[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Proposed Rules]
[Pages 53320-53327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22776]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 13 and 17

RIN 1018-AI85


Safe Harbor Agreements and Candidate Conservation Agreements With 
Assurances; Revisions to the Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to revise our 
regulations pertaining to enhancement of survival permits issued under 
the Endangered Species Act. The purpose of the proposed revisions is to 
revise the current implementing regulations for permits associated with 
Safe Harbor Agreements and Candidate Conservation Agreements with 
Assurances. These revisions will make Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances easier to understand 
and implement.

DATES: Comments from all interested parties must be received by 
November 10, 2003.

ADDRESSES: Comments or materials concerning the proposed rule should be 
sent to Division of Conservation and Classification, U.S. Fish and 
Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, 
Virginia 22203 (Telephone 703/358-2171, Facsimile 703/358-1735). 
Comments and materials received on the proposed rule will be available 
for inspection, by appointment, during normal business hours, at the 
above address.

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, Fish and Wildlife Service (Telephone 
703/358-2171, Facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act (Act) (16 U.S.C. 1531 et seq.) was 
established to provide a means to conserve the ecosystems upon which 
endangered and threatened species depend, to provide a program for the 
conservation of these endangered and threatened species, and to take 
the appropriate steps that are necessary to bring any endangered or 
threatened species to the point where measures provided for under the 
Act are no longer necessary. Section 10(a)(1)(A) of the Act authorizes 
us to issue permits for otherwise prohibited activities in order to 
enhance the propagation or survival of the affected species. Section 
10(d) requires that such permits be applied for in good faith, and if 
granted, will not operate to the disadvantage of endangered species, 
and will be consistent with the purposes of the Act.
    In June of 1999, we issued two policies and revised our regulations 
to add two categories of permits to enhance the propagation or survival 
of listed, proposed, candidate, and other at-risk species. One 
category, called ``permits for the enhancement of survival through Safe 
Harbor Agreements,'' is detailed at Sec. Sec.  17.22(c) and 17.32(c), 
and in the Safe Harbor Policy (64 FR 32717). The other category, called 
``permits for the enhancement of survival through Candidate 
Conservation Agreements with Assurances,'' is detailed at Sec. Sec.  
17.22(d) and 17.32(d), and in the Candidate Conservation Agreements 
with Assurances Policy (64 FR 32726).
    The purpose of the Safe Harbor Program is to promote voluntary 
management for listed species on non-Federal property while giving 
assurances to participating landowners that no additional future 
regulatory restrictions will be imposed. In return for the 
participant's efforts, the Service will authorize incidental take 
through an associated enhancement of survival permit issued under 
section (10)(a)(1)(A) of the Act. In issuing such a permit, we expect a 
net conservation benefit will be accrued for the covered species 
through implementation of the Safe Harbor Agreement. The permit would 
allow participants to take individual listed animals to return

[[Page 53321]]

population levels and habitat conditions to those agreed upon as 
baseline.
    Candidate Conservation Agreements with Assurances are voluntary 
agreements between us and non-Federal landowners to benefit proposed 
species, candidate species, and species likely to become candidates in 
the near future. Candidate Conservation Agreements with Assurances 
provide cooperators, who agree to manage their lands or waters in a 
manner that removes threats to at-risk species, with assurances that 
their conservation efforts will not result in future regulatory 
obligations beyond those they agreed to at the time they entered into 
the Agreement. In return for the participant's proactive management, we 
provide an enhancement of survival permit under section 10(a)(1)(A) of 
the Act, which, if the species were to become listed, would authorize 
take of individuals or the modification of habitat conditions to the 
levels specified in the Agreement. Our goal is that the benefits of the 
management activities included in the Candidate Conservation Agreement 
with Assurances, when combined with those benefits that would be 
achieved if the activities were also implemented on other necessary 
properties, would preclude or remove the need to list the covered 
species.
    The objective of the proposed revisions to the Safe Harbor 
Agreement and Candidate Conservation Agreements with Assurances 
regulations is to rectify inconsistencies between the policies and 
their respective implementing regulations. In addition, these revisions 
will correct drafting errors in the regulations overlooked when the 
Safe Harbor and Candidate Conservation Agreements with Assurances 
regulations were published in 1999. Lastly, experience gained since 
1999, when the policies and regulations were finalized, has shown the 
need to clarify ambiguities in the regulations to eliminate confusion.

