[Federal Register Volume 69, Number 85 (Monday, May 3, 2004)]
[Rules and Regulations]
[Pages 24084-24094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9982]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 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: Final rule.

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

DATES: This final rule is effective June 2, 2004.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours, at the 
Division of Conservation and Classification, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, Fish and Wildlife Service, at the 
above address, telephone 703/358-2171, or 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.
    On June 17, 1999, we issued two policies and published revisions of 
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) (for endangered and threatened species, 
respectively), 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) (for endangered and threatened 
species, respectively), and in the Candidate Conservation Agreements 
with Assurances Policy (64 FR 32726).
    The Safe Harbor policy and associated regulations are intended to 
facilitate the conservation of listed species through a collaborative 
approach with non-Federal property owners. The policy and regulations 
are designed to create incentives for non-Federal property owners to 
implement voluntary conservation measures for certain listed species by 
providing certainty with regard to possible future restrictions should 
the covered species later become more numerous as a result of the 
actions taken by the non-Federal cooperator. Non-Federal property 
owners, who through a Safe Harbor Agreement commit to implement 
voluntary conservation measures for a listed species, will receive 
assurances that no additional future regulatory restrictions will be 
imposed. When the property owner meets the issuance criteria of the 
regulations we will issue an enhancement of survival permit under 
section (10)(a)(1)(A) of the Act, authorizing incidental taking of the 
covered species at a level that enables the property owner to return 
the property back to population levels or habitat conditions agreed 
upon as baseline. Before issuing such a permit, we must make a written 
finding that all covered species in the SHA will receive a net 
conservation benefit from management actions taken pursuant to the 
agreement.
    Candidate Conservation Agreements with Assurances are voluntary 
agreements between us and non-Federal property owners to benefit 
proposed species, candidate species, and species likely to become 
candidates in the near future. Under a CCAA, non-Federal property 
owners commit to implement mutually agreed upon conservation measures 
which, when combined with benefits that would be achieved if it is 
assumed that those conservation measures were to be implemented on 
other necessary properties, would preclude the need to list the covered 
species. In return for the cooperator'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 CCAA.
    The objective of these revisions to the regulations pertaining to 
SHAs and CCAAs is to: (1) Rectify inconsistencies between the policies 
and their respective implementing regulations; (2) correct drafting 
errors in the regulations overlooked when the regulations were 
published in 1999; and (3) clarify ambiguities in the regulations to 
eliminate confusion. Our proposed rule, which was published in the 
Federal Register (68 FR 53320) on September 10, 2003, included a 
request for public comments. The closing date for the comment period 
was November 10, 2003.

[[Page 24085]]

Summary of Comments and Recommendations

    In response to our request for comments on the proposed revisions 
to the regulations, we received letters from 22 entities. Thirteen were 
generally in support of our proposed regulation changes, while nine 
expressed concerns over certain parts of the changes. We reviewed all 
comments received and have incorporated accepted suggestions or 
clarifications into the final regulations. Because most of these 
letters included similar comments, we grouped the comments according to 
issues. Following is a summary of the relevant comments and our 
responses.

Transfer of Permits

    Issue 1: Several commenters agreed with our revision to 50 
CFR13.25(c) that authorizes permits to be transferred provided that the 
new owner agrees to become a party to the original agreement and 
permits. Some commenters also noted that this change provides more 
incentive to landowners to enter into SHAs and CCAAs as entering into 
an SHA or CCAA should not be a detriment to selling one's property. One 
commenter stated that we should maintain discretion to allow permit 
transfer, but not be obligated to do so. This commenter specifically 
noted that it may be preferable for us to negotiate a new Safe Harbor 
permit with a potentially higher baseline condition with the new owner 
than it would be to allow the new owner to return the property to 
baseline conditions established under the prior owner.
    Response 1: While we acknowledge that circumstances may occur that 
are beyond the control of the landowner and that may warrant 
consideration of a new baseline, we will not make renegotiation of the 
baseline a requirement when a permit is transferred to a new owner. 
Since these agreements are totally voluntary and a new owner does not 
have to agree to become a party to the existing SHA, there is no 
advantage to making renegotiation of the baseline a requirement when 
transferring permits. Including such a requirement may be a 
disincentive to property owners who are initially entering into an SHA 
as well as to potential new owners of a property covered under an 
existing agreement.
    If a new owner does not agree to become a party to the existing 
SHA, they would be in violation of the take provisions of section 9 of 
the Act (and associated regulations) if they return the property to 
baseline without an appropriate authorization/permit from us. Thus, 
just as there is an incentive for the original property owner to enter 
in an SHA, this same incentive exists for a new property owner to 
participate in and accept the transfer of an existing agreement.

