[Federal Register Volume 66, Number 246 (Friday, December 21, 2001)]
[Proposed Rules]
[Pages 65873-65875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31544]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 011130288-1288-01; I.D. 092101C]
RIN 0648-AP64


Endangered and Threatened Species; Transfer of Permits

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for public comments.

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SUMMARY: NMFS proposes a rule that would allow the transfer of certain 
permits issued by NMFS under the Endangered Species Act (ESA) of 1973, 
as amended. This proposed rule would allow the transfer of permits 
associated with Habitat Conservation Plans, Safe Harbor Agreements with 
Assurances and Candidate Conservation Agreements with Assurances. 
Currently, if a permit holder wants to sell property to a new owner, 
the new owner would need to apply for a separate permit. If regulations 
are put in place to allow transfers, time and money will be saved for 
NMFS and the new landowner with no adverse impact on the environment.

DATES: Written comments on the proposed rule must be received at the 
appropriate address or fax number (see ADDRESSES) no later than 5 p.m. 
Eastern Standard Time on February 4, 2002.

ADDRESSES: Comments on this proposed rule should be addressed to the 
Chief, Endangered Species Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may 
also be sent via fax to (301) 713-0376. Comments will not be accepted 
if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Margaret Lorenz or Lamont Jackson at 
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    NMFS is responsible for implementing the ESA, 16 U.S.C. 1531 et 
seq., with respect to most threatened and endangered marine species.
    NMFS' regulation at 50 CFR 222.305 prohibits the transfer of all 
permits issued under section 10(a) of the ESA. While the restrictions 
imposed on permit succession and transferability are well justified for 
most situations (e.g., scientific research permits), they are 
unnecessary and inappropriate for enhancement and incidental take 
permits associated with Habitat Conservation Plans, Safe Harbor 
Agreements with Assurances and Candidate Conservation Agreements with 
Assurances. These permits involve substantial long-term conservation 
commitments, and NMFS negotiates these permits recognizing that there 
may be succession or transfer in ownership during the term of the 
permit. The U.S. Fish and Wildlife Service (FWS) which also implements 
the ESA, issued final regulations on June 17, 1999 (64 FR 32706), 
allowing the transfer of these enhancement and incidental take permits, 
provided certain conditions are met. On January 22, 2001 (66 FR 6483),

[[Page 65874]]

FWS reconfirmed its decision to allow the transfer of these specific 
permits.
    NMFS believes that a blanket prohibition on transferability of 
incidental take permits under ESA section 10(a)(1)(B) and enhancement 
permits issued for Safe Harbor Agreements with Assurances and Candidate 
Conservation Agreements with Assurances under section 10(a)(1)(A) is 
too constraining, given the context and purpose of these plans and 
agreements. This proposed rule (revising 50 CFR 222.305) would remove 
the prohibition on transferability of incidental take and enhancement 
permits with respect to these named agreements. However, this proposed 
rule would require NMFS to determine that the transferee has given 
adequate written assurance to NMFS that it can and will fulfill the 
obligations of the permit.

Description of Permits

    Safe Harbor Agreements with Assurances: Under the Safe Harbor 
policy, non-Federal property owners with an approved agreement will 
receive assurances that additional land, water, and/or natural resource 
use restrictions will not be imposed in exchange for their voluntary 
conservation actions to benefit listed species covered in the 
agreement. If the Agreement provides a net conservation benefit to the 
covered species and the property owner meets all the terms of the 
Agreement, NMFS will authorize the taking of the covered species to 
enable the property owner to ultimately return the enrolled property 
back to agreed upon conditions. These assurances will be provided in 
the property owner's Safe Harbor Agreement and in an associated 
Enhancement of Survival permit issued under section 10(a)(1)(A) of the 
ESA.
    Candidate Conservation Agreement with Assurances: Under this 
policy, non-Federal property owners who commit, through a Candidate 
Conservation Agreement with Assurances, to implement conservation 
measures for a candidate or proposed species, or a species likely to 
become a candidate or proposed in the near future, will receive 
assurances that additional conservation measures will not be required 
and additional land, water, or resource use restrictions will not be 
imposed should the species become listed in the future. These 
assurances will be provided in the property owner's Candidate 
Conservation Agreement with Assurances and in an associated Enhancement 
of Survival permit issued under section 10(a)(1)(A) of the ESA.
    Habitat Conservation Plans: The development of a conservation plan 
(sometimes referred to as a Habitat Conservation Plan (HCP)) is a 
required element of an application for an incidental take permit, and 
involves long-term conservation commitments that may ``run with the 
land,'' or obligate a landowner for the life of the permit. In 
negotiating such commitments, it is recognized that a succession of 
owners may purchase or sell the affected property during the term of 
the permit. Species covered by the conversation measures should not be 
affected by the change in ownership if the successive owners agree to 
be bound by the terms of the permit. Property owners are willing to 
undertake these commitments if they know they can transfer their 
incidental take authorization (and HCP obligations) to the purchaser. 
Absent the ability to transfer the permit and thereby obtain long-term 
assurances of certainty, some landowners may be unwilling to enter into 
long-term commitments. For many HCPs, both FWS and NMFS issue an 
incidental take permit. It is confusing and inconsistent if FWS' 
permits are transferable and NMFS' permits are not.
    This proposed rule would alleviate the constraints on permit 
transferability to allow those who have permits associated with HCPs, 
Safe Harbor Agreements with Assurances and Candidate Conservation 
Agreements with Assurances the flexibility to transfer permits to 
qualified purchasers, and eliminates inconsistency between the 
regulations of the two agencies administering the ESA.
    The proposed rule would allow transfer of these permits only so 
long as the successor or transferee owners meet the general 
qualifications for holding the permits and agree to the terms of the 
HCP, Safe Harbor Agreement with Assurances or Candidate Conservation 
Agreement with Assurances.