Revisions to the Regulations

    The implementing regulations at Sec.  13.25(b), which pertain to 
the transfer of permits to successors in interest, are inconsistent 
with the terms of the Safe Harbor and Candidate Conservation Agreements 
with Assurances policies. Part 11 of the Safe Harbor Policy and Part 10 
of the Candidate Conservation Agreements with Assurances Policy require 
the original landowner only to notify the Service of his or her intent 
to transfer the property. That notification allows the Service to 
contact the new owner, who may, under the policies, either ``agree to 
continue the original Agreement, or * * * enter into a new Agreement.'' 
The current regulations, however, create uncertainty as to the ability 
of successors in interest to assume the rights and responsibilities of 
the original Agreement. The regulations require the original landowner 
and the proposed transferee to make a ``joint submission'' prior to the 
transfer. This joint submission must convince us that the proposed 
transferee meets a number of requirements that the original permit 
holder did not have to meet to get the original permit. Specifically, 
the regulations require that the proposed transferee provide ``adequate 
written assurances'' that it will ``provide sufficient funding for the 
conservation plan'' and implement any ``outstanding minimization and 
mitigation requirements.'' These requirements apply to and are 
appropriate for section 10(a)(1)(B) incidental take permits, but are 
not requirements for section 10(a)(1)(A) enhancement of survival 
permits. Accordingly, we propose to revise the regulations to make the 
permit transfer provisions consistent with the Safe Harbor and 
Candidate Conservation Agreements with Assurances policies by allowing 
a permit to be transferred as long as the new owner agrees to become a 
party to the original agreement and permit.
    The Safe Harbor and Candidate Conservation Agreements with 
Assurances policies and implementing regulations at Sec. Sec.  
17.22(c)(1) and 17.32(c)(1), and Sec. Sec.  17.22(d)(1) and 17.32(d)(1) 
indicate that Safe Harbor and Candidate Conservation Agreements with 
Assurances applicants should be property owners. But they refer to 
property owners in several different ways (e.g., ``private property 
owners,'' ``non-Federal property owners,'' ``landowners,'' and 
``participating landowners'') without clarifying the nature of property 
ownership that will qualify a person or entity to enter into a Safe 
Harbor Agreement or Candidate Conservation Agreement with Assurances. 
Property ownership can take many different forms. These forms range 
from fee simple ownership (i.e., complete and permanent ownership of 
the property), to temporary property interests, such as leases and life 
estates, or partial interests in property, such as right-of-way 
easements and rights to harvest timber or develop property. Depending 
on the nature of the Safe Harbor Agreement or Candidate Conservation 
Agreement with Assurances, and subject to applicable State law, we 
believe that any holder of a property interest should be eligible to 
meet the requirement in the policies and implementing regulations that 
the applicant must have ``shown capability for and commitment to 
implementing all of the terms'' of the Safe Harbor Agreement or 
Candidate Conservation Agreement with Assurances at Sec. Sec.  
17.22(c)(2)(vi) and (d)(2)(vi) and 17.32(c)(2)(vi) and (d)(2)(vi). For 
instance, the owner of a right-of-way easement may be able to maintain 
a right-of-way as habitat for listed species. The holder of a lease may 
be able to ensure that during the period of the lease a property is 
managed to benefit listed species. The important consideration is not 
the type of non-Federal property ownership, but whether it gives the 
owner the power and the authority to carry out the management 
activities and other provisions of the Safe Harbor Agreement or 
Candidate Conservation Agreement with Assurances. Therefore, we will 
consider any person or organization to be a potentially eligible 
applicant and permittee if their ownership interest gives them the 
authority to enter into and implement the Safe Harbor Agreement or 
Candidate Conservation Agreement with Assurances on the covered 
property, as long as the nature of that ownership is clearly documented 
in permit application materials and/or administrative record materials. 
Accordingly, we propose to clarify that ``property owners'' includes 
anyone with a fee-simple, leasehold, or other property interest 
sufficient to carry out the proposed management activities, and that 
such property owners may submit an application for an enhancement of 
survival permit.
    The following proposed revision applies to Safe Harbor Agreement 
regulations only. Currently, both the Safe Harbor Policy and the Safe 
Harbor implementing regulations at Sec. Sec.  17.22(c)(1)(ii) and 
17.32(c)(1)(ii) require a permit applicant to include in his or her 
application a description of the activities for which the applicant 
requests incidental take authority. This requirement was unclear on two 
points. First, the regulation did not acknowledge that there are two 
broad categories of incidental take that may occur under a Safe Harbor 
Agreement. One category includes the incidental take that results from 
implementation of management activities on the covered property, such 
as from periodic prescribed burning to sustain high-quality habitat for 
the species. The other category includes incidental take that would 
result if the property were returned to baseline conditions, such as 
from removal of the vegetation planted to enhance or restore habitat. 
We are proposing new language that recognizes

