[Federal Register Volume 89, Number 72 (Friday, April 12, 2024)]
[Rules and Regulations]
[Pages 26070-26102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07602]



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Vol. 89

Friday,

No. 72

April 12, 2024

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Parts 13 and 17





Endangered and Threatened Wildlife and Plants; Enhancement of Survival 
and Incidental Take Permits; Final Rule

  Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules 
and Regulations  

[[Page 26070]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

[Docket No. FWS-HQ-ES-2021-0152; FF09E41000 245 FXES111609C0000]
RIN 1018-BF99


Endangered and Threatened Wildlife and Plants; Enhancement of 
Survival and Incidental Take Permits

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish Wildlife Service (Service), revise the 
regulations concerning the issuance of enhancement of survival and 
incidental take permits under the Endangered Species Act of 1973, as 
amended. The purposes of these revisions are to: clarify the 
appropriate use of enhancement of survival permits and incidental take 
permits; clarify our authority to issue these permits for non-listed 
species without also including a listed species; simplify the 
requirements for enhancement of survival permits by combining safe 
harbor agreements and candidate conservation agreements with assurances 
into one agreement type; and incorporate portions of our five-point 
policies for safe harbor agreements, candidate conservation agreements 
with assurances, and habitat conservation plans into the regulations to 
reduce uncertainty. We also made technical and administrative revisions 
to the regulations. The regulatory changes are intended to reduce costs 
and time associated with negotiating and developing the required 
documents to support the applications. We anticipate that these 
improvements will encourage more individuals and companies to engage in 
these voluntary programs, thereby generating greater conservation 
results overall.

DATES: This final rule is effective May 13, 2024.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this rule, please note that the 
Office of Management and Budget (OMB) is required to make a decision 
concerning the collection of information contained in this rule between 
30 and 60 days after publication of this rule in the Federal Register. 
Therefore, comments should be submitted to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, (see 
``Information Collection'' section below under ADDRESSES) by May 13, 
2024.

ADDRESSES: Public comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
are available on the internet at https://www.regulations.gov in Docket 
No. FWS-HQ-ES-2021-0152.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted within 30 days of publication of this document to https://www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or [email protected] (email). 
Please reference OMB Control Number 1018-0094 in the subject line of 
your comments.

FOR FURTHER INFORMATION CONTACT: Bradley Shoemaker, Chief, Branch of 
Recovery and Conservation Planning, U.S. Fish and Wildlife Service, 
5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone: 703-358-
2307. Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Background

    The purposes of the Endangered Species Act of 1973, as amended 
(ESA; 16 U.S.C. 1531 et seq.), are to provide a means to conserve the 
ecosystems upon which listed species depend, to develop a program for 
the conservation of listed species, and to achieve the purposes of 
certain treaties and conventions. Moreover, the ESA states that it is 
the policy of Congress that the Federal Government will seek to 
conserve endangered and threatened species and use its authorities to 
further the statutory purposes (16 U.S.C. 1531(c)(1)). The ESA's 
implementing regulations are in title 50 of the Code of Federal 
Regulations (CFR).
    Generally, ESA section 10(a) allows the Service to issue permits. 
The 1982 ESA amendments restructured section 10(a) to provide a 
mechanism for issuance of permits to non-Federal entities to authorize 
take of listed species that would otherwise be prohibited under section 
9. Section 10(a)(1)(A) provides for the issuance of enhancement of 
survival permits associated with conservation actions that are 
beneficial to the species. Section 10(a)(1)(B) was added to allow for 
the issuance of incidental take permits to authorize take that is 
incidental to, but not the purpose of, carrying out otherwise lawful 
activities.
    In 1999, we promulgated regulations (at 50 CFR 17.22(c) and (d) and 
50 CFR 17.32(c) and (d)) and finalized policies regarding safe harbor 
agreements (SHAs) and candidate conservation agreements with assurances 
(CCAAs) to incentivize the use of enhancement of survival permits to 
further species recovery and conservation (64 FR 32706, 32717, and 
32726; June 17, 1999).
    We published minor corrections to the SHA and CCAA regulations 
later in 1999 (64 FR 52676, September 30, 1999) and again in 2004 (69 
FR 24084, May 3, 2004). In 2016, we revised the CCAA regulations (at 
Sec. Sec.  17.22(d) and 17.32(d); 81 FR 95053, December 27, 2016) and 
policy (81 FR 95164, December 27, 2016) to simplify the net 
conservation benefit standard as part of the issuance criteria.
    Section 10(a)(1)(B) allows for the issuance of incidental take 
permits provided the application meets the statutory issuance criteria 
(16 U.S.C. 1539(a)(2)(A)(i)-(iv)). In 1985, we promulgated regulations 
under section 10(a)(1)(B) (at 50 CFR 17.22(b) and 17.32(b); 50 FR 
39681, September 30, 1985). In 1996 we issued guidance in the form of 
the Habitat Conservation Planning and Incidental Take Permitting 
Processing Handbook (61 FR 63854, December 2, 1996). We published an 
addendum to the handbook, known as the ``five-point policy,'' in 2000 
(65 FR 35242, June 1, 2000), and we published a revised Habitat 
Conservation Planning and Incidental Take Permitting Processing 
Handbook in 2016 (81 FR 93702, December 21, 2016).
    This final rule changes the implementing regulations for ESA 
section 10 related to enhancement of survival permits supported by SHAs 
and CCAAs (Sec. Sec.  17.22(c) and (d) and 17.32(c) and (d)) and to 
incidental take permits supported by habitat conservation plans 
(Sec. Sec.  17.22(b) and 17.32(b)). This rulemaking also changes 
relevant portions of 50 CFR part 13 (which applies to all Service 
permits) and part 17 (which applies to all Service permits under the 
ESA) to incorporate provisions that are necessary to implementing 
Sec. Sec.  17.22 and 17.32, excluding Sec. Sec.  17.22(a) and 17.32(a). 
This rulemaking modifies ESA section 10(a)(1)(A) and (B) regulations to

[[Page 26071]]

