP, Safe Harbor Agreement, or Candidate Conservation Agreement with 
Assurances. Under revised section 13.25(d), any person under the direct 
control of a State or local governmental entity that has been issued a 
permit may carry out the activity authorized by the permit if (1) they 
are under the jurisdiction of the governmental entity and the permit 
provides that they may carry out the authorized activity, or (2) they 
have been issued a permit by the governmental entity or executed a 
written instrument with the governmental entity pursuant to the terms 
of an implementing agreement.
    4. The final rule adds a new subparagraph (7) to sections 17.22(b) 
and 17.32(b) to make clear that HCP permittees remain responsible for 
mitigation required under the terms of their permits even after 
surrendering their permits. We have required this approach in many 
HCPs. The general provision in section 13.26 is silent on this issue 
and could have been interpreted as not requiring any further actions 
after surrender of an incidental take permit, even if mitigation were 
owed under the terms of the permit for take that had already occurred.
    5. The final rule modifies the permit revocation criteria in 
section 13.28(a) to provide that the section 13.28(a)(5) criterion 
shall not apply to HCP, Safe Harbor Agreement, and Candidate 
Conservation Agreement with Assurances permits. The Service determined 
that it would be more appropriate to refer instead to the statutory 
issuance criterion in 16 U.S.C. 1539(a)(2)(B)(iv) that prohibits the 
issuance of an incidental take permit unless the Service finds the 
permit is not likely to jeopardize the continued existence of the 
species. The final rule therefore includes in the specific regulations 
for HCP permits a provision (sections 17.22(b)(8) and 17.32(b)(8)) that 
allows a permit to be revoked if continuing the permitted activity 
would be inconsistent with 16 U.S.C. 1539(a)(2)(B)(iv). The final rule 
also includes similar provisions in the Safe Harbor Agreement and 
Candidate Conservation Agreement with Assurances regulations.
    In keeping with the ``No Surprises'' rule (sections 17.22(b)(5)-(6) 
and 17.32(b)(5)-(6)) these provisions would allow the Service to revoke 
an HCP permit as a last resort in the narrow and unlikely situation in 
which an unforeseen circumstance results in likely jeopardy to a 
species covered by the permit and the Service has not been successful 
in remedying the situation through other means. The Service is firmly 
committed, as required by the No Surprises rule, to utilizing its 
resources to address any such unforeseen circumstances. These 
principles would also apply to Safe Harbor Agreement and Candidate 
Conservation Agreement with Assurances permits.
    6. The final rule revises section 13.50 to allow more flexibility 
where the permittee is a State or local governmental entity, and has 
thus taken a leadership role and assists in implementation of the 
permit program.
    The four new sub-sections under 50 CFR part 17 are designed to 
ensure consistent application of the Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances programs. These 
regulatory changes are the legal mechanism for the Service to provide 
the necessary assurances to non-Federal landowners participating in 
these programs.

Required Determinations

Regulatory Planning and Review, Regulatory Flexibility Act, and Small 
Business Regulatory Enforcement Fairness Act

    The final rule was subject to Office of Management and Budget (OMB) 
review under Executive Order 12866.
    a. The final rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government.
    b. The final rule will not create inconsistencies with other 
agencies' actions. The final rule establishes completely voluntary 
programs for non-Federal property owners. These programs are not 
available to Federal agencies. Because Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances are entered into 
voluntarily, the final rule does not create inconsistencies with the 
actions of non-Federal agencies.
    c. The final rule will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    d. The final rule follows the policy direction set forth in the 
March 1995 Administration's 10-point plan for an effective and 
efficient implementation of the Act. In that plan the Administration 
set the precedent and the policy direction for the implementation of 
the Act. Specifically, various proposals have been published which 
provides incentives for non-Federal property owners to conserve 
species. More importantly, these proposals call for removing the 
disincentives that implementation of some provisions of the Act may 
have inadvertently imposed on non-Federal property owners.
    The Department of the Interior certifies that the final rule will 
not have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). E.O. 12866, 5 U.S.C. 601 et seq. and 5 U.S.C. 801 et seq. 
require that an agency assess the economic effects of a rule. One way 
to address this is to determine whether a credible upper bound for the 
effects of the rule is less than $100 million.
    We take that approach below by first determining the maximum number 
of Candidate Conservation Agreements with Assurances that the Service's 
budget allows it to process in a year, and then seeing whether this 
number of agreements could reasonably be expected to generate $100 
million of effects annually.
    The Service's Candidate Conservation Program budget for FY 1999 is 
approximately $6.7 million. This funding covers candidate assessment 
activities, development of traditional Candidate Conservation 
Agreements (without assurances), development and implementation of 
other candidate conservation actions, and development of Candidate 
Conservation Agreements with Assurances. The 1999 funding level for the 
Candidate Conservation

[[Page 32710]]