Definition of Property Owner

    Issue 2: We proposed to revise 50 CFR 17.22(c)(1), 17.22(d)(1), 
17.32(c)(1), and 17.32(d)(1) to define applicants as property owners, 
including anyone with a fee-simple, leasehold, or other property 
interest sufficient to carry out the proposed management activities. 
One commenter stated that, by defining an applicant in terms of 
property ownership, our proposal creates confusion and is overly 
restrictive. The commenter points out that, in other sections of the 
regulations (e.g., permit application requirements at 50 CFR 
17.32(c)(1)(i) and issuance criteria at 50 CFR 17.32(c)(2)), we refer 
to the ``applicant'' and do not make any mention that the applicant 
must be a ``property owner.'' The commenter suggests that we should 
consistently use the term ``applicant'' rather than attempting to 
broaden property interests to cover the myriad of possibilities beyond 
fee simple ownership. The commenter believes that the requirements for 
CCAAs do not necessitate that an ``applicant'' also be a ``property 
owner'; the critical standard is whether an ``applicant'' can 
demonstrate the ability to meet the issuance criteria. Other commenters 
agreed with our proposed revision but some also noted that we should 
clarify the regulations further by specifically indicating that these 
agreements can take place only on non-Federal land consistent with the 
SHA and CCAA policies. Two commenters objected to any revision 
broadening the availability of SHAs or CCAAs for use on leased Federal/
State lands or rights of way. Another commenter suggested that we 
further elaborate in the regulatory language to indicate that 
``property owner'' includes owners of easements, water rights, and 
rights under long-term licenses.
    Response 2: The purpose of the proposed revision related to this 
issue was to clarify which types of property owners could qualify for 
an enhancement of survival permit for an SHA or CCAA and receive the 
assurances granted under these types of permits, as the SHA and CCAA 
policies refer to property owners in several different ways. The 
proposed regulation was not intended to limit certain types of entities 
or property owners from being permit holders, but simply to state that 
persons/entities who have a fee simple, leasehold, or other property 
interest that is sufficient to carry out the proposed management 
activities subject to State law qualify as property owners and may 
receive the assurances under an enhancement of survival permit. The 
important consideration is not the type of property ownership, but 
whether it gives the person/entity the power and authority to carry out 
the management activities and other provisions of the SHA or CCAA.
    We did not intend to broaden the availability of the assurances 
provided under these permits to make them include activities by non-
Federal property owners that are conducted on Federal lands. Such 
activities are subject to regulation by the responsible Federal agency. 
Federal agencies are not eligible for the assurances provided under 
SHAs or CCAAs as they have an affirmative responsibility for species 
conservation under section 7(a)(1) of the Act, and authorization for 
incidental take involving Federal land is covered under the provisions 
of section 7(a)(2) of the Act and implementing regulations. Only non-
Federal property owners conducting activities on non-Federal land may 
receive the assurances under an enhancement of survival permit for an 
SHA or CCAA (see 50 CFR 17.22(c)(5)(i), 17.22(d)(5), 17.32(c)(5)(i), 
and 17.32(d)(5)). This limitation in assurances to only non-Federal 
property owners is also clearly stated in the 1999 SHA policy, where we 
defined ``enrolled property'' to mean ``all private or non-Federal 
property, waters, or natural resources to which the assurances in a 
Safe Harbor Agreement apply and on which incidental taking is 
authorized under the enhancement of survival permit.''
    Under some circumstances, a State, tribal, or local agency, or 
other entity, may be able to work more promptly, effectively, and 
efficiently with individual property owners toward conservation of 
listed, candidate, or other at-risk species. In these cases, under the 
SHA and CCAA policies, we can enter into an ``umbrella'' or 
programmatic agreement with the appropriate agency or other entity. The 
agreement and associated enhancement of survival permit would specify 
the assurances and take allowances that could be distributed by the 
participating agency or other entity to the eligible individual non-
Federal property owners, usually through a Certificate of Inclusion. In 
these situations, the assurances and take allowances in the permit 
apply only to the individual non-Federal property owners who choose to 
be included. In some cases, which we anticipate will occur only very 
infrequently, we may issue the

[[Page 24086]]

enhancement of survival permit to a part of our agency (e.g., a Species 
Recovery Coordinator), who in turn issues Certificates of Inclusion to 
the non-Federal property owners. Again, it is only the non-Federal 
property owners who receive the assurances for the specified allowable 
take.
    Based on the confusion created by our proposal to use the term 
property owner, we will not make this proposed revision. Instead, we 
will continue to use the term ``applicant'' in 50 CFR 17.22(c)(1), 
17.22(d)(1), 17.32(c)(1), and 17.32(d)(1). The term ``non-Federal 
property owner'' is defined in the both the SHA and CCAA policies, but 
those definitions do not make it clear that persons who have a 
leasehold or other property interest that is sufficient to carry out 
the proposed management activities subject to State law qualify as non-
Federal property owners. Therefore, in this final rule we are adding a 
definition of ``property owner'' to 50 CFR 17.3 to clarify this issue.
    Issue 3: One commenter stated that the proposed revision will allow 
individuals who hold temporary or limited property interest to enter 
into agreements on properties that they do not own. The commenter 
believed this may be problematic and suggested we clarify our view on 
this or not make the proposed change.
    Response 3: The proposed revision would not change what type of 
property owner can receive an SHA or CCAA enhancement of survival 
permit. Persons/entities that have a lease on a property that they do 
not own have always been able to apply for and receive a permit for an 
SHA or CCAA provided they meet the issuance criteria. While the length 
of time a person holds a lease on a property and the terms of the lease 
will be considered when we issue these types of permits and can have an 
influence on the conservation benefit to the species, we are not 
establishing thresholds on these timeframes; each application will be 
evaluated on a case-by-case basis. Depending on the nature of the SHA 
or CCAA, we believe that entities with less-than-permanent interests in 
property or less-than-complete interests in property could meet the 
requirement that the applicant must have ``shown capability for and 
commitment to implementing all of the terms of the SHA or CCAA.''