improve, clarify, and expedite the Service's administration of those 
provisions (again, excluding Sec. Sec.  17.22(a) and 17.32(a)). This 
rulemaking does not affect other permits issued under the ESA, such as 
import or export permits.
    The regulatory changes in this final rule will reduce the time it 
takes for applicants to prepare and develop the required documents to 
support applications for section 10(a) permits issued under Sec. Sec.  
17.22(b) and (c) and 17.32(b) and (c), thus accelerating permit 
issuance and conservation implementation. This goal will be 
accomplished by:
     clarifying the appropriate permit mechanism for 
authorizing take;
     simplifying our permitting options under section 
10(a)(1)(A) by combining CCAAs and SHAs into one agreement type and 
allowing the option to return to baseline;
     providing additional flexibility under section 10(a)(1)(B) 
for the Service to issue permits for non-listed species only, without 
requiring that a listed species also be covered by the permit; and
     clarifying the requirements for complete applications 
under the provisions at both ESA section 10(a)(1)(A) and (B).
    We expect these changes to reduce the costs and time associated 
with negotiating and developing the required documents to support the 
applications. We anticipate that these improvements will encourage more 
individuals and companies to engage in these voluntary programs, 
thereby generating greater conservation results overall.
    The regulatory changes in this final rule clarify under which 
statutory provision it is appropriate for the Service to authorize the 
proposed take, either through an enhancement of survival permit 
(section 10(a)(1)(A)) or incidental take permit (section 10(a)(1)(B)). 
The statutory language in the ESA clearly reflects Congress's intent 
that take for scientific purposes or to enhance the propagation or 
survival of the affected species should be authorized under section 
10(a)(1)(A) through an enhancement of survival permit. By contrast, 
take that is incidental to, but not the purpose of, the carrying out of 
otherwise lawful activities is to be authorized under section 
10(a)(1)(B) through an incidental take permit. Consistent with 
congressional intent, when we determine under which permit authority to 
authorize a take, we must first consider the nature and purpose of the 
activities causing the take.
    We clarify in the final rule that enhancement of survival permits 
authorize take of covered species, above the baseline condition, when 
the conservation actions in the associated conservation agreement are 
of the nature of improving the condition of the species or the amount 
or quality of its habitat to provide a net conservation benefit to the 
covered species (e.g., beneficial actions that address threats to the 
covered species, establish new wild populations, or otherwise benefit 
the covered species). In contrast, incidental take permits authorize 
take that is incidental to otherwise lawful activities (e.g., resource 
extraction, commercial and residential development, and energy 
development), and the conservation actions in the associated 
conservation plan are of the nature of minimizing and mitigating the 
impacts of the anticipated incidental take for the covered species. 
Maintaining this distinction between these two permit types will ensure 
that take is authorized under the proper statutory authority, reduce 
confusion for applicants, expedite the permitting process, and maximize 
conservation of listed and at-risk species.
    This final rule clarifies that the Service may issue enhancement of 
survival permits and incidental take permits for non-listed species 
without including a listed species on the permit. Immediately upon 
permit issuance, the permittee will begin implementing the conservation 
commitments for the non-listed covered species. However, the take 
authorization will not go into effect until such time as the non-listed 
covered species is listed as either endangered or threatened, provided 
the permittee is complying with the permit and properly implementing 
the agreement or plan. This approach is consistent with both (1) 
enhancement of survival permits currently issued for non-listed species 
under 50 CFR 17.22(d) or 17.32(d) and supported by a CCAA; and (2) 
incidental take permits currently issued under 50 CFR 17.22(b) or 
17.32(b) and supported by a conservation plan that includes both listed 
and non-listed species. Our approach furthers the statutory purposes of 
the ESA by encouraging conservation of fish and wildlife before species 
become depleted to the point that they require listing. This final rule 
simplifies the ESA section 10(a)(1)(A) regulations by covering both 
listed and non-listed species for enhancement of survival permits under 
Sec. Sec.  17.22(c) and 17.32(c), and by rescinding the CCAA 
regulations under Sec. Sec.  17.22(d) and 17.32(d) (which are 
incorporated into Sec. Sec.  17.22(c) and 17.32(c)).
    We are clarifying the language in both Sec. Sec.  17.22(b) and (c) 
and 17.32(b) and (c) to emphasize that our authority extends to 
authorizing take that would otherwise be prohibited under section 9 of 
the ESA, rather than to authorize the applicant's proposed conservation 
and ongoing land management activities or the otherwise lawful 
activities that may result in take of a covered species. In other 
words, the issuance of enhancement of survival or incidental take 
permits does not authorize the covered activities themselves; rather, 
it authorizes only the take of covered species resulting from those 
activities. This clarification is specified in Sec. Sec.  17.22(b)(1) 
and 17.32(b)(1) for regulations related to section 10(a)(1)(B) permits 
and at Sec. Sec.  17.22(c)(1) and 17.32(c)(1) for regulations related 
to section 10(a)(1)(A) permits. We further clarify what constitutes a 
complete application for enhancement of survival and incidental take 
permits and that the Service will process an application when we have 
determined it to be complete.
    With respect to ESA section 10(a)(1)(A), the regulatory changes in 
this final rule combine the SHA and CCAA into one type of conservation 
agreement, called a conservation benefit agreement. We use the term 
``conservation benefit agreement'' or ``conservation agreement'' to 
describe the supporting document required for an enhancement of 
survival permit. This rule simplifies the process for new conservation 
agreements developed in support of enhancement of survival permit 
applications. This rule also establishes that applicants for an 
enhancement of survival permit have the option to return the property 
to baseline conditions. We define ``baseline condition'' to mean the 
population estimates and distribution or habitat characteristics across 
the enrolled property that currently sustain seasonal or permanent use 
by the covered species at the time a conservation agreement is executed 
by the Service and the property owner or by a programmatic permit 
holder and the property owner. Allowing applicants to choose whether to 
return to baseline condition provides more flexibility in the agreement 
and may increase participation. In addition, we clarify that the 
Service may issue enhancement of survival permits that authorize both 
incidental and purposeful take that may result from implementing 
beneficial actions under the conservation agreement, such as 
reintroducing a species to a covered property or capturing and 
relocating a covered species that has dispersed to an adjacent property 
not subject to the

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agreement. After the effective date of this final rule, the Service 
will no longer implement the SHA and CCAA policies.
    With respect to ESA section 10(a)(1)(B), the regulatory changes in 
this final rule incorporate aspects of the five-point policy for 
incidental take permits and guidance from the 2016 Habitat Conservation 
Planning Handbook to reduce confusion and streamline the permitting 
process. Clarifications include a description of the requirements for a 
complete incidental take permit application and revisions to the 
corresponding incidental take permit issuance criteria. We use the term 
``habitat conservation plan'' or ``conservation plan'' to describe the 
supporting document required for an incidental take permit.
    Nothing in these revisions to the regulations is intended to 
require that any previous permits issued under ESA section 10(a)(1)(A) 
or (B) be reevaluated when this rule is effective. For applications in 
process and published in the Federal Register prior to the effective 
date of this rule, applicants will not be required to meet the new 
regulatory requirements. However, applications for new permits, 
renewals, or amendments received after the date specified above in 
DATES are subject to the revisions in this final rule.

This Rulemaking Action

    Part 13 of title 50 of the Code of Federal Regulations sets forth 
general permitting regulations that apply to all permits issued by the 
Service. This rule amends 50 CFR part 13 to address the specific 
revisions in 50 CFR 17.22 and 17.32 and clarifies how the Service 
administers permits under Sec. Sec.  17.22 and 17.32. This final rule 
rescinds Sec. Sec.  17.22(d) and 17.32(d); the references in part 13 to 
those paragraphs are removed and modified to reference the remaining 
paragraphs (i.e., references to Sec.  17.22(b) through (d) are changed 
to Sec.  17.22(b) and (c), and references to Sec.  17.32(b) through (d) 
are changed to Sec.  17.32(b) and (c)).

Clarification of ESA Section 10(a)(1)(A) and (B)--Purpose

    Section 10(a)(1)(A) of the ESA authorizes the issuance of permits, 
under certain terms and conditions, for any act otherwise prohibited by 
section 9 for scientific purposes or to enhance the propagation or 
survival of the affected species. In 1999, the Service further 
clarified in Sec. Sec.  17.22(c) and (d) and 17.32(c) and (d) and the 
SHA and CCAA policies that conservation actions to enhance the survival 
of affected species would be authorized under ESA section 10(a)(1)(A) 
enhancement of survival permits. The permit is intended to incentivize 
voluntary conservation by authorizing take of covered species that may 
result from implementing the approved conservation agreement (formerly 
SHA or CCAA) and providing assurances that the Service will not in the 
future require an increased commitment or impose additional 
restrictions on the permittee's current management and use of land, 
water, or financial resources. As a result, a property owner may 
continue ongoing activities and implement beneficial conservation 
measures without concern that their activities may be curtailed by 
increasing populations or distribution of a listed species or a species 
that may become listed in the future. Therefore, property owners 
managing or improving habitat that could be used by a species that is 
listed or could be listed, or establishing new populations of such 
species, have an incentive to continue their activities without fear of 
being subjected to increased regulatory burdens in the future. In 
general, take associated with working lands (e.g., agriculture and 
silviculture) that are managed in a sustainable fashion to improve 
conditions for listed and at-risk species, may be appropriate under 
this authority depending upon the proposed covered activities.
    The authority granted under ESA section 10(a)(1)(B) allows the 
Service to issue permits to authorize take that would otherwise be 
prohibited by section 9(a)(1)(B), provided the taking is incidental to, 
and not the purpose of, carrying out an otherwise lawful activity. 
Under section 10(a)(1)(B), the impacts of the take associated with the 
otherwise lawful activities must be minimized and mitigated to the 
maximum extent practicable, i.e., the nature of the associated 
conservation plan is a mitigation plan to minimize and offset the 
adverse impacts to the species that are incidental to otherwise lawful 
activities. The purpose is to provide a means for ESA compliance when 
otherwise lawful activities may result in incidental take of listed 
species. In contrast, under section 10(a)(1)(A), the primary purpose is 
to incentivize voluntary conservation of listed and at-risk species.