Program represents an increase of $1 million over the 1998 level. Some 
of the additional monies were anticipated to be used to increase 
capabilities for existing functions. However, for purposes of this 
analysis we will assume that the entire $1 million is available for 
development of Candidate Conservation Agreements with Assurances.
    The average time required for a Service biologist to develop a 
Candidate Conservation Agreement with Assurances and process a Section 
10(a)(1)(A) permit application is estimated to be about one month. 
Using an average cost index of $10,000 per employee month and adding an 
additional $5,000 to cover travel, management review, publication in 
the Federal Register, and other associated costs brings the total cost 
for development of an average Candidate Conservation Agreement with 
Assurances to $15,000. Therefore, the Service could fund the 
development of approximately 67 Candidate Conservation Agreements with 
Assurances per year at the FY 1999 funding level.
    For there to be $100 million of effects from the 67 Candidate 
Conservation Agreements with Assurances, on average a Candidate 
Conservation Agreement with Assurances would have to generate 
approximately $1.5 million in benefits. Since we expect the 
participants in the program to be relatively small entities, this is 
not a credible number for the effect of the average Candidate 
Conservation Agreement with Assurances.
    The Service's budget for FY 1999 included $5 million for a new 
activity, the Private Landowner Incentive Program. This funding covers 
the development of Safe Harbor Agreements. About half of the money will 
be used to fund Service personnel to work with landowners to develop 
Safe Harbor Agreements; the remaining funds will serve as financial 
assistance incentives to participating landowners.
    The average time required for a Service biologist to develop a Safe 
Harbor Agreement and process a Section 10(a)(1)(A) permit application 
is estimated to be about one month. Using an average cost index of 
$10,000 per employee month and adding an additional $5,000 to cover 
travel, management review, publication in the Federal Register, and 
other associated costs brings the total cost for development of an 
average Safe Harbor Agreement to $15,000. Therefore, the Service could 
fund the development of approximately 67 Safe Harbor Agreements per 
year at the FY 1999 funding level.
    For there to be $100 million of effects from the 67 Safe Harbor 
Agreements, on average a Safe Harbor Agreement to generate 
approximately $1.5 million in benefits. Since we expect the 
participants in the program to be relatively small entities, this is 
not a credible number for the effect of the average Safe Harbor 
Agreement.
    The final rule is not a major rule under 5 U.S.C. 801 et seq., the 
Small Business Regulatory Enforcement Fairness Act.
    a. The final rule will not produce an annual economic effect of 
$100 million.
    b. The final rule will not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Because property owners 
will voluntarily enter into Safe Harbor Agreements and Candidate 
Conservation Agreements with Assurances only when the effects are 
positive, the final rule will not increase costs or prices.
    c. The final rule will not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Because property owners will voluntarily enter into Safe 
Harbor Agreements and Candidate Conservation Agreements with Assurances 
only when the effects are positive, the final rule will not result in 
adverse effects.
    All non-Federal entities--individuals, small businesses, large 
corporations, State and local agencies, and private organizations--are 
eligible to participate in Safe Harbor Agreements and Candidate 
Conservation Agreements with Assurances. Although there may be some 
corporate property owners interested in developing Safe Harbor 
Agreements and Candidate Conservation Agreements with Assurances, based 
on prior experience we expect most participating properties will be 
family-owned farms and ranches. We do not expect that all Candidate 
Conservation Agreements with Assurances or Safe Harbor Agreements would 
be geographically concentrated to the degree that small entities in one 
particular area would be most affected. The impact on small ownerships 
is expected to be economically insignificant because most of these 
costs are on a per acre basis. There will also not be enough Safe 
Harbor Agreements or Candidate Conservation Agreements with Assurances 
in any given year or in any given area to lead to a substantial impact 
on a significant number of small entities.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    a. The final rule will not impose a cost of $100 million or more in 
any given year on State, local or Tribal governments or private 
entities. No additional information will be required from a non-Federal 
entity solely as a result of the final rule. Since the final rule 
establishes a completely voluntary program, there are no incremental 
costs being imposed on non-Federal landowners.
    b. The final rule will not produce a Federal mandate of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings Implication Assessment

    The Service has determined that this rule has no potential takings 
of private property implications as defined by Executive Order 12630. 
The primary reason for this determination is that this rule provides 
two voluntary programs that do not require individuals to participate 
unless they volunteer to do so.

Federalism Assessment

    This final rule will not have substantial direct effects on the 
States, in their relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among 
various levels of government. Therefore, in accordance with Executive 
Order 12612, the Service has determined that this rule does not have 
sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

    The Department of the Interior has determined that this final rule 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988.

Paperwork Reduction Act

    The Service has examined this final rule under the Paperwork 
Reduction Act of 1995 and found it to contain no requests for 
additional information or increase in the collection requirements 
associated with incidental take permits other than those already 
approved for incidental take permits with OMB approval #1018-0094, 
which has an expiration date of February 28, 2001.

National Environmental Policy Act

    The Department of the Interior has determined that the issuance of 
the rule

[[Page 32711]]

is categorically excluded under the Department's NEPA procedures in 516 
DM 2, Appendix 1.10.