Description/Overview of the Revisions to Permit Regulations

    Section 222.305(a) would be revised to allow transferability of 
permits issued under 50 CFR parts 222, 223, and 224 where NMFS 
determines the transferee has given adequate written assurance (signing 
of a contract) that they can and will fulfill the obligations of the 
permit.
    This proposed rule does not apply to scientific research permits 
issued under ESA section 10(a)(1)(A). It applies only to incidental 
take permits, and enhancement permits issued under section 10(a)(1)(A) 
in association with a Safe Harbor Agreement with Assurances or 
Candidate Conservation Agreement with Assurances. Further, any permits 
issued by NMFS for scientific research and enhancement for ESA-listed 
species, including marine mammals (50 CFR 222.308 (b),(c), 216.41) are 
not transferable (50 CFR 216.35), and this proposed rule will not 
affect this restriction or the regulations at 50 CFR 216.41 and 
222.308(b)(c). These permits are not transferable because they are part 
of scientific research permits issued under section 10(a)(1)(A), and 
require that the holder/principal investigator be qualified to conduct 
the research and enhancement activities described in the original 
application and permit.

Public Comments Solicited

    NMFS requests comments on any aspect of this proposed rule. NMFS 
particularly would like to hear from individuals who have experience 
with FWS' rule for transferring incidental take permits.

Classification

    NMFS has determined that this proposed rule is consistent with the 
ESA and with other applicable laws.

National Environmental Policy Act

    Since the changes in this proposed rule do not individually or 
cumulatively have a significant impact on the quality of the human 
environment, this proposed rule has been determined to be categorically 
excluded under the National Environmental Policy Act.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order (E.O.) 12866.

Regulatory Flexibility Act

    This proposed rule will establish the process for transfers of 
incidental take permits when a new party acquires land subject to an 
existing, ongoing HCP, Safe Harbor Agreement with Assurances or 
Candidate Conservation Agreement with Assurances. It will reduce the 
costs to both the transferees and the agency. Currently, the transfer 
of an incidental take permit or an enhancement permit to a new 
landowner can be accomplished only by the new landowner submitting an 
application for its own permit (using the pre-existing conservation 
plan or agreement developed by the prior landowner). That permit would 
then be processed by NMFS and new documents prepared to issue a new 
permit would be accompanied by a simultaneous surrender of the permit 
held by the prior landowner. Under this system, the time required for 
processing a new permit will always result in a lapse in coverage 
between the date of the acquisition of

[[Page 65875]]

the land by the new owner and the issuance of the new permit. Under 
this proposed rule, the transfer process would be streamlined and 
paperwork reduced. As long as the new landowner is appropriately 
qualified, the permit can be transferred by a simple assignment and 
assumption agreement between NMFS and the new landowner. NMFS would 
save time and document preparation and processing expenses, as would 
the landowner involved. This proposed rule would decrease the costs of 
permit transfers on both large and small businesses alike. Thus, the 
economic effects of the proposed rule will be positive.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities, since the rule would reduce 
cost associated with land transfers.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection-of-information subject to the 
requirements of the Paperwork Reduction Act (PRA), unless that 
collection-of-information displays a currently valid Office of 
Management and Budget (OMB) control number.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the PRA. This requirement 
has been submitted to OMB for approval. Public reporting burden for a 
permit transfer is estimated to average 40 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS 
(see ADDRESSES above), and to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC. 
20503 (Attention: NOAA Desk Officer).

Executive Order 13132--Federalism

    Executive Order 13132 requires that agencies take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law or impose substantial direct compliance cost on state 
and local governments (unless required by statute). Neither of these 
circumstances is applicable to this proposed rule.

List of Subjects in 50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: December 14, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 222 is 
proposed to be amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

    1. The authority citation for part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et. seq.; 16 U.S.C. 742a et. seq.; 31 
U.S.C. 9701. Section 222.403 also issued under 16 U.S.C. 1361 et. 
seq.

    2. In Sec. 222.305, paragraph (a)(1) is revised and paragraph 
(a)(3) is added to read as follows:


Sec. 222.305  Rights of succession and transfer of permits.

    (a)(1) Except as otherwise provided in this section, permits issued 
pursuant to parts 222, 223, and 224 of this chapter are not 
transferable or assignable. In the event that a permit authorizes 
certain business activities in connection with a business or commercial 
enterprise, which is then subject to any subsequent lease, sale or 
transfer, the successor to that enterprise must obtain a permit prior 
to continuing the permitted activity, with the exceptions provided in 
paragraphs (a)(2) and (a)(3) of this section.
* * * * *
    (3) Permits issued under Sec. 222.307 or for an enhancement permit 
issued under Sec. 222.308, as part of a Safe Harbor Agreement with 
Assurances or Candidate Conservation Agreement with Assurances, 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 NMFS determines that:
    (i) The proposed transferee meets all of the qualifications under 
parts 222, 223, or 224 (as applicable) for holding a permit;
    (ii) The proposed transferee has provided adequate written 
assurances that it will provide sufficient funding for the conservation 
plan or other agreement or plan associated with the permit and will 
implement the relevant terms and conditions of the permit, including 
any outstanding minimization and mitigation requirements; and
    (iii) The proposed transferee has provided such other information 
as NMFS determines is relevant to process the transfer.
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[FR Doc. 01-31544 Filed 12-20-01; 8:45 am]
BILLING CODE 3510-22-S