Take Authorization for Non-Listed Species Under ESA Section 10(a)(1)(A) 
and (B)--Authorities and Rationale

    The Service currently issues both enhancement of survival and 
incidental take permits that cover take of listed as well as non-listed 
species if they become listed in the future. These permits are issued 
upon the Service's approval of the application, and implementation of 
the conservation measures for the non-listed species begins upon 
issuance of the permit. If a non-listed species becomes listed, the 
take authorization becomes effective upon the date of listing, provided 
that the permittee is in full compliance with the enhancement of 
survival or incidental take permit. This approach is supported by the 
House of Representatives Report on the Endangered Species Act 
Amendments of 1982, which reflects that Congress contemplated that non-
listed species could be covered in conservation plans. H.R. Rep No. 97-
835 (Sept. 17, 1982), at 30 (``Although the conservation plan is keyed 
to the permit provisions of the Act which only apply to listed species, 
the Committee intends that conservation plans may address both listed 
and unlisted species.'') (emphasis added).
    On June 17, 1999, the Service published the CCAA Policy (64 FR 
32726) and implementing regulations at 50 CFR 17.22(d) and 17.32(d) (64 
FR 32706) under ESA section 10(a)(1)(A) for issuing enhancement of 
survival permits for non-listed species. The Service further revised 
this policy and the regulations in 2016 (81 FR 95053 and 95164; 
December 27, 2016). Since the initial policy and regulations were 
published, the Service has issued 69 enhancement of survival permits 
for non-listed species in association with a CCAA; 62 of these continue 
to be implemented.
    Clarifying in the regulations that we can issue permits that 
address only non-listed species under ESA section 10(a)(1)(B) is 
consistent with congressional intent to provide long-term regulatory 
assurances and builds on the success demonstrated by the CCAA program. 
Recognizing our ability to authorize take of non-listed species under 
section 10(a)(1)(B) if they become listed under the ESA, alone or 
combined with listed species, will help to ensure that take is 
authorized under the appropriate permit authority depending upon 
whether it is associated with beneficial conservation actions or 
incidental to otherwise lawful activities. This clarification reduces 
confusion and eliminates debate regarding the appropriate permit 
authority by which take should be authorized, thereby allowing the 
planning efforts to be focused on the permitting mechanism that is 
applicable to the project purpose. We acknowledge that the 2016 Habitat 
Conservation Planning Handbook reflects current policy, stating that 
applicants must include at least one ESA-listed species in a 
conservation plan. We plan to update the handbook accordingly to remove 
this requirement.

[[Page 26073]]

Clarifications

Service Authority Extends To Authorizing Take, Not Authorizing the 
Activities

    Existing language in Sec.  17.22(b)(1) and (c)(1) and Sec.  
17.32(b)(1) and (c)(1) refers to authorizing activities that are 
prohibited. The ESA prohibits take of listed species, not the 
activities that cause take. Therefore, in this final rule we clarify 
that, under these authorities, the Service authorizes take and not the 
underlying activities themselves. This change will reduce confusion 
among applicants and the interested members of the public who review 
and provide comments on permit applications.

Expediting the Development of Conservation Agreements and Conservation 
Plans

    One of the common concerns expressed by applicants for permits 
under section 10(a)(1)(A) or (B) is the amount of time and resource 
investment it takes to develop the necessary documents to support the 
applications. The application process for an enhancement of survival 
permit or incidental take permit is divided into three phases: (1) 
preapplication (project proponent or property owner decides whether to 
apply for a permit); (2) conservation agreement or plan development and 
submission of a complete application to the Service; and (3) 
application processing (the Service processes the complete application 
and makes a permit decision).
    While the Service has successfully implemented measures to ensure 
the efficient processing of permit applications once they are deemed 
complete, we have not been as successful with expediting the 
preapplication and conservation agreement or plan development phases, 
despite the updated guidance provided respectively in the 2016 Habitat 
Conservation Planning Handbook and current SHA and CCAA regulations, 
policies, and guidance. This outcome may be due to several factors, 
such as the size and complexity of the proposed project; number of 
species for which take is sought; and, in some cases, challenges to the 
interpretation of our regulations, policies, and guidance. Resolving 
issues that arise during development of the conservation agreement or 
plan often requires the expenditure of a significant amount of time and 
resources by both the applicant and the Service. This situation can 
result in delays to the applicant's project implementation and limit 
the Service's ability to provide timely assistance to other applicants.
    To provide clarity, reduce confusion, and save time, both for 
applicants and the Service, this final rule clarifies the current 
regulations and revises the requirements for permit applications in 
Sec.  17.22(b)(1) and (c)(1) and Sec.  17.32(b)(1) and (c)(1) by 
codifying portions of the 2016 Habitat Conservation Planning Handbook, 
five-point policy, SHA policy, and CCAA policy, as applicable. These 
clarifications address the requirements that an applicant must meet for 
the Service to: (1) determine that an application is complete, (2) 
publish the receipt of a complete application, (3) begin processing the 
application, and (4) make a permit decision consistent with section 10 
of the ESA.
    This final rule refines the incidental take permit issuance 
criteria under Sec.  17.22(b)(2) and Sec.  17.32(b)(2) for plans 
permitted under ESA section 10(a)(1)(B) to align with the statute, 
existing policy, and practice. These revisions, along with the revised 
requirements for a complete application, will lead to more efficient 
permit application processing and decision-making and provide a better 
record supporting our permit decision. The issuance criteria for 
conservation agreements permitted under ESA section 10(a)(1)(A) will 
remain unchanged, although we clarify the meaning of ``net conservation 
benefit'' in the definitions section at Sec.  17.3. The revisions in 
this final rule related to issuance criteria in parts 13 and 17 are 
limited to enhancement of survival and incidental take permits issued 
under Sec. Sec.  17.22 and 17.32, excluding Sec. Sec.  17.22(a) and 
17.32(a), and do not affect other permits issued under the ESA, such as 
import or export permits, or permits issued under other statutes.

Permit Renewal and Amendment Processes

    The regulatory changes in this final rule clarify that permit 
renewals and amendments, or a combination thereof, are subject to the 
current laws and regulations. The application must be evaluated under 
current policies and guidance in place at the time of the decision on 
the renewal or amendment. For amendments to enhancement of survival or 
incidental take permits, the scope of the Federal decision extends only 
to the requested amendment, not to the previously approved permit or 
unchanged portions of the conservation agreement or plan. The terms of 
the original permit, including the take authorization and assurances, 
remain in effect. The proposed amendment is the only change that is 
considered. Providing these clarifications will reduce confusion and 
reassure permittees applying for renewals and amendments that the 
Service will not reconsider all provisions of their existing permits 
and conservation agreements or plans, thereby expediting development of 
a complete application and processing of that application.

Changes From the Proposed Rule

    Based on comments we received on the proposed rule (88 FR 8380, 
February 9, 2023), and to provide clarifications, we include the 
changes described below to the proposed regulations. Other than these 
revisions, we are finalizing the rule as proposed:
    1. In the preamble to this final rule and in 50 CFR part 13, we 
made editorial corrections to clarify that this rule pertains only to 
ESA section 10(a) permits issued under 50 CFR 17.22 and 17.32.
    2. In the preamble, we made edits to further clarify and address 
confusion regarding the appropriate provision of ESA section 10(a) 
under which the Service will authorize take.
    3. In Sec.  17.3, we made the following changes:
    a. Added ``across'' to the definition of ``baseline condition'' to 
reflect that we evaluate the baseline for the entire area to be 
enrolled in the agreement. We also addressed situations in which the 
species and habitat are already adequately managed to the benefit of 
the species and explained how the landowner can achieve a net 
conservation benefit.
    b. Revised the definition of ``changed circumstances'' to add 
``effects of climate change'' as an example of a changed circumstance.
    c. To reduce confusion, we revised the definition of ``covered 
species'' by substituting the term ``at-risk'' for ``reasonable 
potential to be considered for listing'' and explaining what at-risk 
means in the definition.
    d. Clarified the definition of ``net conservation benefit'' by 
stating the improvements in the condition must be expected to result 
from implementation of the conservation agreement. We also clarified 
that maintenance of good quality habitat and addressing future threats 
under the control of the property owner would qualify as meeting the 
net conservation benefit standard.
    e. Revised the definition of ``property owner'' to reflect that 
owners have ``rights'' to water or other natural resources, not actual 
ownership of those resources and added Tribal laws and regulations 
``sufficient to carry out the proposed activities, subject to 
applicable State and Federal laws and regulations.''

[[Page 26074]]

    4. In Sec. Sec.  17.22(b)(1)(ii) and 17.32(b)(1)(ii), to reduce 
confusion regarding covered species, we removed the phrase ``of the 
individuals to be taken.''
    5. In Sec. Sec.  17.22(b)(1)(viii) and 17.32(b)(1)(viii), for 
consistency with the five-point policy (65 FR 35242, June 1, 2000), we 
clarified that the appropriate scope of the effectiveness and 
compliance monitoring programs for incidental take permits should be 
commensurate with the scope and duration of the operating conservation 
program and proposed project impacts.
    6. In Sec. Sec.  17.22(b)(3) and 17.32(b)(3), we added a reference 
to ``Sec. Sec.  17.22(b)(1)(xi) and 17.32(b)(1)(xi)'' to clarify that 
we have the authority to include additional permit conditions, if 
necessary.
    7. In Sec.  17.22(b)(5)(i)-(iii) and Sec.  17.32(b)(5)(i)-(iii), we 
corrected an oversight that had omitted these sections.
    8. In the regulations at Sec. Sec.  17.22(c)(5) and 17.32(c)(5), we 
corrected a reference that had indicated that assurances extend only to 
neighboring landowners in Sec.  17.22(c)(5)(ii). We corrected this 
reference to Sec.  17.22(c)(5)(i) to indicate that assurances apply to 
all enhancement of survival permittees and participating property 
owners.
    9. For consistency throughout Sec. Sec.  17.22(c) and 17.32(c), 
where we used the term ``enrolled land,'' we replaced it with 
``enrolled property'' where appropriate.