[[Page 53322]]

both incidental take associated with management activities and 
incidental take associated with returning the property to baseline 
conditions. The second point that requires clarity is the requirement 
that the applicant describe future land use and water management 
activities that would result in incidental take. This requirement has 
been mistakenly interpreted by some as an intent by us to limit future 
private property use. This is not the intent of the regulations, so we 
propose to revise this provision to require the applicant to describe 
how incidental take may occur (i.e., through management activities and/
or return to baseline), but to eliminate any need to describe future 
land use or water management activities that will take place after the 
term of the agreement and permit.
    The following proposed revision applies to Safe Harbor Agreement 
regulations only. The issuance criteria in the regulations at 
Sec. Sec.  17.22(c)(2)(ii) and 17.32(c)(2)(ii) provide that the 
Director may issue a permit if he or she finds that the Agreement 
``will'' provide a net conservation benefit to the covered species. 
This may be read to suggest that the Director must determine with 
complete certainty that a net conservation benefit will occur before a 
permit can be issued. This unrealistic standard is not the intent of 
either the Safe Harbor Policy or the existing rule. As indicated in the 
background statement to the Final Safe Harbor Policy, the net 
conservation benefits ``should be reasonably expected to occur during 
the Agreement.'' 64 FR 32731 (``Revisions to the Draft Policy''). 
Although the Policy states in Part 4 that the Director must find that 
there will be a net conservation benefit, it indicates that this 
finding is to describe the ``expected net conservation benefits.'' 
Similarly, the net conservation benefits requirements in Part 5(3) of 
the Policy require Safe Harbor Agreements to identify the actions to be 
``undertaken to accomplish the expected net conservation benefits'' and 
the time frames within which ``the anticipated net conservation 
benefits'' will be achieved. The Policy thus requires that the Director 
must reasonably expect that a Safe Harbor Agreement will meet the net 
conservation benefit standard before a permit can be issued. We 
accordingly propose to clarify the regulations by revising the issuance 
criteria to state that the Director may issue the permit if the 
Director finds that the Safe Harbor Agreement ``is reasonably expected 
to provide a net conservation benefit'' to the covered species.
    The current Safe Harbor and Candidate Conservation Agreements with 
Assurances regulations, at Sec. Sec.  17.22(c)(3)(ii) and 
17.32(c)(3)(ii) and Sec. Sec.  17.22(d)(3)(ii) and 17.32(d)(3)(ii) 
respectively, require a property owner to notify us 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. 
Notification provides us with an opportunity to relocate affected 
individuals of the species if possible and appropriate, or to implement 
other conservation options that may be available to us, and with the 
consent of the landowner. The notification requirement is often a 
desirable feature of a Safe Harbor Agreement or a Candidate 
Conservation Agreement with Assurances. For example, in the Safe Harbor 
Agreement with Environmental Defense, the Cooperator agrees to notify 
Environmental Defense and the Fish and Wildlife Service local office 
not less than 60 days prior to any activity that will take the property 
back to baseline conditions to allow us to rescue any black-capped 
vireos or golden-cheeked warblers, if possible and appropriate. 
However, prior notice before engaging in activities that result in take 
is not always appropriate based on the biology of the species or the 
covered activities. For example, some species may not be easily 
captured or may not be able to survive if transplanted to another site, 
such as larvae or eggs of certain smaller species of butterfly. Thus, 
we would not be able to rescue the individuals prior to the authorized 
incidental taking and advanced notice of incidental taking in order to 
rescue the butterflies may not be appropriate. Emergency situations 
would not be appropriate for advanced notification as well. For 
example, if habitat within a Safe Harbor Agreement for the red-cockaded 
woodpecker were infested by pine beetle, the trees must be harvested 
quickly to halt the infestation. In this situation, a 60-day advanced 
notice would be inappropriate and shortened notice may not be 
sufficient time to properly capture the red-cockaded woodpeckers. 
Advanced notification is appropriate when such notification allows for 
sufficient time to ameliorate the immediate effect of the property 
returning to baseline conditions. The policy states ``If appropriate, 
incorporate a notification requirement to provide the Services or 
appropriate State agencies with reasonable opportunity to rescue 
individuals of a covered species * * *.'' Both the Service and the 
property owner will determine if the Safe Harbor Agreement will include 
an advanced notification requirement. Therefore, instead of requiring 
notification from the permittee, we propose to revise the regulations 
to state that, ``when appropriate,'' notification of at least 30 days 
is to be given in advance of when the permittee expects to incidentally 
take any listed species covered under the permit.
    The existing Safe Harbor regulations state that ``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 * * *'' (Sec. Sec.  17.22(c)(5)(ii) and 17.32(c)(5)(ii)). We 
propose to remove the references to additional mitigation measures and 
to ``conserved habitat areas.'' Unlike the requirements for Habitat 
Conservation Plan permits issued under 10(a)(1)(B), there are no 
mitigation requirements in the Safe Harbor Policy. Therefore, it is not 
necessary or appropriate to authorize the imposition of ``additional'' 
mitigation measures. Also, it is confusing to reference ``conserved 
habitat areas,'' because there are no ``conserved habitat areas'' as 
defined by our regulations (50 CFR 17.3) in Safe Harbor Agreements. In 
addition, because these are voluntary agreements, establishing 
authority to require a landowner to carry out other measures that were 
not previously agreed to by the landowner is inappropriate.
    Similarly, the Candidate Conservation Agreements with Assurances 
Policy does not have mitigation requirements, and does not refer to 
``conserved habitat areas,'' as defined by our regulations (50 CFR 
17.3). Therefore, we propose to delete the word ``mitigation'' and the 
phrase ``conserved habitat areas'' from the implementing regulations at 
Sec. Sec.  17.22(d)(5)(i), (ii), and (iii)(B) and 17.32(d)(5)(i), (ii), 
and (iii)(B).
    Existing regulations at Sec. Sec.  17.22(c)(7) and 17.32(c)(7) and 
Sec. Sec.  17.22(d)(7) and 17.32(d)(7) authorize us to revoke a permit 
issued in association with a Safe Harbor Agreement or Candidate 
Conservation Agreement with Assurances if we determine that 
``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.'' Because we are concerned that 
this authority may create a disincentive to landowners considering 
development of a Safe Harbor Agreement or Candidate Conservation 
Agreement with Assurances, we propose to replace this provision with a 
statement that the Director may revoke a permit if continuation of the 
permitted activity