Section 7 Consultation

    The Service does not need to complete a section 7 consultation on 
this final rule. An intra-Service consultation is completed prior to 
issuing enhancement of survival permits under 10(a)(1)(A) of the 
Endangered Species Act associated with individual Safe Harbor 
Agreements and Candidate Conservation Agreements with Assurances.

List of Subjects

50 CFR Part 13

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

50 CFR Part 17

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

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

PART 13--[AMENDED]

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

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

    2. Section 13.23(b) is revised to read as follows:


Sec. 13.23  Amendment of permits.

* * * * *
    (b) The Service reserves the right to amend any permit for just 
cause at any time during its term, upon written finding of necessity, 
provided that any such amendment of a permit issued under Sec. 17.22(b) 
through (d) or Sec. 17.32(b) through (d) of this subchapter shall be 
consistent with the requirements of Sec. 17.22(b)(5), (c)(5) and (d)(5) 
or Sec. 17.32(b)(5), (c)(5) and (d)(5) of this subchapter, 
respectively.
* * * * *
    3. Section 13.24 is revised to read as follows:


Sec. 13.24  Right of succession by certain persons.

    (a) Certain persons other than the permittee are authorized to 
carry on a permitted activity for the remainder of the term of a 
current permit, provided they comply with the provisions of paragraph 
(b) of this section. Such persons are the following:
    (1) The surviving spouse, child, executor, administrator, or other 
legal representative of a deceased permittee; or
    (2) A receiver or trustee in bankruptcy or a court designated 
assignee for the benefit of creditors.
    (b) In order to qualify for the authorization provided in this 
section, the person or persons desiring to continue the activity shall 
furnish the permit to the issuing officer for endorsement within 90 
days from the date the successor begins to carry on the activity.
    (c) In the case of permits issued under Sec. 17.22(b) through (d) 
or Sec. 17.32(b) through (d) of this subchapter B, the successor's 
authorization under the permit is also subject to a determination by 
the Service that:
    (1) The successor meets all of the qualifications under this part 
for holding a permit;
    (2) The successor has provided adequate written assurances that it 
will provide sufficient funding for the conservation plan or Agreement 
and will implement the relevant terms and conditions of the permit, 
including any outstanding minimization and mitigation requirements; and
    (3) The successor has provided such other information as the 
Service determines is relevant to the processing of the request.
    4. Section 13.25 is revised to read as follows:


Sec. 13.25  Transfer of permits and scope of permit authorization.

    (a) Except as otherwise provided for in this section, permits 
issued under this part are not transferable or assignable.
    (b) Permits issued under Sec. 17.22(b) through (d) or Sec. 17.32(b) 
through (d) of this subchapter B may be transferred in whole or in part 
through a joint submission by the permittee and the proposed 
transferee, or in the case of a deceased permittee, the deceased 
permittee's legal representative and the proposed transferee, provided 
the Service determines that:
    (1) The proposed transferee meets all of the qualifications under 
this part for holding a permit;
    (2) The proposed transferee has provided adequate written 
assurances that it will provide sufficient funding for the conservation 
plan or Agreement and will implement the relevant terms and conditions 
of the permit, including any outstanding minimization and mitigation 
requirements; and
    (3) The proposed transferee has provided such other information as 
the Service determines is relevant to the processing of the submission.
    (c) Except as otherwise stated on the face of the permit, any 
person who is under the direct control of the permittee, or who is 
employed by or under contract to the permittee for purposes authorized 
by the permit, may carry out the activity authorized by the permit.
    (d) In the case of permits issued under Sec. 17.22(b) through (d) 
or Sec. 17.32(b) through (d) of this subchapter to a State or local 
governmental entity, any person who is under the direct control of the 
permittee may carry out the activity authorized by the permit where:
    (1) The person is under the jurisdiction of the permittee and the 
permit provides that such person(s) may carry out the authorized 
activity; or
    (2) The person has been issued a permit by the governmental entity 
or has executed a written instrument with the governmental entity, 
pursuant to the terms of the implementing agreement.
    5. Section 13.28(a)(5) is revised to read as follows:


Sec. 13.28  Permit revocation.

    (a) * * *
    (5) Except for permits issued under Sec. 17.22(b) through (d) or 
Sec. 17.32(b) through (d) of this subchapter, the population(s) of the 
wildlife or plant that is the subject of the permit declines to the 
extent that continuation of the permitted activity would be detrimental 
to maintenance or recovery of the affected population.
* * * * *
    6. Section 13.50 is revised to read as follows:


Sec. 13.50  Acceptance of Liability.

    Except as otherwise limited in the case of permits described in 
Sec. 13.25(d), any person holding a permit under this subchapter B 
assumes all liability and responsibility for the conduct of any 
activity conducted under the authority of such permit.