Summary of Comments and Responses

    In our proposed rule to revise the regulations for ESA section 
10(a)(1)(A) and (B) published on February 9, 2023 (88 FR 8380), we 
requested public comments. By the close of the public comment period on 
April 10, 2023, we received 71 public comments on our proposed rule. We 
received comments from various sources, including individual members of 
the public, States, Tribes, industry organizations, corporations, 
permittees, applicants, legal foundations and firms, and environmental 
organizations. In general, we received a wide range of comments, often 
multiple pages, that ranged from full support of the changes to general 
opposition. However, most commenters either expressed support and 
provided recommendations to further improve the regulations or 
expressed opposition to the proposed regulations but included 
suggestions to make the changes acceptable.
    We reviewed all public comments prior to developing this final rule 
but did not incorporate or respond to comments that are not relevant to 
or are beyond the scope of this rulemaking action. Summaries of the 
substantive comments and our responses are provided below. We combined 
similar comments where appropriate. They are organized as comments 
specific to: both conservation benefit agreements and habitat 
conservation plans; conservation benefit agreements; habitat 
conservation plans; and required determinations.

Comments Regarding Conservation Benefit Agreements and Habitat 
Conservation Plans

    Comment 1: Several commenters requested that company affiliates, 
associates, subsidiaries, corporate families, and assigns of an 
applicant be included in the definition of ``applicant'' and be covered 
by incidental take and enhancement of survival permits, and they 
requested that we explain the rationale for exclusion.
    Response: These entities are excluded from the definition of 
``applicant'' because we must be able to specifically identify the 
permittee and determine if the permittee is eligible to hold a permit 
under Sec.  13.21. In addition, if the permit is issued, we must be 
able to specifically identify who is responsible for any permit 
violations that may occur.
    Comment 2: Two commenters requested that we add language to 
recognize that an entity with the power of eminent domain is a proper 
applicant for an incidental take permit even where all or portions of 
the permit area are not owned or controlled by the entity with the 
power of eminent domain at the time the Service processes the permit 
application. In addition, one of the commenters suggested that, where 
the Service has concerns about an applicant's ability to implement a 
habitat conservation plan despite the applicant possessing the power of 
eminent domain, the Service may include a permit condition indicating 
the incidental take permit will not be effective (i.e., will not 
authorize incidental take) unless and until requisite ownership or 
control of the permit area has been obtained by the applicant.
    Response: This comment is outside the scope of the proposed 
regulation revisions, and the requested changes would not further our 
goals of reducing confusion and streamlining the permitting process. 
However, we will consider providing additional guidance on this topic 
in the next update to the Habitat Conservation Planning Handbook.
    Comment 3: Several commenters stated they oppose the rule because 
it judges projects based on their implied purpose rather than their 
conservation outcomes. They further asserted that the subjective 
interpretation of ``primary purpose'' of the agreement is likely to 
make most projects ineligible for conservation agreements, regardless 
of whether the projects would benefit species conservation.
    Response: We considered different ways to articulate how we intend 
to determine under which permit authority to authorize the requested 
take. The purposes of section 10(a)(1)(A) and section 10(a)(1)(B) are 
inherently different. The former is to issue enhancement of survival 
permits that authorize take associated with conservation agreements and 
ongoing land management activities that provide a net conservation 
benefit to the covered species. The latter is to issue permits that 
authorize take that is incidental to, but not the purpose of, carrying 
out otherwise lawful activities where the impacts to the covered 
species must be minimized and mitigated. To determine the appropriate 
permit authority, we intend to look at the nature and purpose of the 
proposed activities and the anticipated outcomes of the take. For an 
enhancement of survival permit, the purpose and anticipated 
conservation outcome of the covered activity must be to provide a 
benefit to the species covered by the permit, i.e., to improve the 
condition of a species, the amount or quality of its habitat, or both. 
Conversely, for an incidental take permit, the purpose and anticipated 
outcome of the covered activity is to carry out otherwise lawful 
activities that are likely to result in incidental take that is harmful 
to the species and requires mitigation (e.g., activities that convert 
habitat to other uses). Thus, using the primary purpose and anticipated 
conservation outcome of the project provides a straightforward method 
for applicants to determine which type of permit to pursue and is 
consistent with Congress's intent in creating the two different types 
of permits.
    It is unclear what the commenter means by ``implied purpose,'' but 
the Service anticipates that applicants will provide sufficient 
information to allow us to evaluate each project's primary purpose and 
intended conservation outcome. We will consider the circumstances on a 
case-by-case basis to decide which permit type is appropriate for the 
project.
    Comment 4: One commenter asserted there were two flaws in the 
proposed distinction between incidental take and enhancement of 
survival permits: (1) the distinction would push more projects into 
incidental take permits, which would have a negative effect on

[[Page 26075]]

endangered species conservation because of the lower conservation 
standard of these permits, and (2) the process for obtaining an 
incidental take permit is inefficient, which would result in delays for 
a larger number of projects if more were pushed to these permits. The 
commenter further asserted that the high price tag of developing 
habitat conservation plans, which on average is greater than $1 
million, would effectively eliminate the incentive for voluntary 
conservation within the private sector.
    Response: There are inherent differences in the conservation 
standards between enhancement of survival permits (requiring a net 
conservation benefit) and incidental take permits (requiring 
minimization and mitigation to the maximum extent practicable). This 
difference is due to the intended purpose of the authorized take under 
each type of permit. However, conservation for listed and non-listed 
species can be achieved through both conservation agreements and 
conservation plans. Providing a clear distinction in the regulations 
under which statutory provision we will authorize take is critical to 
the proper implementation of both voluntary conservation programs. We 
acknowledge that the costs of developing conservation plans can be 
significant, but we do not view that issue as an appropriate basis for 
issuing an enhancement of survival permit for a project that is not 
primarily aimed at conservation and involves incidental take. The 
regulatory revisions are also intended to create efficiencies in the 
negotiation and permitting processes that will benefit applicants for 
both permit types. We also intend to explore additional measures to 
improve the efficiency of the incidental take permitting process, and 
we will consider new policies or updates to the Habitat Conservation 
Planning Handbook to implement such measures.
    Comment 5: One commenter suggested the Service should provide 
additional clarification and explanation regarding the types of 
activities that may be covered by an enhancement of survival permit as 
compared to an incidental take permit.
    Response: While certain types of activities are clearly more 
appropriate for an incidental take permit versus an enhancement of 
survival permit, such as housing developments and new infrastructure 
development, it is not possible to list all the different types of 
activities that could be covered by each permit type. To determine the 
appropriate permit authority, we will consider, on a case-by-case 
basis, the applicant's purpose for seeking a permit and the anticipated 
conservation outcome of the activity. We intend to provide additional 
guidance on this topic in our respective handbooks.
    Comment 6: One commenter stated that the Service goes beyond our 
statutory authority to require project proponents to utilize incidental 
take permits. The commenter stated that, where a project proponent 
seeks to implement voluntary conservation measures (e.g., preserving 
habitat, implementing operational controls, or funding research) for 
non-listed species--species for which the take prohibition does not 
apply--the Service should not dictate the type of conservation 
agreement to use.
    Response: Whether to pursue a permit is voluntary, but once 
applicants make that choice, our responsibility is to determine both 
that applicants are pursuing the appropriate permit and whether an 
application under the appropriate permit authority is complete. With 
the changes we are making to our regulations, the appropriate permit 
(incidental take versus enhancement of survival) does not depend on the 
species an applicant is seeking to include, whether a listed or non-
listed species. Rather, it depends on the primary purpose and 
anticipated conservation outcome of the project and the proposed 
covered activities for which take authorization is requested.
    Comment 7: Some commenters stated that it is broadly beneficial to 
provide more clarity about the application of enhancement of survival 
and incidental take permits but requested that we clarify how the 
primary purpose of activities will be determined and ensure that the 
standard does not inadvertently limit the ability of agricultural 
producers to seek enhancement of survival permits for their activities.
    Response: The type of applicant does not dictate which type of 
permit is appropriate for the activity. We will consider the project 
information provided by potential applicants and work with them on a 
case-by-case basis to determine their primary purpose for requesting a 
permit, the anticipated conservation outcomes of their project, the 
activities for which they are seeking take coverage, and the associated 
plan or agreement. This clarification does not restrict or limit 
eligible applicants for enhancement of survival permits. In general, 
take associated with working agricultural lands that are managed in a 
sustainable fashion to improve conditions for listed and at-risk 
species may be appropriate for permitting through a conservation 
agreement, depending upon the proposed covered activities.
    Comment 8: One commenter requested that we clarify that energy 
project proponents continue to have the flexibility to choose between 
either an enhancement of survival or incidental take permit depending 
on the primary purpose of the covered activity.
    Response: Energy project proponents, as well as other project 
applicants, should seek assistance from the Service early in the 
preapplication and project planning phase to ensure the appropriate 
permit is pursued. When deciding under which permit authority to 
authorize take, we consider the primary purpose of the project and 
anticipated conservation outcomes, regardless of the identity of the 
applicant.
    Comment 9: One commenter asserted that for some renewable energy 
projects an enhancement of survival permit may provide a regulatory 
mechanism to seek coverage while the applicant is researching, 
developing, or testing a novel mitigation technology or technique. The 
commenter further stated that the last 20 years of such advancements in 
renewable energy show promise, but that mitigation technology remains a 
nascent industry, and the Service is uniquely situated to provide a 
regulatory incentive for renewable energy companies to further invest 
in such technologies and techniques. For these reasons, the commenter 
recommends that we ensure sufficient flexibility in our regulations so 
that renewable energy development activities are not prohibited under 
enhancement of survival permits, especially related to listed species 
and the investment in minimization research and development. Some 
commenters recommended that the Service allow research as a mitigation 
option, while others objected to the recommendation, stating that it 
would authorize take without properly mitigating the impacts of the 
taking. However, commenters stated that if research is allowed as 
mitigation, the regulations should clarify that both the research and 
the informed conservation must be requirements of the associated 
incidental take permit and the mitigation must offset the impacts of 
the taking, not just inform future conservation.
    Response: As stated in our mitigation policy, research that is 
directly linked to reducing threats or that provides a quantifiable 
benefit to the species may be appropriate when: (a) the major threat to 
a resource is something other than habitat loss, (b) the Service can 
reasonably expect the outcome of