Acknowledgement of Two Categories of Take (Safe Harbor Agreements Only)

    Issue 4: We proposed to revise 50 CFR 17.22(c)(1)(ii) and 
17.32(c)(1)(ii) to acknowledge that there are two broad categories of 
incidental take that may occur under an SHA. One commenter believed the 
proposed revisions require the property owner to submit more 
information to obtain a permit than was previously required since they 
would now have to indicate how take will occur as a result of both 
management and a return to baseline. The commenter believed this will 
increase the cost of obtaining a permit and, therefore, be less likely 
to occur. Other commenters agreed with the proposed change to the 
regulations, stating that it was appropriate that we amend these 
provisions.
    Response 4: We disagree with the commenter who believes that this 
change in the regulations requires the property owner to submit more 
information than was previously required. Information regarding how 
incidental take is likely to occur, both as a result of management 
activities and as a result of the return to baseline, has always been 
required in order to issue an enhancement of survival permit associated 
with an SHA, as we need this information to analyze the benefits and 
potential adverse effects of implementing the SHA. We acknowledge that, 
in some cases, management activities that a landowner undertakes may 
result in incidental take of the species, and such activities should be 
described in the SHA. The revision of the regulation is making this 
information requirement more obvious to an applicant who uses the 
regulations as a guide in applying for this type of permit.

Description of Future Land Use (Safe Harbor Agreements Only)

    Issue 5: Several commenters agreed with our proposed change at 50 
CFR 17.22(c)(1(ii) and 17.32(c)(1)(ii) to clarify the information being 
requested about future activities in relation to incidental take, as 
they believed this provision may have led to decreased use of SHAs in 
the past. Two commenters agreed with the revision. One of these 
commenters also stated that the existing language--which requires a 
``description of the land use or water management activity for which 
the applicant requests incidental take authorization''--also should be 
retained, and noted that this information is crucial to our evaluation 
of the proposed agreement and plan.
    Response 5: The original regulations at 50 CFR 17.22(c)(1)(ii) and 
17.32(c)(1)(ii), pertaining to application requirements for permits for 
enhancement of survival through SHAs, specified that the application 
include ``A description of the land use or water management activity 
for which the applicant requests incidental take authorization.'' This 
requirement has been mistakenly interpreted by some as an intent by us 
to limit use of private property after the term of the agreement and 
permit. This is not the intent of the regulations; we neither wish, nor 
have the authority, to limit such future use of property by a 
landowner. Therefore, we proposed 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), and to make it 
clearer that we are not requiring a description of future land use or 
water management activities that will take place after the term of the 
agreement and permit. We believe that our revision requires the 
appropriate information for evaluating the permit application and the 
SHA.
    Issue 6: One commenter suggested that we should announce that we 
are eliminating the requirement to describe future land uses from the 
SHA policy as well as the regulations in order to achieve consistency 
between the regulations and the policy.
    Response 6: We agree with the commenter that it would be helpful to 
amend the SHA policy to be consistent with these regulations. In order 
to amend the policy, we must publish a proposed policy amendment in the 
Federal Register and make that available for at least a 30-day comment 
period. Following the close of the comment period, we would analyze any 
comments and publish a final policy. As our budget allows, we will seek 
to go through this process to make this change in the SHA policy in the 
future.

Net Conservation Benefit (Safe Harbor Agreements Only)

    Issue 7: Several commenters agreed with the proposed change at 50 
CFR 17.22(c)(2)(ii) and 17.32(c)(2)(ii) to include the language 
``reasonably expected'' with regard to net conservation benefits. Some 
commenters stated that the current standard is unreasonable in 
requiring a certain finding of future events. Two commenters stated 
that, since nature can be complex and unpredictable, the change in 
language from ``will provide a net conservation benefit'' to ``is 
reasonably expected to provide a net conservation benefit'' is 
reasonable. One commenter believes that this language change will 
increase the likelihood that a landowner will enter into a conservation 
agreement.
    Response 7: We agree with the commenters who are in favor of the 
proposed revision. We suggested this revision to address confusion 
regarding the word ``will'' in the issuance criteria,

[[Page 24087]]

which could have been interpreted as suggesting that we must determine 
with complete certainty that a net conservation benefit will occur 
before a permit can be issued. This unrealistic standard was not the 
intent of the Safe Harbor Policy or the regulation.