PART 17--[AMENDED]

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

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

    8. Section 17.22 is amended by revising paragraph (b)(2), adding 
new paragraphs (b)(7) and (b)(8), redesignating paragraph (c) as 
paragraph (e), and adding new paragraphs (c) and (d) as follows:

[[Page 32712]]

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

* * * * *
    (b) * * *
    (2) Issuance criteria. (i) Upon receiving an application completed 
in accordance with paragraph (b)(1) of this section, the Director will 
decide whether or not a permit should be issued. The Director shall 
consider the general issuance criteria in Sec. 13.21(b) of this 
subchapter, except for Sec. 13.21(b)(4), and shall issue the permit if 
he or she finds that:
    (A) The taking will be incidental;
    (B) The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such takings;
    (C) The applicant will ensure that adequate funding for the 
conservation plan and procedures to deal with unforeseen circumstances 
will be provided;
    (D) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (E) The measures, if any, required under paragraph (b)(1)(iii)(D) 
of this section will be met; and
    (F) He or she has received such other assurances as he or she may 
require that the plan will be implemented.
    (ii) In making his or her decision, the Director shall also 
consider the anticipated duration and geographic scope of the 
applicant's planned activities, including the amount of listed species 
habitat that is involved and the degree to which listed species and 
their habitats are affected.
* * * * *
    (7) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec. 13.26 of this subchapter, a permittee under this 
paragraph (b) remains responsible for any outstanding minimization and 
mitigation measures required under the terms of the permit for take 
that occurs prior to surrender of the permit and such minimization and 
mitigation measures as may be required pursuant to the termination 
provisions of an implementing agreement, habitat conservation plan, or 
permit even after surrendering the permit to the Service pursuant to 
Sec. 13.26 of this subchapter. The permit shall be deemed canceled only 
upon a determination by the Service that such minimization and 
mitigation measures have been implemented. Upon surrender of the 
permit, no further take shall be authorized under the terms of the 
surrendered permit.
    (8) Criteria for Revocation. A permit issued under this paragraph 
(b) may not be revoked for any reason except those set forth in 
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been 
remedied in a timely fashion.
    (c)(1) Application requirements for permits for the enhancement of 
survival through Safe Harbor Agreements. The applicant must submit an 
application for a permit under this paragraph (c) to the appropriate 
Regional Director, U.S. Fish and Wildlife Service, for the Region where 
the applicant resides or where the proposed activity is to occur (for 
appropriate addresses, see 50 CFR 10.22), if the applicant wishes to 
engage in any activity prohibited by Sec. 17.21. The applicant must 
submit an official Service application form (3-200.54) that includes 
the following information:
    (i) The common and scientific names of the listed species for which 
the applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization; and
    (iii) A Safe Harbor Agreement that complies with the requirements 
of the Safe Harbor policy available from the Service.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director shall consider 
the general issuance criteria in Sec. 13.21(b) of this subchapter, 
except for Sec. 13.21(b)(4), and may issue the permit if he or she 
finds:
    (i) The take will be incidental to an otherwise lawful activity and 
will be in accordance with the terms of the Safe Harbor Agreement;
    (ii) The implementation of the terms of the Safe Harbor Agreement 
will provide a net conservation benefit to the affected listed species 
by contributing to the recovery of listed species included in the 
permit and the Safe Harbor Agreement otherwise complies with the Safe 
Harbor policy available from the Service;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any listed species;
    (iv) Implementation of the terms of the Safe Harbor Agreement is 
consistent with applicable Federal, State, and Tribal laws and 
regulations;
    (v) Implementation of the terms of the Safe Harbor Agreement will 
not be in conflict with any ongoing conservation or recovery programs 
for listed species covered by the permit; and
    (vi) The applicant has shown capability for and commitment to 
implementing all of the terms of the Safe Harbor Agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (c) is subject to the following special 
conditions:
    (i) A requirement for the participating property owner to notify 
the Service of any transfer of lands subject to a Safe Harbor 
Agreement;
    (ii) A requirement for the property owner to notify the Service at 
least 30 days in advance, but preferably as far in advance as possible, 
of when he or she expects to incidentally take any listed species 
covered under the permit. Such notification will provide the Service 
with an opportunity to translocate affected individuals of the species, 
if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the Safe Harbor Agreement.
    (4) Permit effective date. Permits issued under this paragraph (c) 
become effective the day of issuance for species covered by the Safe 
Harbor Agreement.
    (5) Assurances provided to permittee. (i) The assurances in 
paragraph (c)(5) (ii) of this section (c)(5) apply only to Safe Harbor 
permits issued in accordance with paragraph (c)(2) of this section 
where the Safe Harbor Agreement is being properly implemented, and 
apply only with respect to species covered by the Agreement and permit. 
These assurances cannot be provided to Federal agencies. The assurances 
provided in this section apply only to Safe Harbor permits issued after 
July 19, 1999.
    (ii) If additional conservation and mitigation measures are deemed 
necessary, the Director may require additional measures of the 
permittee, but only if such measures are limited to modifications 
within conserved habitat areas, if any, for the affected species and 
maintain the original terms of the Safe Harbor Agreement to the maximum 
extent possible. Additional conservation and mitigation measures will 
not involve the commitment of additional land, water or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the original terms of the Safe Harbor Agreement without the 
consent of the permittee.