[[Page 26076]]

research or education to offset the impacts, or (c) the proponent 
commits to using the results of the research to mitigate impacts. 
Research should be included as part of a mitigation package only when 
other reasonable options for mitigation have been fully exhausted. In 
general, energy development projects do not have a primary purpose of 
habitat and species conservation and should seek incidental take 
permits.
    Comment 10: Several commenters urged us to clarify and explain what 
type of activities may be covered by an enhancement of survival permit 
as opposed to an incidental take permit. The commenters further stated 
that, because we intend to combine SHAs and CCAAs into a single type of 
conservation agreement to support the issuance of an enhancement of 
survival permit, we should also clarify the full scope of activities, 
formerly covered by a CCAA, that would be eligible for inclusion in a 
conservation agreement. One commenter also stated that it is unclear 
whether all the activities currently covered by a CCAA and associated 
permit would still be eligible for inclusion in a conservation 
agreement.
    Response: Because of the extent of variability among projects, it 
is not possible for us to categorize all the types of activities that 
might be covered by an enhancement of survival permit as opposed to an 
incidental take permit. With the changes we are making to these 
regulations, it is possible that some activities affecting non-listed 
species that are included in existing CCAAs may in the future be found 
more appropriate for authorization though an incidental take permit. 
But, as previously stated, we would consider the purpose for applying 
for a permit, the anticipated conservation outcome, and covered 
activities to determine which permit is appropriate.
    Comment 11: A commenter asserted that applicants seeking an 
enhancement of survival permit may propose a variety of activities for 
incidental take authorization. They stated that the ``primary purpose'' 
of the conservation agreement may not be solely to ``benefit the 
covered species'' but could include a variety of other purposes 
depending on the needs and objectives of the applicant. The commenter 
suggested that instead of requiring a ``primary purpose'', the 
objective of enhancement of survival permits should be ``providing a 
benefit to the covered species'' irrespective of the primary purpose of 
the conservation agreement. Another commenter suggested adding the 
language shown here in brackets: Enhancement of survival permits 
authorize take of covered species, above the baseline condition, when 
the primary purpose of the associated conservation agreement is to 
implement beneficial actions that address threats to the covered 
species, establish new wild populations, or otherwise benefit the 
covered species; [or where the land or water management actions covered 
by the conservation agreement benefit the species even though the 
primary purpose of those actions may not be conservation].
    Response: Because both conservation agreements and plans may 
provide a benefit to the covered species, providing such a benefit is 
not a sufficient basis to distinguish between them. Rather, it is 
appropriate to consider the primary purpose and the anticipated 
conservation outcomes in the context of conservation agreements to 
further the statutory purpose of section 10(a)(1)(A), enhancing the 
propagation or survival of the species. We have clarified in the 
preamble that the conservation actions in the associated conservation 
agreement or plan will be used to determine the appropriate permitting 
authority. We have also clarified that take from both proposed 
conservation activities and ongoing land management can be authorized 
under enhancement of survival permits. Additionally, as discussed in 
response to comment 4, both conservation agreements and plans can 
provide conservation benefits to listed and non-listed species even 
though the standards under each authority are different.
    Comment 12: One commenter believes that conservation agreements 
will primarily apply to activities designed to enhance the survival of 
the species and not, as some past CCAAs have allowed, to provide take 
protections for economic activities that could incidentally take the 
species. The commenter indicated that we should clarify this issue in 
the regulations and on the corresponding application forms.
    Response: Clarifying in the regulations that a conservation plan 
can be developed without inclusion of a listed species will allow 
incidental take permits to be pursued where previously enhancement of 
survival permits were deemed the only option because of the former 
policy that incidental take permits applications must include at least 
one listed species. Basing the distinction between incidental take and 
enhancement of survival permits on the primary project purpose and 
anticipated conservation outcome will ensure that take is authorized 
under the appropriate authority. We will include additional guidance in 
our handbooks to further address this issue.
    Comment 13: Several commenters asserted that renewable energy 
projects serve a conservation purpose and are vital to addressing 
climate change, which is causing long-term impacts on species. The 
commenters stated that renewable energy projects may have short-term or 
immediate impacts on species, but such impacts are likely offset by the 
long-term benefits that these projects collectively create. They 
further stated that, where opportunities exist to recognize these 
benefits, expediting permits for projects that address climate change 
will provide a greater incentive for implementing renewable energy 
projects.
    Response: We acknowledge that many renewable energy projects will 
reduce greenhouse gas emissions and the otherwise-anticipated harmful 
effects of climate change on species and the environment. The 
regulatory changes in this rule are intended to help streamline the 
regulatory process for all applicants, including proponents of 
renewable energy projects, and decrease the time for permit approval 
and issuance. When reviewing a plan or agreement, we consider its 
duration to determine if the issuance criteria and standards can be met 
during that timeframe.
    Comment 14: One commenter suggested that the issuance criteria (50 
CFR 17.22(c)(1)) be amended to expressly require that the purpose of 
the proposed conservation agreement must be to provide a conservation 
benefit for the species through enhancing its propagation or survival.
    Response: It is not necessary to add this language to Sec.  
17.22(c)(1) because the issuance criteria at Sec. Sec.  17.22(c)(2)(ii) 
and 17.32(c)(2)(ii) already require that ``the implementation of the 
terms of the conservation agreement is reasonably expected to provide a 
net conservation benefit.''
    Comment 15: Several commenters were concerned that the proposed 
rule appeared no longer to apply ``no surprises'' assurances to 
enhancement of survival permits according to current practice. They 
stated that we should retain the existing ``no surprises'' assurance 
regulations for conservation agreements and plans and apply them to 
incidental take and enhancement of survival permits. The commenters 
asserted that, while the Service states that the well-established ``no 
surprises'' assurances will continue to apply, the proposed regulatory 
revisions suggest otherwise. Several commenters pointed out that the 
proposal appears to inadvertently omit the existing language on ``no 
surprises'' assurance in Sec.  17.22(b)(5) and (c)(5), as well as in 
Sec.  17.32(b)(5) and (c)(5). The commenters

