[Federal Register Volume 65, Number 29 (Friday, February 11, 2000)]
[Rules and Regulations]
[Pages 6916-6921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2870]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

RIN 1018-AD95


Additional Comments Sought on Permit Regulations Relating to 
Habitat Conservation Plans, Safe Harbor Agreements, and Candidate 
Conservation Agreements With Assurances

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of request for additional comment on final rule amending 
general permitting regulations.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) published a 
final rule on June 17, 1999, amending parts 13 and 17 of title 50 of 
the Code of Federal Regulations (CFR). The final rule, among other 
things, contained a number of changes to existing Service regulations 
that apply to permits issued under the authority of the Endangered 
Species Act of 1973, as amended (Act). The changes were designed to 
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. We are seeking additional 
public comment on a number of the regulatory changes finalized in the 
June 17, 1999, rule. During the period in which additional public 
comments are solicited, the regulations published in the final rule of 
June 17, 1999, will remain in full force and effect. Based on public 
comments received, we will decide whether portions of the June 17, 1999 
final rule should be reproposed. Aspects of the June 17, 1999 final 
rule that are not included in this document are unaffected.

DATES: Comments must be received by March 13, 2000.

ADDRESSES: Send any comments or materials concerning this document 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 420, Arlington Square 
Building, 4401 North Fairfax Drive, Arlington, Virginia. You must make 
an appointment to examine these materials.

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

SUPPLEMENTARY INFORMATION: This notice of request for additional 
comment on the final rule, including the background information for the 
rule, that amended the general permitting regulations applies 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 final rule was published on June 17, 1999, at 
64 FR 32706. We published a correction document September 30, 1999, at 
64 FR 52676 to correct certain errors that appeared in the final 
regulations.

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 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 Endangered 
Species Act, and added part 23 in 1977 to implement the Convention on 
International Trade in Endangered Species of Wild 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 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 has been 
inappropriately

[[Page 6917]]

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 system 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 arrangement 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 activity 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 have not been 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 have imposed inappropriate and 
unnecessary limitations for HCP permits where the term of the permit 
may be lengthy and the parties to the HCP have foreseen 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 have arisen 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 Agreements with Assurances 
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 have viewed the 
limitations in several sections (e.g., sections 13.24 and 13.25) as 
impediments to the development of these Agreements.
    Because we believed that it was appropriate to address the 
potential conflicts between parts 13 and 17 of the regulations, we 
promulgated revisions to the regulations that specifically identify in 
which instances the permit procedures for HCP, Safe Harbor, and 
Candidate Conservation Agreements with Assurances permits will differ 
from the general part 13 permit procedures.

Description/Overview of the Notice Requesting Additional Comments

    This notice seeks additional public comment on the specific 
amendments to parts 13 and 17, promulgated in the June 17, 1999, final 
rule, that dictate when the permitting requirements for HCP, Safe 
Harbor, and Candidate Conservation Agreements with Assurances permits 
will vary from the general part 13 requirements. We believe specific 
regulatory amendments will achieve the 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 Agreements with Assurances permits differ from 
the general permit requirements. The specific changes on which we seek 
additional public comment 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 provision is unnecessary and might even be 
confusing for issuance criteria for permits under HCPs, Safe Harbor 
Agreements, and Candidate Conservation Agreements with Assurances, 
since the HCP and Candidate Conservation Agreements with Assurances 
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 revised 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 included in the final Safe Harbor Agreement and 
Candidate Conservation Agreement with Assurances permit regulations a 
similar exception from section 13.21(b)(4) (sections 17.22(c)(2) and 
(d)(2) and 17.32(c)(2) and (d)(2)).
    2. Section 13.23(b) generally reserves to the Service the right to 
amend permits ``for just cause at any time.'' The final rule revised 
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 
Agreement with Assurances permit holders in their permits and in the 
HCP, Safe Harbor Agreement, and Candidate Conservation Agreement with 
Assurances permit regulations.
    3. The final rule revised section 13.24 to provide a more 
streamlined approach to rights of succession for HCP, Safe Harbor 
Agreement, and Candidate Conservation Agreement with Assurances 
permits, and revised section 13.25 to provide for greater 
transferability of these permits. The restrictions that sections 13.24 
and 13.25 previously imposed on permit succession and transferability 
were justified for most wildlife permitting situations, but they were 
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 transfer 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 is under the direct control of a 
State or local governmental entity that has been issued a permit and 
may carry out the activity authorized by the permit if (1) that person 
is under the jurisdiction of the governmental entity and the permit 
provides that the person may carry out the authorized activity, or (2) 
the person has 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 added 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 was silent on

[[Page 6918]]

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 modified 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 included 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 included similar provisions for the Safe Harbor Agreement and 
Candidate Conservation Agreement with Assurances permits (sections 
17.22(c)(7) and (d)(7), and sections 17.32(c)(7) and (d)(7)).
    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 also apply to Safe Harbor Agreement and Candidate 
Conservation Agreement with Assurances permits.
    6. The final rule revised 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 is assisting in implementation of the 
permit program.
    7. The final rule added a new subparagraph (5) to sections 17.22(c) 
and (d) and 17.32(c) and (d) to provide the same ``No Surprises'' 
assurances for Safe Harbor Agreement and Candidate Conservation 
Agreement with Assurance permits that already apply to HCPs.
    To ensure that we have promulgated the most effective regulations 
possible, we seek additional comment on the above described amendments 
of June 17, 1999, to Title 50, Chapter I, subchapter B of the CFR, as 
set forth below for the convenience of the reader. The amendments 
contain the corrected language included in the September 30, 1999 
correction document. Bear in mind that these changes are currently in 
effect, and no new revision to the CFR will result from this document.


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 
Secs. 17.22(b) through (d) or 17.32(b) through (d) of this 
subchapter shall be consistent with the requirements of 
Secs. 17.22(b)(5), (c)(5), and (d)(5) or 17.32(b)(5), (c)(5), and 
(d)(5) of this subchapter, respectively.
* * * * *


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 Secs. 17.22(b) through 
(d) or 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.


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 Secs. 17.22(b) through (d) or 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 Secs. 17.22(b) through 
(d) or 17.32(b) through (d) of this subchapter to a State or local 
governmental entity, a person is under the direct control of the 
permittee 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.


Sec. 13.28  Permit revocation.

    (a) * * *
    (5) Except for permits issued under Secs. 17.22(b) through (d) 
or 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.
* * * * *


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.


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), * * *
* * * * *
    (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

[[Page 6919]]

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. * * *
    (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), * * *
* * * * *
    (5) Assurances provided to permittee. (i) The assurances in 
paragraph (c)(5)(ii) of this section 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 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. * * *
    (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), * * *
* * * * *
    (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.
* * * * *


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

[[Page 6920]]

general issuance criteria in 13.21(b) of this subchapter, except for 
13.21(b)(4), * * *
* * * * *
    (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. * * *
    (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), * * *
* * * * *
    (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 Secs. 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 Secs. 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. * * *
    (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), * * *
* * * * *
    (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

[[Page 6921]]

would also be implemented on other necessary properties, would 
preclude or remove any need to list the species covered by the 
Agreement.

    Authority: The authority for this notice is the Endangered 
Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.

    Dated: February 1, 2000.
Donald J. Barry,
Assistant Secretary, Fish, Wildlife, and Parks, Department of the 
Interior.
[FR Doc. 00-2870 Filed 2-10-00; 8:45 am]
BILLING CODE 4310-55-P