[[Page 32713]]

    (6) Additional actions. Nothing in this rule will be construed to 
limit or constrain the Director, any Federal, State, local or Tribal 
government agency, or a private entity, from taking additional actions 
at its own expense to protect or conserve a species included in a Safe 
Harbor Agreement.
    (7) Criteria for revocation. A permit issued under this paragraph 
(c) may not be revoked for any reason except those set forth in 
Sec. 13.28(a) (1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in Sec. 17.22(c)(2)(iii) and the inconsistency has not been 
remedied in a timely fashion.
    (8) Duration of permits. The duration of permits issued under this 
paragraph (c) must be sufficient to provide a net conservation benefit 
to species covered in the enhancement of survival permit. In 
determining the duration of a permit, the Director will consider the 
duration of the planned activities, as well as the positive and 
negative effects associated with permits of the proposed duration on 
covered species, including the extent to which the conservation 
activities included in the Safe Harbor Agreement will enhance the 
survival and contribute to the recovery of listed species included in 
the permit.
    (d)(1) Application requirements for permits for the enhancement of 
survival through Candidate Conservation Agreements with Assurances. The 
applicant must submit an application for a permit under this paragraph 
(d) to the appropriate Regional Director, U.S. Fish and Wildlife 
Service, for the Region where the applicant resides or where the 
proposed activity is to occur (for appropriate addresses, see 50 CFR 
10.22). When a species covered by a Candidate Conservation Agreement 
with Assurances is listed as endangered and the applicant wishes to 
engage in activities identified in the Agreement and otherwise 
prohibited by Sec. 17.31, the applicant must apply for an enhancement 
of survival permit for species covered by the Agreement. The permit 
will become valid if and when covered proposed, candidate or other 
unlisted species is listed as an endangered species. The applicant must 
submit an official Service application form (3-200.54) that includes 
the following information:
    (i) The common and scientific names of the species for which the 
applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization; and
    (iii) A Candidate Conservation Agreement that complies with the 
requirements of the Candidate Conservation Agreement with Assurances 
policy available from the Service.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (d)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director shall consider 
the general issuance criteria in Sec. 13.21(b) of this subchapter, 
except for Sec. 13.21(b)(4), and may issue the permit if he or she 
finds:
    (i) The take will be incidental to an otherwise lawful activity and 
will be in accordance with the terms of the Candidate Conservation 
Agreement;
    (ii) The Candidate Conservation Agreement complies with the 
requirements of the Candidate Conservation Agreement with Assurances 
policy available from the Service;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any species;
    (iv) Implementation of the terms of the Candidate Conservation 
Agreement is consistent with applicable Federal, State, and Tribal laws 
and regulations;
    (v) Implementation of the terms of the Candidate Conservation 
Agreement will be in conflict with any ongoing conservation programs 
for species covered by the permit; and
    (vi) The applicant has shown capability for and commitment to 
implementing all of the terms of the Candidate Conservation Agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (d) is subject to the following special 
conditions:
    (i) A requirement for the property owner to notify the Service of 
any transfer of lands subject to a Candidate Conservation Agreement;
    (ii) A requirement for the property owner to notify the Service at 
least 30 days in advance, but preferably as far in advance as possible, 
of when he or she expects to incidentally take any species covered 
under the permit. Such notification will provide the Service with an 
opportunity to translocate affected individuals of the species, if 
possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the Candidate Conservation Agreement.
    (4) Permit effective date. Permits issued under this paragraph (d) 
become effective for a species covered by a Candidate Conservation 
Agreement on the effective date of a final rule that lists a covered 
species as endangered.
    (5) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (d)(5) apply 
only to permits issued in accordance with paragraph (d)(2) where the 
Candidate Conservation with Assurances Agreement is being properly 
implemented, and apply only with respect to species adequately covered 
by the Candidate Conservation with Assurances Agreement. These 
assurances cannot be provided to Federal agencies.
    (i) Changed circumstances provided for in the Agreement. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and were provided for in the 
Agreement's operating conservation program, the permittee will 
implement the measures specified in the Agreement.
    (ii) Changed circumstances not provided for in the Agreement. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and such measures were not provided 
for in the Agreement's operating conservation program, the Director 
will not require any conservation and mitigation measures in addition 
to those provided for in the Agreement without the consent of the 
permittee, provided the Agreement is being properly implemented.
    (iii) Unforeseen circumstances. (A) In negotiating unforeseen 
circumstances, the Director will not require the commitment of 
additional land, water, or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level otherwise agreed upon for the species covered by the 
Agreement without the consent of the permittee.
    (B) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, the Director may 
require additional measures of the permittee where the Agreement is 
being properly implemented, but only if such measures are limited to 
modifications within conserved habitat areas, if any, or to the 
Agreement's operating conservation program for the affected species, 
and maintain the original terms of the Agreement to the maximum extent 
possible. Additional conservation and mitigation measures will not 
involve the commitment of additional land, water or financial 
compensation or additional