[[Page 53323]]

would either appreciably reduce the likelihood of survival and recovery 
in the wild of any listed species or directly or indirectly alter 
designated critical habitat such that it appreciably diminishes the 
value of that critical habitat for both the survival and recovery of a 
listed species. In addition, we propose to include a provision that 
commits the Director to use all other available authorities to avoid 
revoking the permit under these circumstances. We propose to revise the 
existing revocation criterion by stating that, with the consent of the 
permittee, we will pursue all feasible and appropriate options prior to 
permit revocation, including extending or modifying the existing 
permit, capturing and relocating the species, providing compensation to 
the landowner to forgo the activity, purchasing an easement or fee 
simple interest in the property, or arranging a third-party acquisition 
of an interest in the property.

Required Determinations

    We have evaluated the effects of the revisions described in this 
proposed rule. We have concluded that the resulting economic benefits 
of the proposed rule would accrue to the persons who secure agreements 
with us. While the number of persons who pursue agreements may increase 
as a result of these proposed changes, we do not anticipate that the 
level of participation in the permitting programs will increase because 
the resources available to process permit applications will not change 
as a result of this rule. Therefore, we conclude that this proposed 
rule will not result in additional effects. Based on this finding, we 
have made the following determinations for this proposed rule.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant proposed rule.
    (a) This proposed rule will not have an annual economic effect of 
$100 million or more or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. 
Because most of the proposed rule deals with revisions of current 
regulations, we do not anticipate that this rule will cause any 
significant economic changes, either positive or negative. We have 
concluded that this rule will have some beneficial economic effect 
because we are rectifying inconsistencies and drafting errors, thereby 
making Safe Harbor Agreements and Candidate Conservation Agreements 
with Assurances easier to undertake and implement. The effect would be 
minimal because of the small number of permits anticipated to be 
issued.
    (b) This proposed rule is not expected to create additional 
inconsistencies with other agencies' actions. Although the Safe Harbor 
and Candidate Conservation Agreements with Assurances policies are 
joint policies with the National Oceanic and Atmospheric Administration 
Fisheries, the implementing regulations subject to this proposed rule 
apply to the Fish and Wildlife Service exclusively. NOAA Fisheries has 
not adopted similar regulations to the Fish and Wildlife Service to 
provide a consistent basis for the joint policy implementation.
    (c) This proposed rule is not expected to significantly affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients.
    (d) OMB has determined that this rule raises novel legal or policy 
issues. If this regulation can help facilitate wider adoption of the 
Safe Harbor and Candidate Conservation Agreements with Assurances 
programs, it could help increase private conservation efforts on behalf 
of listed and unlisted species, which is a key component of successful 
implementation of the Act.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions).
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our determination.
    We have examined this proposed rule's potential effects on small 
entities as required by the Regulatory Flexibility Act. The proposed 
rule does not establish any new application or implementation burdens. 
Submitting applications for enhancement of survival permits under the 
Act is voluntary, and participation in activities that enhance the 
survival or propagation of species is also voluntary on the part of the 
applicant. We expect that any impacts of this rule would be beneficial 
because they clarify the regulatory requirements for obtaining 
enhancement of survival permits under the Act. We, therefore, do not 
expect these changes to affect a substantial number of small entities. 
To date, we have issued 16 Safe Harbor Agreement permits and 5 
Candidate Conservation Agreement with Assurances permits. We expect to 
issue the same number of enhancement of survival permits per year. That 
averages approximately four Safe Harbor Agreement permits and one 
Candidate Conservation Agreement with Assurances permit per year. Given 