Notification Requirement

    Issue 8: Our proposed regulation included replacing the requirement 
that a property owner notify us at least 30 days in advance of when he 
or she expects to incidentally take any species covered under a permit, 
with a requirement that the property owner notify us in advance of any 
incidental take ``when appropriate.'' One commenter stated that the 
``when appropriate'' language makes the regulation largely meaningless 
by leaving the decision to notify us entirely up to the discretion of 
the permittee. This commenter suggested we change the language to read, 
``The permittee is required to notify FWS at least 30 days before 
engaging in an activity that could result in the take of a listed 
species, unless FWS agrees to an activity with shorter notification or 
immediate action.'' Another commenter agreed with our proposed change 
as long as we have the authority to evaluate situations on a case-by-
case basis so that emergency situations remain the exception and not 
the rule. Other commenters agreed with our proposed change, stating 
that it provides the flexibility that both we and the permit applicants 
need to negotiate a notification requirement that makes sense for each 
specific agreement. Two commenters did not agree that the mandatory 30-
day advance notice requirement in the original regulation was an undue 
burden or a significant disincentive for landowners who are considering 
applying for either SHAs or CCAAs. One commenter also stated that, even 
if a species cannot be captured and relocated, it is both prudent and 
appropriate that we always be aware in advance of the impending 
incidental take of species covered under the permit or return of the 
property to baseline conditions. Another commenter suggested that if we 
make the proposed change, strict guidelines clearly defining the 
circumstances under which advance notification would not be required 
must be either incorporated into the regulations or into individual 
SHAs and CCAAs. Still another commenter believed the public should be 
informed 90 days before any ``killing'' is to take place, that any 
permittee should give us 120 days' notice of when the permittee expects 
to ``take/kill'' wildlife, and the general public must be given full 
facts on this ``killing.''
    Response 8: The purpose of the proposed revision regarding 
notification was to provide flexibility for determining when a 
notification requirement would be appropriate. For some species and 
some SHAs, notification prior to take may not be necessary, while for 
other species and SHAs notification more than 30 days prior to take may 
be appropriate. By adding the term ``when appropriate,'' the Service 
and applicants can determine what will work best for their individual 
SHA. When the notification timing is decided, it will be clearly 
described in the SHA and the associated permit. In addition, each 
permit holder is required to report to the Service, usually annually, 
on the activities associated with his or her SHA. This report would 
include a description of any take that had occurred since the last 
report. Therefore, the Service would still know that the take 
associated with bringing that property back to baseline had occurred.
    We disagree with the commenter who suggested that the public should 
be informed prior to the occurrence of any take associated with a 
permit. A notification of the receipt of each proposed SHA must be 
published in the Federal Register and a public comment period, usually 
30 to 60 days, is required. During this time, the public has an 
opportunity to read and provide comments on the terms of the SHA, and 
such terms include a description for how take may occur (for initial 
and ongoing management activities) and when it will likely occur (when 
the conditions of the permit have been met).

Mitigation and Conserved Habitat Areas

    Issue 9: Several commenters believed that the proposed revisions at 
17.22(c)(5)(ii) and 17.32(c)(5)(ii) to remove references to additional 
mitigation measures and to ``conserved habitat areas'' make SHAs 
completely subject to the discretion of the permittee, and that the 
original language was more than sufficient to set reasonable 
limitations on requirements for additional conservation measures. These 
commenters stated that the proposed change does not allow us to require 
additional conservation measures without the consent of the permittee, 
even if such additional measures are found to be necessary to avoid 
harming the affected endangered or threatened species. Several other 
commenters agreed with our proposed changes, stating that removing 
references to the terms ``mitigation'' and ``conserved habitat areas'' 
made sense, since there are no mitigation requirements or conserved 
habitat areas in either the SHA or CCAA policies.
    Response 9: The intent of this change was solely to match the 
regulations for SHAs and CCAAs with the respective policies, in order 
to eliminate confusion. Neither policy has any mitigation requirements 
or makes any references to the term ``conserved habitat areas;'' these 
terms are used in conjunction with Habitat Conservation Plans (see 50 
CFR 17.22(b)). As we stated in our proposed rule, establishing 
authority to require a landowner to carry out other measures that were 
not previously agreed to by the property owner is not appropriate for 
SHAs and CCAAs.

Other Conservation Measures

    Issue 10: One commenter believed the proposed changes at 50 CFR 
17.22(c)(5)(ii), 17.22(d)(5)(ii), 17.32(c)(5)(ii), and 17.32(d)(5)(ii) 
would undermine the basic concept of adaptive management in that, while 
a variety of changing circumstances can and must be reasonably 
foreseen, the specific responses to those changing circumstances that 
will be most appropriate may not be foreseeable. The commenter believes 
the Service should not provide regulatory assurances because we are 
dealing with the uncertainties of a necessarily changing biological 
world, and it is only reasonable to assume that some changes might 
occur. Another commenter stated that a conservation agreement should 
not be entered into if the landowner will be allowed to knowingly 
degrade the habitat they have agreed to protect. This commenter stated 
further that we should not expose ourselves to potential pressure from 
landowners who have knowingly and willingly degraded habitat and then 
expect us to modify the conservation agreement to allow for the new, 
degraded condition. Other commenters supported the proposed change, 
stating that as SHAs are voluntary agreements, it is inconsistent for 
one party to reserve the right to change the terms of the agreement 
unilaterally and to require the other party to adhere to unilaterally 
changed terms.
    Response 10: We do not believe that the proposed changes undermine 
the concept of adaptive management. We actively promote this concept, 
recognizing the value of incorporating adaptive management into 
conservation agreements in dealing with changing situations and new 
information. Under SHAs, landowners agree to manage their lands to 
provide a net conservation

[[Page 24088]]

benefit to listed species and cannot degrade the habitat below the 
biologically-based baseline. Likewise, under CCAAs, landowners agree to 
manage their lands to remove threats to at-risk species. Also, because 
these agreements are voluntary, and sought by landowners who are 
willing to provide habitat, we do not believe landowners will willingly 
degrade habitat in order to modify the conservation agreement to allow 
for the new, degraded condition. We agree that we cannot reserve the 
right to change the terms of the agreement unilaterally while requiring 
the permittee to implement the changed terms.