[[Page 32714]]

restrictions on the use of land, water, or other natural resources 
otherwise available for development or use under the original terms of 
the Agreement without the consent of the permittee.
    (C) The Director will have the burden of demonstrating that 
unforeseen circumstances exist, using the best scientific and 
commercial data available. These findings must be clearly documented 
and based upon reliable technical information regarding the status and 
habitat requirements of the affected species. The Director will 
consider, but not be limited to, the following factors:
    (1) Size of the current range of the affected species;
    (2) Percentage of range adversely affected by the Agreement;
    (3) Percentage of range conserved by the Agreement;
    (4) Ecological significance of that portion of the range affected 
by the Agreement;
    (5) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the Agreement; 
and
    (6) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (6) Additional actions. Nothing in this rule will be construed to 
limit or constrain the Director, any Federal, State, local or Tribal 
government agency, or a private entity, from taking additional actions 
at its own expense to protect or conserve a species included in a 
Candidate Conservation with Assurances Agreement.
    (7) Criteria for revocation. A permit issued under this paragraph 
(d) may not be revoked for any reason except those set forth in 
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in paragraph (d)(2)(iii) of this section and the inconsistency 
has not been remedied in a timely fashion.
    (8) Duration of the Candidate Conservation Agreement. The duration 
of a Candidate Conservation Agreement covered by a permit issued under 
this paragraph (d) must be sufficient to enable the Director to 
determine that the benefits of the conservation measures in the 
Agreement, when combined with those benefits that would be achieved if 
it is assumed that the conservation measures would also be implemented 
on other necessary properties, would preclude or remove any need to 
list the species covered by the Agreement.
* * * * *
    9. Section 17.32 is amended by revising (b)(2) by adding (b)(7) and 
(b)(8), and adding new paragraphs (c) and (d) as follows:


Sec. 17.32  Permits--general.

* * * * *
    (b) * * *
    (2) Issuance criteria. (i) Upon receiving an application completed 
in accordance with paragraph (b)(1) of this section, the Director will 
decide whether or not a permit should be issued. The Director shall 
consider the general issuance criteria in 13.21(b) of this subchapter, 
except for 13.21(b)(4), and shall issue the permit if he or she finds 
that:
    (A) The taking will be incidental;
    (B) The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such takings;
    (C) The applicant will ensure that adequate funding for the 
conservation plan and procedures to deal with unforeseen circumstances 
will be provided;
    (D) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (E) The measures, if any, required under paragraph (b)(1)(iii)(D) 
of this section will be met; and
    (F) He or she has received such other assurances as he or she may 
require that the plan will be implemented.
    (ii) In making his or her decision, the Director shall also 
consider the anticipated duration and geographic scope of the 
applicant's planned activities, including the amount of listed species 
habitat that is involved and the degree to which listed species and 
their habitats are affected.
* * * * *
    (7) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec. 13.26 of this subchapter, a permittee under this 
paragraph (b) remains responsible for any outstanding minimization and 
mitigation measures required under the terms of the permit for take 
that occurs prior to surrender of the permit and such minimization and 
mitigation measures as may be required pursuant to the termination 
provisions of an implementing agreement, habitat conservation plan, or 
permit even after surrendering the permit to the Service pursuant to 
Sec. 13.26 of this subchapter. The permit shall be deemed canceled only 
upon a determination by the Service that such minimization and 
mitigation measures have been implemented. Upon surrender of the 
permit, no further take shall be authorized under the terms of the 
surrendered permit.
    (8) Criteria for revocation. A permit issued under this paragraph 
(b) may not be revoked for any reason except those set forth in 
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been 
remedied in a timely fashion.
    (c)(1) Application requirements for permits for the enhancement of 
survival through Safe Harbor Agreements. The applicant must submit an 
application for a permit under this paragraph (c) to the appropriate 
Regional Director, U.S. Fish and Wildlife Service, for the Region where 
the applicant resides or where the proposed action is to occur (for 
appropriate addresses, see 50 CFR 10.22), if the applicant wishes to 
engage in any activity prohibited by Sec. 17.31. The applicant must 
submit an official Service application form (3-200.54) that includes 
the following information:
    (i) The common and scientific names of the listed species for which 
the applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization;
    (iii) A Safe Harbor Agreement that complies with the requirements 
of the Safe Harbor policy available from the Service; and
    (iv) The Director must publish notice in the Federal Register of 
each application for a permit that is made under this paragraph (c). 
Each notice must invite the submission from interested parties within 
30 days after the date of the notice of written data, views, or 
arguments with respect to the application. The procedures included in 
Sec. 17.22(e) for permit objection apply to any notice published by the 
Director under this paragraph (c).
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director shall consider 
the general issuance criteria in Sec. 13.21(b) of this subchapter, 
except for Sec. 13.21(b)(4), and may issue the permit if he or she 
finds:
    (i) The take will be incidental to an otherwise lawful activity and 
will be in accordance with the terms of the Safe Harbor Agreement;
    (ii) The implementation of the terms of the Safe Harbor Agreement 
will provide a net conservation benefit to the affected listed species 
by contributing to the recovery of listed species included in the 
permit and the Safe Harbor Agreement otherwise complies with the