the low number of enhancement of survival permits expected to be 
issued, we certify that this rule will not have a significant economic 
impact on a substantial number of small entities.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule is not a significant regulatory action under 
Executive Order 12866, and is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. We expect that this proposed rule will not result in any 
significant additional expenditures by entities that develop 
Agreements.
    (b) This proposed rule will not produce a Federal mandate on State, 
local, or tribal governments or the private sector of $100 million or 
greater in any year; as a result, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This proposed rule 
imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this proposed rule does 
not have significant takings implications. This proposed rule has no 
provision that would take private property rights. Participation in 
this permitting program is strictly voluntary.

[[Page 53324]]

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with appropriate resource agencies throughout the United States.

Civil Justice Reform

    In accordance with Executive Order 12988, this proposed rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The purpose of this rule is to 
address inconsistencies in and clarify the current regulations.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, this proposed 
rule does not directly affect Tribal resources. The effect of this 
proposed rule on Native American Tribes would be determined on a case-
by-case basis with individual evaluations of permit applications. Under 
Secretarial Order 3206, we will, at a minimum, share with the entity 
that developed the permit application any information provided by the 
Tribes, through the public comment period or formal submissions, and 
advocate the incorporation of conservation measures that will restore 
or enhance Tribal trust resources. After consultation with applicable 
Tribes and the entity that developed the permit application, and after 
careful consideration of the Tribes' concerns, we must clearly state 
the rationale for the recommended final decision and explain how the 
decision relates to our trust responsibility. Accordingly:
    (a) We have not yet consulted with affected Tribes. This 
requirement will be addressed during individual evaluations of permit 
applications.
    (b) We have not yet treated Tribes on a government-to-government 
basis. This requirement will be addressed during individual evaluations 
of permit applications.
    (c) We will consider Tribal views in individual evaluations of 
permit applications.
    (d) We have not yet consulted with the appropriate bureaus and 
offices of the Department about the identified effects of this proposed 
rule on Tribes. This requirement will be addressed during individual 
evaluations of permit applications.

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information other than those already approved under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., and assigned OMB clearance 
number 1018-0094. This rule revises current regulations for programs 
permitted under 50 CFR 17.22(c) and (d), and 17.32(c) and (d). Our 
current application approval number, 1018-0094, which expires July 31, 
2004, already accommodates this clarification and the changes proposed. 
Therefore, no change in the approved application forms is needed. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid control number.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act (NEPA) and the Department of the 
Interior Manual (318 DM 2.2(g) and 6.3(D)). This proposed rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. We have determined that this proposed rule is 
categorically excluded under the Department of the Interior's NEPA 
procedures in 516 DM 2, Appendix 1, and 516 DM 6, Appendix 1.

Section 7 Consultation

    Although these revisions to the regulations will make enhancement 
of survival permits associated with Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances easier to obtain, 
understand, and implement, it will not change the issuance standards or 
the manner in which the Service makes its issuance determinations. In 
addition, the Service will continue to consult on the issuance of each 
individual permit. During consultation, the potential risks to listed 
and proposed species and designated and proposed critical habitat areas 
will be evaluated. Therefore, we have determined that the present 
action of revising existing regulations for section 10(a)(1)(A) permits 
will not affect listed species or designated critical habitat.