Revocation

    Issue 11: Several commenters believed the changes to the revocation 
language (at 50 CFR 17.22(c)(7), 17.22(d)(7), 17.32(c)(7), and 
17.32(d)(7)) would severely limit our ability to revoke a permit even 
when the continuation of the permitted activity would appreciably 
reduce the likelihood of survival and recovery of the species in the 
wild. These commenters believe that the proposed revision pertaining to 
the option of compensating a property owner to forgo an activity could 
result in a need for us to obtain large amounts of funding, and that 
this would be unreasonable and could lead to situations where 
permittees profit by proposing activities that would harm the species 
for the purpose of being paid by the Service not to engage in the 
activity. Other commenters thought the option of public compensation 
for imperiled species was highly inappropriate since they are a public 
trust resource. Two commenters also noted that the option of relocating 
the species undermines the purpose of SHAs and CCAAs, which is to 
secure habitat for imperiled species. Another commenter objected to the 
proposed change, in part, because the commenter believed we are 
applying the revocation standard for Habitat Conservation Plans to 
SHAs, which are totally voluntary agreements. This commenter believed 
that permits for an SHAs should not be revoked for any reason except as 
provided for under 50 CFR 13.28(a)(1) through (4) or unless 
continuation of the permitted activity would be inconsistent with the 
criterion set forth in 50 CFR 17.22(c)(2)(iii) and the inconsistency 
has not been remedied in a timely fashion. The commenter also suggested 
that a permit should not be revoked for this last reason unless the 
permittee has declined an offer from us to purchase their property (or 
an interest) at fair market value or has refused our request to 
relocate individual animals from their property in order to avoid the 
inconsistency (with 50 CFR 17.22(c)(2)(iii)).
    Response 11: We disagree that our proposed revocation language 
would severely limit our ability to revoke a permit even when the 
continuation of the permitted activity would appreciably reduce the 
likelihood of the survival and recovery of the species in the wild. The 
regulations authorize the Service to revoke a properly implemented SHA 
or CCAA enhancement of survival permit when such conditions exist. We 
believe that our proposed change provides an array of options to pursue 
in order to avoid permit revocation, but does not inappropriately limit 
our ability to revoke a permit in the highly unlikely event that such 
an action is necessary.
    We disagree with those commenters who believe that the proposed 
changes to the revocation language would result in some applicants 
knowingly proposing certain activities that they actually do not intend 
to implement, in order to potentially profit from being paid to not 
engage in such activities later. Applicants enter into SHAs and CCAAs 
in good faith and we work diligently with them to design and then 
implement agreements that will have the intended outcomes. Should a 
lapse in permit compliance occur, we want to retain our flexibility to 
work with the permit holder to rapidly be back in compliance, in order 
to continue activities that are benefiting the covered species. 
However, in the highly unlikely event that this should not be possible, 
we are obligated to do whatever is necessary for the continued survival 
of the species. While we acknowledge that potentially having to 
purchase properties or conservation easements may be costly, we do not 
anticipate this need arising frequently, if at all, particularly in 
light of other available options for avoiding revocation of a permit.
    With regard to the commenters who believe that potentially 
relocating species undermines the purpose of SHAs and CCAAs, we 
disagree with their premise that the purpose of these agreements is to 
secure habitat for imperiled species. While the outcome of these 
agreements may be to secure habitat, that is not their specific 
purpose. The purpose of an SHA is to provide the expectation of a ``net 
conservation benefit'' that will aid in a species'' recovery, either 
directly or indirectly, as described in the SHA policy and associated 
regulations. The purpose of a CCAA is to contribute to precluding the 
need to list the species. If relocation of individuals of a species 
covered under a SHA or CCAA is deemed appropriate, such an action would 
not undermine those agreements or the purpose of SHAs or CCAAs.
    Our proposed revision of the regulation pertaining to revocation of 
permits associated with SHAs and CCAAs was designed to address concerns 
that the regulation, as adopted in 1999, may be a disincentive to 
landowners considering development of such agreements. The proposed 
change is consistent with our goal of encouraging non-Federal property 
owners to engage in SHAs and CCAAs. We disagree that it would be 
appropriate to limit the options to pursue, as suggested by one 
commenter, to include only the purchase of a permittee's property (or 
interest) at fair market value, or the relocation of individual animals 
from the property. Rather, we believe it is in the best interest of a 
permittee, as well as being in the public interest, to have a broader 
range of options available for the Service and the permittee to pursue, 
as identified in the proposed rule. The revised text provides further 
clarity and assurance to landowners of the very strong commitment on 
the part of the Service to pursue, with the consent of the permittee, 
all relevant and appropriate options to avoid permit revocation.
    Issue 12: One commenter stated that use of the portion of our 
proposed regulatory language on revocation that relies on the 
definition of destruction or adverse modification of critical habitat 
will invite legal challenges since this definition was invalidated by 
the 5th Circuit Court of Appeals in Sierra Club v. U.S. Fish and 
Wildlife Service, 245 F.3d 434 (5th Cir. 2001).
    Response 12: Based on the statutory authority provided under 
section 7(a)(2) of the Act, the Director may revoke a permit if 
continuation of the permitted activity would either be likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of designated critical habitat.
    Issue 13: One commenter stated that it was appropriate for us to 
clearly include language in the regulations indicating that we would 
exhaust our alternatives before revoking a permit, particularly given 
the truly voluntary nature of SHAs and CCAAs. However, the commenter 
cautioned that it is extremely important that the time used in taking 
alternate actions not further imperil an endangered species. Another 
commenter supported our proposed revocation language and believed that, 
by indicating we would pursue all