[[Page 26077]]

stated that, assuming that this was an inadvertent omission, we should 
correct the error when finalizing the rule by reinserting subparagraphs 
(i), (ii), and (iii) in Sec. Sec.  17.22(b)(5) and 17.32(b)(5).
    Response: As stated in the proposal, we intend to retain ``no 
surprises'' assurances for both permit types. In this final rule, for 
enhancement of survival permits we revised Sec.  17.22(c)(5) and Sec.  
17.32(c)(5) so that the assurances apply to Sec.  17.22(c)(5) and Sec.  
17.32(c)(5) in their entirety, not just to each paragraph (c)(5)(ii). 
Regarding incidental take permits, the proposed regulatory revisions do 
not alter the protections provided by the ``no surprises'' rule, but 
there was an inadvertent omission in Sec. Sec.  17.22(b)(5) and 
17.32(b)(5), which we corrected.
    Comment 16: Several commenters stated that the assurances 
referenced in new Sec. Sec.  17.22(c)(5) and 17.32(c)(5) should apply 
to all sections of Sec.  17.22(c)(5), and not just paragraph 
(c)(5)(ii). Another commenter stated that the proposed definition of 
``changed circumstances'' appears to limit the application of the 
current no surprises assurances to conservation plans and incidental 
take permits, thus leaving out conservation agreements and enhancement 
of survival permits.
    Response: We revised the references in Sec. Sec.  17.22(c)(5) and 
17.32(c)(5), so that the assurances apply not just to neighboring 
property owners, but to all property owners who participate in a 
conservation agreement. Additionally, we did not intend to limit the no 
surprises assurances to conservation plans. Although we deleted the 
requirement for a changed circumstances section in a conservation 
agreement, these concepts are incorporated into the monitoring and 
adaptive management portions of the agreement.
    Comment 17: Several commenters supported the proposed clarification 
that we authorize the incidental take and not the underlying otherwise 
lawful activity and land use. One commenter stated that, in the 
introductory language of 50 CFR 17.22, Sec.  17.22(a)(1), and all other 
places in Sec.  Sec.  17.22 and 17.32 where a ``permit for an 
activity'' is described, the language should be revised to ``permit for 
take associated with a covered activity.'' The commenter also stated 
that all references to an ``activity'' may need to be changed to a 
``covered activity.''
    Response: We did not propose any changes to Sec. Sec.  17.22(a) or 
17.32(a). Rather, the proposed revisions were limited to Sec. Sec.  
17.22(b) and (c) and 17.32(b) and (c). Therefore, we are not making any 
changes to Sec. Sec.  17.22(a) or 17.32(a) in this final rule.
    Comment 18: One commenter asserted that, if a permittee proceeds 
with the activities that would otherwise be unlawful under the ESA, 
then the Service is in effect authorizing those activities by issuing 
the permit and the Service's scope must analyze the impacts of the 
covered activities under the National Environmental Policy Act (NEPA).
    Response: As we explain in the regulatory language, the permit does 
not authorize the covered activities themselves, and the Service does 
not have the authority to approve the activities. Rather, the permit 
authorizes take that may be associated with the activities and which 
would otherwise be prohibited under section 9 of the ESA. Therefore, 
the Federal action is the decision whether to issue a permit that 
authorizes take, and the appropriate scope of our analysis under NEPA 
includes the direct and indirect effects of the permitting decision 
(i.e., authorizing take of the covered species) on the human 
environment.
    Comment 19: One commenter stated that the proposed regulations 
indicate that the scope of authorization in section 10(a)(1) of the ESA 
is limited to the take of covered species, which should mean that the 
National Historic Preservation Act (NHPA) is not triggered, especially 
because the permits are for non-Federal actions. The commenter 
asserted, however, that the Service likely does not interpret the 
proposed text this way, as doing so could cause confusion. The 
commenter indicated that if we expect incidental take and enhancement 
of survival permits to be an NHPA trigger, we should not say the scope 
of authorization is limited to species take.
    Response: Because the action of issuing a permit is a Federal 
undertaking as defined in 36 CFR 800.16(y), we are subject to section 
106 compliance under the National Historic Preservation Act. Clarifying 
that the scope of our permit authorizes the take, not the activities 
causing the take, ensures that the area of potential effect is 
appropriately determined.
    Comment 20: One commenter stated that the regulations should limit 
section 10 enhancement of survival permits to activities that actually 
enhance the survival or propagation of a species. The commenter shared 
an example where capturing the animal is necessary for its own benefit 
and protection and to assist its conservation in the wild. The 
commenter further asserted that purposeful take that is not expected to 
directly benefit the animal being taken should not be allowed under the 
regulations because that activity does not enhance the survival or 
propagation of the species.
    Response: Any purposeful take that is authorized through an 
enhancement of survival permit must directly benefit the covered 
species and be necessary to provide for its conservation through 
implementation of the conservation agreement. The commenter's example 
is a situation where it might be appropriate for the Service to 
authorize purposeful take that is necessary to implement a conservation 
agreement.
    Comment 21: One commenter asserted that the Service needs a means 
to track take and that we should require a standardized self-reporting 
duty that all parties can understand and meaningfully comply with. 
Another commenter suggested we develop procedures for monitoring 
compliance with incidental take permits and for tracking cumulative 
take to ensure excessive take allowances are not granted.
    Response: For all incidental take and enhancement of survival 
permits, we require that permittees report take that occurs during 
their annual reporting period. We are developing mechanisms to collect 
this information when permittees submit their annual reports through 
the online ePermits system, which we will incorporate into our internal 
project tracking system--ECOSphere--where the data will be available to 
all Service biologists for use in conservation decision-making.
    Comment 22: One commenter stated that the required conservation 
agreement elements do not include a section on take or assurances 
provided to property owners and the regulation does not clearly 
describe how these elements are incorporated into the conservation 
agreement and permitting process for an enhancement of survival permit. 
The commenter also asserted that we did not address the duration for 
conservation agreements and requested that we define these elements and 
incorporate them into the agreement or permit.
    Response: The assurances for conservation agreements are included 
in 50 CFR 17.22(c)(5) and 17.32(c)(5). In addition, duration of 
agreements is included under Sec. Sec.  17.22(c)(4) and 17.32(c)(4). 
Both assurances and the agreement duration are elements that are 
included in every conservation agreement.
    Comment 23: One commenter stated that the proposed changes 
regarding the appropriate use of monitoring data in the renewal or 
amendment process are vague. The commenter asserted that,

[[Page 26078]]