[[Page 32715]]

Safe Harbor policy available from the Service;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any listed species;
    (iv) Implementation of the terms of the Safe Harbor Agreement is 
consistent with applicable Federal, State, and Tribal laws and 
regulations;
    (v) Implementation of the terms of the Safe Harbor Agreement will 
not be in conflict with any ongoing conservation or recovery programs 
for listed species covered by the permit; and
    (vi) The applicant has shown capability for and commitment to 
implementing all of the terms of the Safe Harbor Agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (c) is subject to the following special 
conditions:
    (i) A requirement for the participating property owner to notify 
the Service of any transfer of lands subject to a Safe Harbor 
Agreement;
    (ii) A requirement for the property owner to notify the Service at 
least 30 days in advance, but preferably as far in advance as possible, 
of when he or she expects to incidentally take any listed species 
covered under the permit. Such notification will provide the Service 
with an opportunity to translocate affected individuals of the species, 
if possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the Safe Harbor Agreement.
    (4) Permit effective date. Permits issued under this paragraph (c) 
become effective the day of issuance for species covered by the Safe 
Harbor Agreement.
    (5) Assurances provided to permittee. (i) The assurances in 
subparagraph (ii) of this paragraph (c)(5) apply only to Safe Harbor 
permits issued in accordance with paragraph (c)(2) of this section 
where the Safe Harbor Agreement is being properly implemented, and 
apply only with respect to species covered by the Agreement and permit. 
These assurances cannot be provided to Federal agencies. The assurances 
provided in this section apply only to Safe Harbor permits issued after 
July 19, 1999.
    (ii) If additional conservation and mitigation measures are deemed 
necessary, the Director may require additional measures of the 
permittee, but only if such measures are limited to modifications 
within conserved habitat areas, if any, for the affected species and 
maintain the original terms of the Safe Harbor Agreement to the maximum 
extent possible. Additional conservation and mitigation measures will 
not involve the commitment of additional land, water or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the original terms of the Safe Harbor Agreement without the 
consent of the permittee.
    (6) Additional actions. Nothing in this rule will be construed to 
limit or constrain the Director, any Federal, State, local or Tribal 
government agency, or a private entity, from taking additional actions 
at its own expense to protect or conserve a species included in a Safe 
Harbor Agreement.
    (7) Criteria for revocation. A permit issued under this paragraph 
(c) may not be revoked for any reason except those set forth in 
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in 17.22(c)(2)(iii) and the inconsistency has not been remedied 
in a timely fashion.
    (8) Duration of permits. The duration of permits issued under this 
paragraph (c) must be sufficient to provide a net conservation benefit 
to species covered in the enhancement of survival permit. In 
determining the duration of a permit, the Director will consider the 
duration of the planned activities, as well as the positive and 
negative effects associated with permits of the proposed duration on 
covered species, including the extent to which the conservation 
activities included in the Safe Harbor Agreement will enhance the 
survival and contribute to the recovery of listed species included in 
the permit.
    (d)(1) Application requirements for permits for the enhancement of 
survival through Candidate Conservation Agreements with Assurances. The 
applicant must submit an application for a permit under this paragraph 
(d) to the appropriate Regional Director, U.S. Fish and Wildlife 
Service, for the Region where the applicant resides or where the 
proposed activity is to occur (for appropriate addresses, see 50 CFR 
10.22). When a species covered by a Candidate Conservation Agreement 
with Assurances is listed as threatened and the applicant wishes to 
engage in activities identified in the Agreement and otherwise 
prohibited by Sec. 17.31, the applicant must apply for an enhancement 
of survival permit for species covered by the Agreement. The permit 
will become valid if and when covered proposed, candidate or other 
unlisted species is listed as a threatened species. The applicant must 
submit an official Service application form (3-200.54) that includes 
the following information:
    (i) The common and scientific names of the species for which the 
applicant requests incidental take authorization;
    (ii) A description of the land use or water management activity for 
which the applicant requests incidental take authorization; and
    (iii) A Candidate Conservation Agreement that complies with the 
requirements of the Candidate Conservation Agreement with Assurances 
policy available from the Service.
    (iv) The Director must publish notice in the Federal Register of 
each application for a permit that is made under this paragraph (d). 
Each notice must invite the submission from interested parties within 
30 days after the date of the notice of written data, views, or 
arguments with respect to the application. The procedures included in 
Sec. 17.22(e) for permit objection apply to any notice published by the 
Director under this paragraph (d).
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (d)(1) of this section, the Director will 
decide whether or not to issue a permit. The Director shall consider 
the general issuance criteria in Sec. 13.21(b) of this subchapter, 
except for Sec. 13.21(b)(4), and may issue the permit if he or she 
finds:
    (i) The take will be incidental to an otherwise lawful activity and 
will be in accordance with the terms of the Candidate Conservation 
Agreement;
    (ii) The Candidate Conservation Agreement complies with the 
requirements of the Candidate Conservation Agreement with Assurances 
policy available from the Service;
    (iii) The probable direct and indirect effects of any authorized 
take will not appreciably reduce the likelihood of survival and 
recovery in the wild of any species;
    (iv) Implementation of the terms of the Candidate Conservation 
Agreement is consistent with applicable Federal, State, and Tribal laws 
and regulations;
    (v) Implementation of the terms of the Candidate Conservation 
Agreement will be in conflict with any ongoing conservation programs 
for species covered by the permit; and
    (vi) The applicant has shown capability for and commitment to 
implementing all of the terms of the Candidate Conservation Agreement.