[[Page 24089]]

appropriate options to avoid permit revocation, the incentive for 
potential applicants to enter into SHAs and CCAAs would increase.
    Response 13: We agree with these commenters and we try to deal with 
these issues in a time-sensitive manner. Also, see our response to 
issue 11.
    Issue 14: A commenter stated that we do not offer any legal basis 
or meaningful explanation for the proposed revision of the revocation 
language other than the current revocation text ``may create 
disincentives to landowners considering the development of a [SHA or 
CCAA].'' The commenter believes including authority to revoke a permit 
if we find that the continued permitted activity would ``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'' may exceed our authority. The commenter 
further noted that the Service has by regulation already asserted the 
``jeopardy'' standard as a basis for revocation. The commenter noted 
that they cannot, however, support the continued extension of the 
current regulation (which asserts the ``jeopardy'' standard) to reach 
future direct or indirect alteration of critical habitat by landowners 
operating under SHAs and CCAAs in the absence of a clear legal basis.
    Response 14: The revocation provisions of both the 1999 regulations 
and the revised regulations are based on the legal premise that the 
Service may revoke a permit if continuation of the activities 
authorized by the permit would violate the substantive standards of 
section 7(a)(2) of the Act, which include both the ``jeopardy'' and 
``critical habitat'' standards. Our issuance of an enhancement of 
survival permit in association with an SHA or a CCAA is a Federal 
action that is subject to an intra-Service consultation under section 
7(a)(2) of the Act. The 1999 revocation provisions indicated that the 
Service may revoke a permit if continuation of the permitted activity 
becomes inconsistent with the no jeopardy issuance criterion. The 
revised regulation clarifies that the Service has the authority to 
revoke a permit that violates either the no jeopardy standard or the 
adverse modification of critical habitat standard in section 7 of the 
Act. The language in the revised revocation provisions is taken 
directly from the definitions of ``jeopardize the continued existence 
of'' and ``destruction or adverse modification'' in the Service's 
section 7 regulations (50 CFR 402.02).

Relationship to No Surprises

    Issue 15: One commenter stated that we should postpone finalizing 
this rulemaking based on the recent court ruling in Spirit of the Sage 
Council v. Norton on the ``no surprises rule'' and ``permit revocation 
rule.'' The commenter noted that the ruling vacated the ``permit 
revocation rule'' and remanded both rules to the Service for further 
consideration.
    Response 15: The Spirit of the Sage Council v. Norton ruling deals 
only with the no surprises rule and permit revocation language for HCPs 
(see 50 CFR 17.22 and 17.32(b)(8)). The ruling does not apply to 
regulations for SHAs or CCAAs and thus, we see no need to postpone this 
rulemaking as a result of the ruling.

Other Issues

    Issue 16: One commenter, while agreeing with the proposed 
regulation changes, stated that we did not address the issue of 
neighboring property owner vulnerability. This commenter stated that, 
while a participating property owner may enjoy greater certainty that 
their habitat conservation work will not be ``punished'' under the Act, 
the property owner may opt not to participate in an SHA for fear of 
placing their neighbors in ``ESA jeopardy.''
    Response 16: We agree that the fear of increasing a neighboring 
property owner's potential liability under section 9 of the Act may be 
a disincentive for some property owners to enter into an SHA. The SHA 
policy offers flexibility when dealing with neighboring landowners to 
address this concern. Our work with property owners on an SHA includes 
working with them in relation to contacting neighboring landowners to 
see if they also are willing to voluntarily enter into an agreement. 
Also, designing a programmatic agreement that can cover multiple 
landowners, each of which may be covered through issuance of a 
certificate of inclusion, is one of the ways we may help resolve the 
concern raised by the commenter. Consequently, we do not believe that 
the regulations need to be revised to more directly address neighboring 
property owners.
    Issue 17: A commenter stated that, while they support many of the 
proposed revisions, they have concerns over the existence of sufficient 
resources for us to adequately implement SHAs and CCAAs. The commenter 
believes the largest impediment to widespread utilization of the SHA 
and CCAA programs is the inherent uncertainty about the amount of time 
and cost of the permit application process and urges us to devote the 
resources necessary to fully implement the proposed revisions.
    Response 17: We believe SHAs and CCAAs are very important tools 
that help to conserve listed and at-risk species. We will continue to 
seek funding for these programs in a manner that recognizes our need to 
balance funding for our work on SHAs and CCAAs with the other work we 
do as part of our Endangered Species program, such as listing, 
consultations, and recovery work.
    Issue 18: One commenter recommended that we revise our regulations 
to provide more certainty with respect to the procedures we use to 
process SHA and CCAA applications and complete the issuance of the 
permits. To encourage more voluntary agreements, the commenter 
suggested we include a time limit of 90 days for our review of 
applications. The commenter also suggested that we include language 
that would require us to provide a copy of the proposed permit to the 
applicant for review prior to final issuance. The commenter believed 
this would allow for correction of factual data and of inconsistencies 
between the permit and agreement and, thus, increase the efficiency of 
the permit process.
    Response 18: We disagree that our regulations need to be changed in 
the manner suggested by the commenter. We work diligently to process 
these agreements and their associated permits as expeditiously as 
possible. For a variety of reasons, some agreements take longer to 
develop and review than others. For example, an umbrella or 
programmatic SHA or CCAA that involves more than one species will 
usually take longer to develop and review than an agreement that 
involves a single landowner and a single species. We do agree with the 
commenter that providing the applicant with a copy of the proposed 
permit for review prior to final issuance helps to increase the 
efficiency of the permitting process, and in fact we do routinely 
develop and share the permit terms and conditions, along with other 
documents, with the applicant throughout the agreement development 
process.
    Issue 19: One commenter urged that we use the biologically based 
baseline for judging whether to revise an SHA, and not use the 
``jeopardy'' test.
    Response 19: We disagree with the commenter that we should not use 
a ``jeopardy test.'' We use both a biologically based baseline and a 
``jeopardy'' analysis in developing an SHA with an applicant. A 
baseline, expressed in numbers of individuals of the species and/or 
acres of occupied