Public Comments Solicited

    We request public comments on this proposed rule to revise the 
regulations applicable to enhancement of survival permits issued under 
the Act. We will consider all comments and any additional information 
received by the close of the comment period (listed above in DATES) in 
making a final determination on this proposal. Comments on the proposed 
rule should be submitted to the Division of Conservation and 
Classification (see ADDRESSES).
    Executive Order 12866 requires that each agency write regulations 
that are easy to understand. We invite your comments on how we might 
make this rule easier to understand, specifically: (1) Are the 
requirements in the rule clearly stated?; (2) Does the rule contain 
technical language or jargon that interferes with its clarity?; (3) 
Does the format of the rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity?; (4) Would the 
rule be easier to understand if it were divided into more (but shorter) 
sections? (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec.  '' and a numbered heading; for example, Sec.  17.22 
Permits for scientific purposes, enhancement of propagation or 
survival, or for incidental taking); and (5) Is the description of the 
rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? What else could we do to make the 
rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of the Executive Secretariat and 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street, NW., Washington, DC 20240. You may also e-mail the comments to 
this address: [email protected]
    Our practice is to make comments, including names and addresses of 
respondents, available for public review during regular business hours. 
Individual respondents may request that we withhold their home address 
from the rulemaking record, which we will honor to the extent allowable 
by law. There also may be circumstances in which we would withhold from 
the rulemaking record a respondent's identity, as allowable by law. If 
you wish for us to withhold your name and/or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

[[Page 53325]]

List of Subjects

50 CFR Part 13

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

50 CFR Part 17

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

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

PART 13--[AMENDED]

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

    Authority: 16 U.S.C. 668(a), 704, 712, 742j-l, 1374(g), 1382, 
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 
1202; 31 U.S.C. 9701.

    2. Amend Sec.  13.25 by revising paragraph (b) introductory text, 
redesignating paragraphs (c) and (d) as paragraphs (d) and (e), and 
adding a new paragraph (c) as set forth below:


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

* * * * *
    (b) Permits issued under Sec.  17.22(b) or Sec.  17.32(b) 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:
* * * * *
    (c) In the case of the transfer of lands subject to an agreement 
and permit issued under Sec.  17.22(c) or (d) or Sec.  17.32 (c) or (d) 
of this subchapter B, the Service will transfer the permit to the new 
owner if the new owner agrees in writing to become a party to the 
original agreement and permit.
* * * * *

PART 17--[AMENDED]

    3. 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.

* * * * *
    4. Amend Sec.  17.3 by revising the following definitions to read 
as follows:


Sec.  17.3  Definitions.

* * * * *
    Changed circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan or agreement 
that can reasonably be anticipated by plan or agreement developers and 
the Service and that can be planned for (e.g., the listing of new 
species, or a fire or other natural catastrophic event in areas prone 
to such events).
* * * * *
    Unforeseen circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan or agreement 
that could not reasonably have been anticipated by plan or agreement 
developers and the Service at the time of the conservation plan's or 
agreement's negotiation and development, and that result in a 
substantial and adverse change in the status of the covered species.
* * * * *
    5. Amend Sec.  17.22 by revising the first sentence of paragraph 
(c)(1), paragraphs (c)(1)(ii), (c)(2)(ii), (c)(3)(ii), (c)(5)(ii), 
(c)(7), the first sentence of paragraph (d)(1), paragraphs (d)(3)(ii), 
(d)(5)(i)-(ii), (d)(5)(iii)(B), and (d)(7) to read as follows:


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

* * * * *
    (c)(1) Application requirements for permits for the enhancement of 
survival through Safe Harbor Agreements. A property owner (including 
anyone with a fee simple, leasehold, or other property interest 
sufficient to carry out the proposed management activities, subject to 
applicable State law) must submit an application for a permit under 
paragraph (c) of this section 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. * * *
* * * * *
    (ii) A description of how incidental take of the listed species 
pursuant to the Safe Harbor Agreement is likely to occur, both as a 
result of management activities and as a result of the return to 
baseline; and
* * * * *
    (2) * * *
    (ii) The implementation of the terms of the Safe Harbor Agreement 
is reasonably expected to 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;
* * * * *
    (3) * * *
    (ii) When appropriate, a requirement for the permittee to give the 
Service reasonable advance notice (generally at least 30 days) 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 relocate affected individuals of the species, if 
possible and appropriate; and
* * * * *
    (5) * * *
    (ii) The Director and the permittee may agree to revise or modify 
the management measures set forth in a Safe Harbor Agreement if the 
Director determines that such revisions or modifications do not change 
the Director's prior determination that the Safe Harbor Agreement is 
reasonably expected to provide a net conservation benefit to the listed 
species. However, the Director may not require additional or different 
management activities to be undertaken by a permittee without the 
consent of the permittee.
* * * * *
    (7) Criteria for revocation. The Director may not revoke a permit 
issued under paragraph (c) of this section except as provided in this 
paragraph. The Director may revoke a permit for any reason set forth in 
Sec.  13.28(a)(1) through (4) of this subchapter. The Director may 
revoke a permit if continuation of the permitted activity would either 
appreciably reduce the likelihood of survival and recovery in the wild 
of any listed species or directly or indirectly alter designated 
critical habitat such that it appreciably diminishes the value of that 
critical habitat for both the survival and recovery of a listed 
species. Before revoking a permit for either of the latter two reasons, 
the Director, with the consent of the permittee, will pursue all 
appropriate options to avoid permit revocation. These options may 
include, but are not limited to: extending or modifying the existing 
permit, capturing and relocating the species, compensating the 
landowner to forgo the activity, purchasing an easement or fee simple 
interest in the property, or arranging for a third-party acquisition of 
an interest in the property.
* * * * *
    (d)(1) Application requirements for permits for the enhancement of 
survival through Candidate Conservation

[[Page 53326]]

Agreements with Assurances. A property owner (including anyone with a 
fee simple, leasehold, or other property interest sufficient to carry 
out the proposed management activities, subject to applicable State 
law) must submit an application for a permit under paragraph (d) of 
this section 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). * * *
* * * * *
    (3) * * *
    (ii) When appropriate, a requirement for the permittee to give the 
Service reasonable advance notice (generally at least 30 days) 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 relocate affected individuals of the species, if 
possible and appropriate; and
* * * * *
    (5) * * *
    (i) Changed circumstances provided for in the Agreement. If the 
Director determines that additional conservation measures are necessary 
to respond to changed circumstances and these measures were set forth 
in the Agreement, the permittee will implement the measures specified 
in the Agreement.
    (ii) Changed circumstances not provided for in the Agreement. If 
the Director determines that additional conservation measures not 
provided for in the Agreement are necessary to respond to changed 
circumstances, the Director will not require any conservation measures 
in addition to those provided for in the Agreement without the consent 
of the permittee, provided the Agreement is being properly implemented.
    (iii) * * *
    (B) If the Director determines additional conservation measures are 
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 maintain the 
original terms of the Agreement to the maximum extent possible. 
Additional conservation 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.
* * * * *
    (7) Criteria for revocation. The Director may not revoke a permit 
issued under paragraph (d) of this section except as provided in this 
subsection. The Director may revoke a permit for any reason set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter. The Director may 
revoke a permit if continuation of the permitted activity would either 
appreciably reduce the likelihood of survival and recovery in the wild 
of any listed species or directly or indirectly alter designated 
critical habitat such that it appreciably diminishes the value of that 
critical habitat for both the survival and recovery of a listed 
species. Before revoking a permit for either of the latter two reasons, 
the Director, with the consent of the permittee, will pursue all 
appropriate options to avoid permit revocation. These options may 
include, but are not limited to: extending or modifying the existing 
permit, capturing and relocating the species, compensating the 
landowner to forgo the activity, purchasing an easement or fee simple 
interest in the property, or arranging for a third-party acquisition of 
an interest in the property.
* * * * *
    6. Amend Sec.  17.32 by revising the first sentence of paragraph 
(c)(1), paragraphs (c)(1)(ii), (c)(2)(ii), (c)(3)(ii), (c)(5)(ii), 
(c)(7), the first sentence of paragraph (d)(1), paragraphs (d)(3)(ii), 
(d)(5)(i)-(ii), (d)(5)(iii)(B), and (d)(7) to read as follows:


Sec.  17.32  Permits--general.