while the proposed regulation emphasizes using monitoring data to 
evaluate the effectiveness of mitigation, in practice this has often 
just involved monitoring a conservation crediting site. The commenter 
requested, given the interest in accounting for landscape-scale effects 
and the recent Presidential memo on ecological connectivity, that we 
include language to encourage monitoring habitat occupancy near the 
site of habitat loss whenever possible, which could include using 
environmental DNA techniques. The commenter asserted that an 
enhancement of survival permit for the neighboring property could be 
used to justify monitoring and management of habitat to understand if a 
landscape-effect due to a nearby take has occurred.
    Response: We agree that information on the species and habitat 
located near a plan or agreement area would be useful in an overall 
assessment of the status of the species, but we cannot require that a 
permittee monitor areas beyond those covered by a permit. In addition, 
using the neighboring property owner provisions of an enhancement of 
survival permit supported by a conservation agreement for this purpose 
is not appropriate as neighboring property owners are not required to 
monitor their property for the species.
    Comment 24: One commenter stated that the Service's regulations 
should strengthen the monitoring obligations before and after permits 
are issued to ensure compliance with the ESA. The commenter further 
asserted that the regulations should require the Service to assess 
baseline conditions, including both available habitat and estimated 
population and distribution, and independently monitor the condition of 
the covered species and habitat throughout the duration of the permit.
    Response: For both conservation plans and agreements, we require 
that baseline conditions for the covered species be determined before 
we approve the plan or agreement and issue the associated permit. In 
addition, monitoring over the duration of the conservation plan or 
agreement is required to determine if the mitigation or conservation 
measures have been implemented and whether they are effective 
(biological monitoring). Depending on the species, the baseline 
determination and monitoring may include surveys for individuals to 
estimate population and distribution on the enrolled property or may 
only include inventorying the habitat conditions. Some species are 
difficult to survey, and habitat may be used as a surrogate if 
appropriate.
    Comment 25: One commenter recommended as a condition of permit 
issuance that we expressly require all enhancement of survival and 
incidental take permittees to carry out adequate monitoring 
commensurate with the scope of their activities. The commenter 
suggested that, in some cases, for small, short-term habitat 
conservation plans (e.g., covering a residential home on a small 
property), this monitoring might be minimal; however, in all cases the 
regulations should require reporting actual take of protected species. 
Conversely, another commenter recommended that we not impose burdensome 
monitoring requirements as conditions of enhancement of survival 
permits, because such requirements are costly, deter participation, and 
ultimately do not increase species conservation.
    Response: Both permit types have compliance and effectiveness 
monitoring requirements. These requirements are based on the covered 
species and the goals and objectives of the agreements and plans. The 
type and amount of required monitoring is commensurate with the 
activities covered and does not go beyond what is needed to determine 
whether: the plan or agreement is being properly implemented, the 
biological goals for the covered species are being met, and take 
authorization has not been exceeded.
    Comment 26: One commenter noted that habitat conservation plan 
requirements include a monitoring component to measure the 
effectiveness and progress of the conservation plan in achieving its 
goals (to be codified at 50 CFR 17.22(b)(1)(viii)). The commenter 
noted, however, that the Service has not included language on the 
appropriate scope of any compliance monitoring for a habitat 
conservation plan. The commenter asserted that the original five-point 
policy states, ``Monitoring measures should be commensurate with the 
scope and duration of the project and the biological significance of 
its effects.'' The commenter stated that including this language into 
regulations will ensure that any monitoring requirements are 
proportionate to the project impacts. The commenter further explained 
that this additional language will ensure that monitoring programs 
under habitat conservation plans will be commensurate with the duration 
of the habitat conservation plan and impacts of the take.
    Response: In the final rule, we added ``The scope of the monitoring 
program should be commensurate with the scope and duration of the 
conservation program and the project impacts.''
    Comment 27: Several commenters stated that, for both quantification 
of take and monitoring purposes, the Service should continue to allow 
applicants to rely on surrogates (a similarly affected species of 
habitat or ecological conditions) and make explicit in the final rule 
that surrogate species are acceptable when biologically meaningful 
results are attainable by such a method.
    Response: We currently allow the use of surrogates for monitoring 
purposes, depending on the species, and will continue to do so. While 
we are not adding language to the regulations, we discuss the 
appropriate use of surrogates in our handbooks.
    Comment 28: One commenter stated that we should include more 
explicit integration of climate change considerations and recommended 
that we require a climate strategy section either within the goals and 
objectives or its own standalone section within any agreement or 
habitat conservation plan, with explicit links to how the impacts of 
climate change can be addressed through adaptive management of the 
agreement in question. The commenter asserted that a standalone section 
would allow for applicants to properly account for and integrate 
climate resiliency in their plans and agreements at the start. Another 
commenter recommended that we revise the proposed definition of 
``changed circumstances'' to include climate change within the examples 
listed. Another commenter suggested that the adaptive management 
program in the conservation plan should consider mitigation focused on 
addressing climate impacts or other stressors affecting listed species.
    Response: While it is important to consider the current and 
possible future effects of climate change on a species, we are not 
revising the regulations to include a requirement for a standalone 
climate change section in a plan or agreement. We provide guidance on 
incorporating climate change into plans and agreements in our 
handbooks. We note that the conservation strategy and adaptive 
management program in the conservation plan can include measures to 
address the effects of climate change to ensure the plan meets its 
biological goals and objectives.
    Comment 29: Two commenters stated that the Service should have the 
authority and discretion to consider and provide mitigation and 
conservation credit for prior and continuing conservation measures. The 
commenters asserted that the regulations should clarify that the 
Service can consider and provide mitigation and conservation credit 
when a plan or agreement is

[[Page 26079]]

amended to add a covered species, or when a new plan or agreement 
incorporates and builds on prior and continuing conservation measures 
used in existing plans and agreements for conservation of a newly 
covered species on the same covered land.
    Response: For enhancement of survival permits, when we evaluate the 
baseline in the conservation agreement, we take into consideration the 
current condition of the species and its habitat, either of which could 
be attributed to prior or ongoing conservation measures. We also review 
ongoing conservation when selecting the conservation measures that a 
property owner will implement to determine if they will need to adopt 
new conservation measures or amend current measures to achieve the net 
conservation benefit. Likewise, if an enhancement of survival permit is 
amended to include a new species, we will determine if any additional 
conservation measures are needed to provide the net conservation 
benefit for the new species.
    For both enhancement of survival and incidental take permits, if a 
permittee seeks an amendment to add a new species to the permit, we 
must establish the environmental baseline for that species at the time 
of the requested amendment through our intra-Service section 7 
consultation. The prior and ongoing actions, including conservation 
gained through implementation of the existing conservation plan or 
agreement, would be accounted for in the baseline. The baseline will 
also include the past and present impacts of all Federal, State, or 
other private actions in the plan or agreement area. Therefore, 
previous and on-going beneficial actions are considered when making our 
enhancement of survival and incidental take permit issuance decisions.
    Comment 30: Several commenters were concerned about the definition 
of ``covered species,'' particularly the meaning of ``reasonable 
potential to be considered for listing.'' They asserted that we did not 
provide any information on what ``reasonable potential'' means or how 
it will be determined, and further asserted that we are creating an 
alternative approach to a listing determination that is outside the 
ESA.
    Response: We revised the definition of ``covered species'' in this 
final rule, removing ``reasonable potential to be considered for 
listing'' and replacing it with the term ``at-risk species,'' which is 
defined.
    Comment 31: Some commenters recommended that the Service provide 
language to ensure State-managed non-listed species are not included in 
the definition of ``covered species'' because that would subject State 
management of these non-listed species to unacceptable levels of 
uncertainty.
    Response: We are not excluding State-managed species from the 
definition of ``covered species.'' We work closely with State agencies 
when developing conservation agreements and plans and will consider any 
concerns expressed by States during that process. Furthermore, it is 
the applicant's decision whether to include species not listed under 
the ESA, rather than later seek an amendment if the species is listed.
    Comment 32: Several commenters stated that, without a listing under 
the ESA, direct and indirect regulation of non-listed species is beyond 
the legal authority of the Service. Several other commenters supported 
our proposal to include only non-listed species as covered species in a 
plan or agreement. They stated that this change may help preclude the 
listing of at-risk species and allow applicants to seek regulatory 
certainty through an incidental take permit well before a species may 
become listed.
    Response: We clarified in the preamble that we have the authority 
to issue incidental take and enhancement of survival permits for non-
listed species. This process provides more options for entities to 
voluntarily be proactive and obtain regulatory certainty, allowing them 
to continue their covered activities without interruption if a species 
becomes listed. The ESA does not prohibit take of non-listed species. 
Therefore, the take authorization through an incidental take or 
enhancement of survival permit will not go into effect until that 
species is listed.
    Comment 33: Several commenters stated that we failed to address the 
most costly and burdensome requirements for incidental take and 
enhancement of survival permits. They asserted that the conservation 
agreement requirements, including (a) detailed information and defined 
outcomes of the conservation measures, (b) measurable biological goals 
and objectives of the conservation measures, (c) the baseline condition 
of the property to be enrolled, (d) the net conservation benefit 
resulting from the conservation measures, (e) detailed monitoring, and 
(f) the ability for the Service to include other unknown requirements 
for issuance, are too onerous and costly.
    Response: The requirements are to ensure that we can make the 
necessary findings for issuance of the permit and approval of the 
associated agreement or plan. The biological goals and objectives must 
be measurable for us to determine that the conservation measures or 
mitigation are achieving their purpose. The monitoring requirements are 
necessary to determine if the conservation measures or mitigation are 
being properly implemented and are achieving the intended result. The 
purpose of a conservation agreement is to provide a net conservation 
benefit to the covered species, and we must have the necessary 
information, such as the baseline condition and monitoring information, 
to be able to make that determination.
    Comment 34: Many commenters requested that the final rule include 
reasonable timeframes for application processing stating that, 
otherwise, the proposed streamlining of the revised regulations will 
not be realized. Several commenters suggested application processing 
and permit decision timeframes comparable to those performed under 
section 7 of the ESA. They further stated that, while the section 10 
durations do not necessarily need to replicate those existing for 
section 7 consultations, communicating expected timeframes for review 
would help to ``generate and share products quickly.'' To realize the 
time and cost savings benefits envisioned, one commenter stated that 
implementation of this rule must be simple and straightforward for both 
non-Federal applicants and Service staff alike.
    Response: We will develop timelines on a project-by-project basis 
based on coordination between the applicant and the Service early in 
the development of the conservation plan or agreement. We recognize an 
applicant's need for transparency and consistency with respect to the 
Service's decision-making timelines and the importance of reliable 
timelines in the overall development of a conservation plan or 
agreement. We reiterate our commitment to timely review of applications 
and permit decision making. We will consider whether to incorporate 
general timeline goals into our handbooks.
    Comment 35: In addition to deadlines for application processing and 
permit decisions, many commenters requested the adoption of deadlines 
for the various stages of plan and agreement negotiation, especially 
for the stage related to the Service's determination on whether an 
application is complete. Other commenters asserted that a lack of 
deadlines causes the process to move too slowly.
    Response: We are committed to timely review of applications and 
permit decision making, given our resources. We will continue to 
evaluate our process for determining whether an application is complete 
and will