[[Page 24090]]

habitat, is determined for each species enrolled under the applicant's 
SHA. If the applicant wants to add another species sometime in the 
future, a baseline is also established for that species. If something 
beyond the applicant's control happens to change the baseline (e.g., a 
hurricane knocking down nest trees for the red-cockaded woodpecker), 
then a change in the baseline may be necessary.
    Our issuance of an SHA permit is a Federal action that requires an 
intra-Service consultation under section 7 of the Act. Specifically, 
section 7(a)(2) of the ESA requires us to ``insure that any action 
authorized, funded, or carried out by such agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of critical habitat of such species.* * *'' The jeopardy analysis is 
based on a ``biological baseline'' of the species as a whole, not just 
the individual or populations of the species to be enrolled under the 
SHA. Therefore, we believe that no changes are necessary in the way we 
evaluate SHAs using a jeopardy analysis.
    Issue 20: One commenter stated that any changes to programs 
affecting listed species should not be made unless the changes 
substantially outweigh all detriments to the species.
    Response 20: We must ensure that any proposed SHAs and CCAAs will 
meet the issuance criteria before we can issue the permit. One of the 
issuance criteria for SHAs is to ensure that the proposed activities 
will be likely to result in a net conservation benefit for the species. 
What constitutes a net conservation benefit will vary depending upon 
the species and the proposed activities. However, it generally means 
that any potential negative impact to the species is outweighed by the 
benefits of the activities. The Service and applicant may agree to 
amend an existing agreement or permit for several reasons. When the 
amendment involves the species and or property enrolled, those changes 
must still meet the ``net conservation benefit'' standard.
    Issue 21: One commenter believed that we should not utilize our 
limited resources to enter into CCAAs (or CCAs) because it is doubtful 
they could benefit the species biologically because the conservation 
needs of the species would be too speculative, unlike that for listed 
species, which are more fully understood.
    Response 21: We disagree with the commenter. Candidate species are 
those species for which we have sufficient information on file relative 
to status and threats to support issuance of proposed listing rules; 
therefore, in general, the conservation needs of these species are no 
more speculative than for listed species. We do agree that for some 
species at-risk, we may not fully understand the biology of the 
species, but through CCAAs that incorporate adaptive management 
principles, we may gain additional information on the conservation 
needs of the species, while at the same time protecting habitat or 
reducing threats. We believe that, by spending part of our Endangered 
Species Program budget on the conservation of such species, we may be 
able to preclude the need to list them under the Act. By precluding or 
removing the need to list a species through early conservation efforts 
we increase the likelihood that simpler, more cost-effective 
conservation options will still be available and that conservation will 
ultimately be successful, and at the same time, property owners have a 
much greater opportunity to maintain land use and development 
fIexibility.
    Issue 22: One commenter was concerned that some of the proposed 
revisions would result in the permitting of activities that operate to 
the disadvantage of endangered and threatened species, as well as 
candidate and proposed species, and would not be consistent or in 
compliance with the purpose of the Endangered Species Act.
    Response 22: We will not issue enhancement of survival permits that 
are not consistent or in compliance with the purposes of the Act. 
Before we can issue a permit, we must determine that the applicant 
meets the issuance criteria. For SHAs, the agreement must provide the 
expectation of a net conservation benefit to the species. For CCAAs, 
the agreement must contain conservation measures that provide benefits, 
when combined with those benefits that would be achieved if it is 
assumed that conservation measures were also to be implemented on other 
necessary properties, would preclude or remove the need to list the 
species. Also, under section 7 of the Act, we must ensure that the 
conservation measures included in any agreement with assurances are not 
likely to jeopardize any listed or proposed species or result in result 
in the destruction or adverse modification of designated or proposed 
critical habitats for such species. Thus, we are operating in 
compliance with the purposes of the Act.
    Issue 23: One commenter was concerned about a perceived 
inconsistency between the proposed revisions and the CCAA policy. The 
commenter believes the CCAA policy does not require an applicant to 
remove the threats to a covered species. Rather we must find that the 
conservation benefits of the measures implemented within a covered 
area, when combined with those benefits if conservation measures were 
also implemented elsewhere within the range of a covered species, would 
cumulatively preclude or remove the need to list. The commenter asked 
us to clarify this inconsistency in order to avoid confusion. The 
commenter notes that (1) a considerable amount of time, money and 
resources are necessary to develop plans that satisfy regulatory 
standards, (2) this commitment of time and resources can be a 
disincentive to participation in conservation planning by non-Federal 
parties, and (3) clarifying this regulation to expedite the processing 
of conservation plans and permit applications will therefore benefit 
the applicant, the Service, and species alike.
    Response 23: We do not believe there is an inconsistency with the 
CCAA policy. The CCAA policy does not require that an applicant's 
actions remove the threats to a covered species throughout its range. 
Rather, the policy states: ``While the Services realize that the 
actions of a single property owner usually will not preclude or remove 
any need to list a species, they also realize the collective effect of 
the actions of many property owners may be to preclude or remove any 
need to list.'' As called for in the CCAA policy and associated 
regulations, the CCAA should clearly describe how the proposed 
conservation measures would reduce or eliminate the threats to the 
covered species on the enrolled property. The types of conservation 
measures specified in the CCAA will depend upon the types, amounts, and 
condition of habitats existing on and off the enrolled property, the 
threats to the covered species that are being addressed, and the degree 
of imperilment of the covered species. In many cases, implementing only 
one CCAA for a species will not preclude the need to list the species, 
but a number of CCAAs in combination may achieve this goal.