* * * * *
    (c)(1) Application requirements for permits for the enhancement of 
survival through Safe Harbor Agreements. A property owner (including 
anyone with a fee simple, leasehold, or other property interest 
sufficient to carry out the proposed management activities, subject to 
applicable State law) must submit an application for a permit under 
paragraph (c) of this section 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 
address see 50 CFR 10.22), if the applicant wishes to engage in any 
activity prohibited by Sec.  17.31.* * *
* * * * *
    (ii) A description of how incidental take of the covered species 
pursuant to the Safe Harbor Agreement is likely to occur, both as a 
result of management activities and as a result of the return to 
baseline;
* * * * *
    (2) * * *
    (ii) The implementation of the terms of the Safe Harbor Agreement 
is reasonably expected to 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;
* * * * *
    (3) * * *
    (ii) When appropriate, a requirement for the permittee to give the 
Service reasonable advance notice (generally at least 30 days) 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 relocate affected individuals of the species, if 
possible and appropriate; and
* * * * *
    (5) * * *
    (ii) The Director and the permittee may agree to revise or modify 
the management measures set forth in a Safe Harbor Agreement if the 
Director determines that such revisions or modifications do not change 
the Director's prior determination that the Safe Harbor Agreement is 
reasonably expected to provide a net conservation benefit to the listed 
species. However, the Director may not require additional or different 
management activities to be undertaken by a permittee without the 
consent of the permittee.
* * * * *
    (7) Criteria for revocation. The Director may not revoke a permit 
issued under paragraph (c) of this section except as provided in this 
paragraph. The Director may revoke a permit for any reason set forth in 
Sec.  13.28(a)(1) through (4) of this subchapter. The Director may 
revoke a permit if continuation of the permitted activity would either 
appreciably reduce the likelihood of survival and recovery in the wild 
of any listed species or directly or indirectly alter designated 
critical habitat such that it appreciably diminishes the value of that 
critical habitat for both the survival and recovery of a listed 
species. Before revoking a permit for either of the latter two reasons, 
the Director, with the consent of the permittee, will pursue all 
appropriate options to avoid permit revocation. These options may 
include, but are not limited to: extending or modifying the existing 
permit, capturing and relocating the species,

[[Page 53327]]

compensating the landowner to forgo the activity, purchasing an 
easement or fee simple interest in the property, or arranging for a 
third-party acquisition of an interest in the property.
* * * * *
    (d)(1) Application requirements for permits for the enhancement of 
survival through Candidate Conservation Agreements with Assurances. A 
property owner (including anyone with a fee simple, leasehold, or other 
property interest sufficient to carry out the proposed management 
activities, subject to applicable State law) must submit an application 
for a permit under paragraph (d) of this section 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). * * *
* * * * *
    (3) * * *
    (ii) When appropriate, a requirement for the permittee to give the 
Service reasonable advance notice (generally at least 30 days) 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 relocate affected individuals of the species, if 
possible and appropriate; and
* * * * *
    (5) * * *
    (i) Changed circumstances provided for in the Agreement. If the 
Director determines that additional conservation measures are necessary 
to respond to changed circumstances and these measures were set forth 
in the Agreement, the permittee will implement the measures specified 
in the Agreement.
    (ii) Changed circumstances not provided for in the Agreement. If 
the Director determines that additional conservation measures not 
provided for in the Agreement are necessary to respond to changed 
circumstances, the Director will not require any conservation measures 
in addition to those provided for in the Agreement without the consent 
of the permittee, provided the Agreement is being properly implemented.
    (iii) * * *
    (B) If the Director determines additional conservation measures are 
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 maintain the 
original terms of the Agreement to the maximum extent possible. 
Additional conservation 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.
* * * * *
    (7) Criteria for revocation. The Director may not revoke a permit 
issued under paragraph (d) of this section except as provided in this 
subsection. The Director may revoke a permit for any reason set forth 
in Sec.  13.28(a)(1) through (4) of this subchapter. The Director may 
revoke a permit if continuation of the permitted activity would either 
appreciably reduce the likelihood of survival and recovery in the wild 
of any listed species or directly or indirectly alter designated 
critical habitat such that it appreciably diminishes the value of that 
critical habitat for both the survival and recovery of a listed 
species. Before revoking a permit for either of the latter two reasons, 
the Director, with the consent of the permittee, will pursue all 
appropriate options to avoid permit revocation. These options may 
include, but are not limited to: extending or modifying the existing 
permit, capturing and relocating the species, compensating the 
landowner to forgo the activity, purchasing an easement or fee simple 
interest in the property, or arranging for a third-party acquisition of 
an interest in the property.
* * * * *

    Dated: July 21, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-22776 Filed 9-9-03; 8:45 am]
BILLING CODE 4310-55-P