[[Page 32716]]

    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (d) is subject to the following special 
conditions:
    (i) A requirement for the property owner to notify the Service of 
any transfer of lands subject to a Candidate Conservation Agreement;
    (ii) A requirement for the property owner to notify the Service at 
least 30 days in advance, but preferably as far in advance as possible, 
of when he or she expects to incidentally take any species covered 
under the permit. Such notification will provide the Service with an 
opportunity to translocate affected individuals of the species, if 
possible and appropriate; and
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the Candidate Conservation Agreement.
    (4) Permit effective date. Permits issued under this paragraph (d) 
become effective for a species covered by a Candidate Conservation 
Agreement on the effective date of a final rule that lists a covered 
species as threatened.
    (5) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (d)(5) apply 
only to permits issued in accordance with paragraph (d)(2) where the 
Candidate Conservation with Assurances Agreement is being properly 
implemented, and apply only with respect to species adequately covered 
by the Candidate Conservation with Assurances Agreement. These 
assurances cannot be provided to Federal agencies.
    (i) Changed circumstances provided for in the Agreement. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and were provided for in the 
Agreement's operating conservation program, the permittee will 
implement the measures specified in the Agreement.
    (ii) Changed circumstances not provided for in the Agreement. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and such measures were not provided 
for in the Agreement's operating conservation program, the Director 
will not require any conservation and mitigation measures in addition 
to those provided for in the Agreement without the consent of the 
permittee, provided the Agreement is being properly implemented.
    (iii) Unforeseen circumstances. (A) In negotiating unforeseen 
circumstances, the Director will not require the commitment of 
additional land, water, or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level otherwise agreed upon for the species covered by the 
Agreement without the consent of the permittee.
    (B) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, the Director may 
require additional measures of the permittee where the Agreement is 
being properly implemented, but only if such measures are limited to 
modifications within conserved habitat areas, if any, or to the 
Agreement's operating conservation program for the affected species, 
and maintain the original terms of the Agreement to the maximum extent 
possible. Additional conservation and mitigation measures will not 
involve the commitment of additional land, water or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the original terms of the Agreement without the consent of the 
permittee.
    (C) The Director will have the burden of demonstrating that 
unforeseen circumstances exist, using the best scientific and 
commercial data available. These findings must be clearly documented 
and based upon reliable technical information regarding the status and 
habitat requirements of the affected species. The Director will 
consider, but not be limited to, the following factors:
    (1) Size of the current range of the affected species;
    (2) Percentage of range adversely affected by the Agreement;
    (3) Percentage of range conserved by the Agreement;
    (4) Ecological significance of that portion of the range affected 
by the Agreement;
    (5) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the Agreement; 
and
    (6) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (6) Additional actions. Nothing in this rule will be construed to 
limit or constrain the Director, any Federal, State, local or Tribal 
government agency, or a private entity, from taking additional actions 
at its own expense to protect or conserve a species included in a 
Candidate Conservation with Assurances Agreement.
    (7) Criteria for revocation. A permit issued under this paragraph 
(d) may not be revoked for any reason except those set forth in 
Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation 
of the permitted activity would be inconsistent with the criterion set 
forth in paragraph (d)(2)(iii) of this section and the inconsistency 
has not been remedied in a timely fashion.
    (8) Duration of the Candidate Conservation Agreement. The duration 
of a Candidate Conservation Agreement covered by a permit issued under 
this paragraph (d) must be sufficient to enable the Director to 
determine that the benefits of the conservation measures in the 
Agreement, when combined with those benefits that would be achieved if 
it is assumed that the conservation measures would also be implemented 
on other necessary properties, would preclude or remove any need to 
list the species covered by the Agreement.

    Dated: May 11, 1999.
Donald J. Barry,
Assistant Secretary, Fish, Wildlife, and Parks, Department of the 
Interior.
[FR Doc. 99-15255 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P