Summary of Changes From the Proposed Rule

    We have revised the proposed regulation by adding a definition of 
``property owner'' to Sec.  17.3. We have withdrawn the proposal to 
amend the first sentence of the following sections: Sec. Sec.  
17.22(c)(1), 17.22(d)(1), 17.32(c)(1), and 17.32(d)(1) that relates to 
the application requirements; we will

[[Page 24091]]

continue to use the term ``applicant'' in these sections.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal or policy issues. 
This rule was reviewed by the Office of Management and Budget (OMB) in 
accordance with the four criteria discussed below.
    (a) This 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 
this rule deals with revisions that clarify rather than substantially 
alter our 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; we 
believe these changes will increase efficiency by 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 rule is not expected to create 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 (NOAA 
Fisheries), the implementing regulations subject to this rule apply to 
the Fish and Wildlife Service exclusively. NOAA Fisheries has not 
adopted similar regulations to the Fish and Wildlife Service regarding 
these policies.
    (c) This 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 and, as a result, this rule has undergone OMB review. If this 
regulation can help facilitate wider adoption of the Safe Harbor 
Agreement 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), 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. 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 rule's potential effects on small entities as 
required by the Regulatory Flexibility Act (RFA). The 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. Therefore, we do not expect these 
changes to affect a substantial number of small entities. To date, we 
have issued 22 Safe Harbor Agreement permits and 5 Candidate 
Conservation Agreements with Assurances permits, for an average of 
approximately five Safe Harbor Agreement permits and one Candidate 
Conservation Agreement with Assurances permit per year. We expect to 
issue approximately the same number of enhancement of survival permits 
per year. Given the low number of enhancement of survival permits 
expected to be issued, and the fact that this rule provides 
clarifications rather than substantial changes to the regulations, we 
certify that this rule will not have a significant economic impact on a 
substantial number of small businesses, organizations, or governments 
pursuant to the RFA.

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. 
Although this rule is a significant action under Executive Order 12866, 
it 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 rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. We expect 
that this rule will not result in any significant additional 
expenditures.
    (b) This 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 rule imposes no 
obligations on State, local, or tribal governments.

Takings

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

Federalism

    In accordance with Executive Order 13132, this 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 rule 
with appropriate resource agencies throughout the United States.

Civil Justice Reform

    In accordance with Executive Order 12988, this 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 rule does 
not directly affect Tribal resources. The effect of this rule on Native 
American Tribes would be determined on a case-

[[Page 24092]]

by-case basis through 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 will consult with affected Tribes during individual 
evaluations of permit applications.
    (b) We will treat Tribes on a government-to-government basis during 
individual evaluations of permit applications.
    (c) We will consider Tribal views during individual evaluations of 
permit applications.
    (d) We will consult with the appropriate bureaus and offices of the 
Department about the identified effects of this rule on Tribes during 
individual evaluations of permit applications.

Paperwork Reduction Act

    This rule does not impose 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 associated with this 
final rule. 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 OMB 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 rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. We have determined that this 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, under Section 7(a)(2), 
or confer, under Section 7(a)(4), as appropriate, on the issuance of 
each individual permit. During consultation or conference, the 
potential risks to listed or proposed species and designated or 
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 or proposed species 
or designated or proposed critical habitat.

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.


0
For the reasons set forth in the preamble, we hereby amend Title 50, 
Chapter I, subchapter B of the Code of Federal Regulations, as set 
forth below:

PART 13--[AMENDED]

0
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.


0
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]

0
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.


0
4. Amend Sec.  17.3 as set forth below by:
0
a. Revising the definitions of ``Changed circumstances'' and 
``Unforeseen circumstances''; and
0
b.Adding in alphabetical order a definition for ``Property owner''; 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).
* * * * *
    Property owner with respect to agreements outlined under Sec. Sec.  
17.22(c), 17.22(d), 17.32(c), and 17.32(d) means a person with a fee 
simple, leasehold, or other property interest (including owners of 
water or other natural resources), or any other entity that may have a 
property interest, sufficient to carry out the proposed management 
activities, subject to applicable State law, on non-Federal land.
* * * * *
    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.
* * * * *

0
5. Amend Sec.  17.22 by revising paragraphs (c)(1)(ii), (c)(2)(ii), 
(c)(3)(ii),

[[Page 24093]]

(c)(5)(ii), (c)(7), (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) * * *
    (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) * * *
    (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 
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.
* * * * *

0
6. Amend Sec.  17.32 by revising paragraphs (c)(1)(ii), (c)(2)(ii), 
(c)(3)(ii), (c)(5)(ii), (c)(7), (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) * * *
    (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

[[Page 24094]]

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) * * *
    (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 
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.
* * * * *

    Dated: April 12, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-9982 Filed 4-30-04; 8:45 am]
BILLING CODE 4310-55-P