[[Page 26080]]

consider developing timelines in our handbooks.
    Comment 36: One commenter suggested that we clarify permit duration 
by adding a reference in the final rulemaking that states, ``including 
time necessary to establish or restore habitat conditions.'' Another 
commenter stated that the duration of permits language does not provide 
applicants, permittees, participants, and enrollees regulatory 
certainty or transparency as to the duration of a permit and stated we 
should incorporate regulatory text that clarifies ``permit durations'' 
to provide regulatory certainty and repropose the rule to provide the 
opportunity for informed comments.
    Response: We find it is unnecessary to add the suggested language 
because the duration of an agreement or plan already incorporates the 
time needed to achieve habitat establishment or restoration as outlined 
in the agreement or plan. Because each plan and agreement is unique, we 
cannot apply a generic timeframe for permits and their associated 
agreement or plan in the regulations. The duration of the permit must 
be sufficient for the permittee to fulfill the commitments of the plan 
or agreement. For instance, the duration of an enhancement of survival 
permit must be long enough to achieve the net conservation benefit, and 
the timeframe for this to occur must be discussed and mutually agreed 
upon during the development of the conservation agreement with the 
property owner.
    Comment 37: Several commenters recommended that we prepare guidance 
documents and templates for the respective permit applications and 
conservation agreements and plans. The commenters stated that these 
documents should be developed in collaboration with stakeholders, 
including landowners, to ensure their usefulness and applicability. 
Another commenter suggested we create a template with boilerplate 
language and an online submission platform.
    Response: In 2016, the National Marine Fisheries Service and the 
U.S. Fish and Wildlife Service jointly finalized the Habitat 
Conservation Planning and Incidental Take Permit Processing Handbook. 
The draft was published in the Federal Register, and the final document 
included revisions based on comments received from the public. We will 
update the handbook after finalizing these regulations. A draft 
handbook for conservation agreements will be developed and published in 
the Federal Register for public comment. While the primary purpose is 
to provide guidance to Service staff, the handbooks will also be 
publicly available for stakeholder use. We will consider templates when 
we develop the handbooks. We have online submission of applications 
through ePermits.
    Comment 38: One commenter asserted that we should provide guidance 
that requires plans to have measurable goals for species recovery in 
terms of both habitat quantity and quality and species population 
numbers.
    Response: For conservation plans, the five-point policy (65 FR 
35242, June 1, 2000) and 2016 Habitat Conservation Planning Handbook 
include guidance on developing appropriate biological goals and 
objectives. We require measurable biological goals and objectives for 
conservation strategies, if appropriate. We also require measurable 
goals for conservation agreements, which are based on the covered 
species. However, it may not be possible to specify measurable goals 
for both habitat and species population numbers. For example, with 
species where monitoring individuals is difficult, we would use habitat 
as a surrogate for population numbers.
    Comment 39: Several commenters asserted that we were adding new 
incidental take permit issuance criteria that would explicitly allow 
the Service to add terms and conditions beyond what an applicant has in 
their habitat conservation plan. The commenters stated that the 
requirements for additional measures usually arise at the end of the 
permitting process when the applicant has completed their conservation 
plan, delaying the issuance of the permit. The commenters further 
stated that the Service should remove or narrow this language and work 
with permittees early in the habitat conservation plan development 
process where additional measures may be appropriate.
    Response: In general, the Service has the authority to require 
permit conditions not included in the conservation plan. Section 
10(a)(2)(B)(v) of the ESA provides the authority to include as permit 
conditions any other measures that are necessary or appropriate for 
purposes of the plan (see section 10(a)(2)(A)(iv)). However, we did not 
add new incidental take permit issuance criteria through the proposed 
regulatory revisions. Rather, we incorporated the language from former 
Sec. Sec.  17.22(b)(2)(ii) and 17.32(b)(2)(ii) into Sec. Sec.  
17.22(b)(2)(i) and 17.32 (b)(2)(i), which may have caused confusion. 
Additionally, while we have the statutory authority to require 
additional measures, we rarely exercise this authority without the 
consent of the applicant.
    Comment 40: Several commenters supported our inclusion of a 
definition for ``programmatic plan'' or ``agreement'' in the 
regulations. Another commenter stated the Service should expand and 
further the programmatic approach to section 10 permits and 
conservation agreements and plans to address and mitigate the 
significant time and cost burdens for individual landowners.
    Response: We utilize programmatic agreements where appropriate and 
where we have an entity that is willing to be the permit holder for the 
agreement. Because this entity must have the resources to implement the 
permit and associated programmatic plan or agreement, the number of 
programmatic agreements and plans that have been finalized has been 
limited.
    Comment 41: One commenter stated that, although we included a 
definition for programmatic permitting, the proposed rule did not 
provide additional explanation as to the procedures that would promote 
and incentivize the use of programmatic permits. Another commenter 
suggested that we should propose regulatory text explaining how 
programmatic habitat conservation plans and incidental take permit 
processes work.
    Response: Given the complexity and variability of programmatic 
plans and agreements, it is not feasible to include the suggested 
explanation in the regulations. Rather, the appropriate place to 
explain the development process, advantages, and other details 
regarding programmatic plans and agreements is in our handbooks.
    Comment 42: Several commenters asserted that the regulations should 
include a condition that the Service must involve State wildlife 
agencies in the development and approval of conservation agreements and 
conservation plans within their respective States and concurrence on 
species to be covered under those agreements and plans. One commenter 
requested that we consult with State agencies when establishing 
baseline conditions for enhancement of survival permittees.
    Response: While we decline to include a requirement in the 
regulations that we must involve State wildlife agencies in the 
development and approval of conservation agreements and plans, we 
encourage applicants to work with State wildlife agencies during 
development of agreements and plans. In addition, we often involve 
States in developing conservation agreements, particularly in 
discussions to determine baseline conditions and monitoring 
requirements to demonstrate that the

[[Page 26081]]

agreement achieves a net conservation benefit. Likewise, we closely 
coordinate with State wildlife agencies during our review of plans and 
agreements. Each of our handbooks contains a section dedicated to 
coordination with States, underscoring the importance of this 
collaboration.
    Comment 43: Some commenters were concerned that additional take 
authorizations may be required by States and possibly other regulatory 
entities and suggested that we include a statement in 50 CFR 17.2 
indicating that take authorization provided in part 17 is for ESA-
related take only. The commenters also asserted that all sections in 50 
CFR 17.22 and 17.32 for permits should have a paragraph on permit 
conditions, that includes a condition to obtain, if required, State 
take authorization for the State-listed species. The commenters also 
stated that the Service should amend 50 CFR 17.22 and 17.32 to include 
a requirement for permit applicants to obtain any necessary State 
authorizations before being federally approved. In addition, several 
commenters requested continued involvement in such evaluations and 
recommended that the Service consider including language in the rule to 
account for State involvement in the species and habitat evaluation 
processes.
    Response: Because not all States have a permitting process or 
require permits for all species that could be covered in an enhancement 
of survival or incidental take permit (e.g., insects), we decline to 
include this recommendation in the final regulations. It is common 
practice for the Service to recommend coordination with State wildlife 
agencies, Tribes, and stakeholders as applicants are developing their 
plans or agreements. The issuance of an incidental take or enhancement 
of survival permit does not absolve an applicant from obtaining other 
required State, Tribal, and local permits.
    Comment 44: One commenter suggested that we add the following 
language to Sec.  17.22(c)(6): ``Implementation of the terms of a 
conservation benefit agreement must be consistent with applicable 
State, local, or Tribal government laws and regulations.''
    Response: We decline to add this language to our regulations, which 
is unnecessary given that applicants must certify on the application 
that they are operating consistent with other Federal, State, and 
Tribal laws. However, we added ``Tribal'' to the definition of 
``property owner,'' as follows: ``sufficient to carry out the proposed 
activities, subject to applicable State, Tribal, and Federal laws and 
regulations.''
    Comment 45: Several commenters assert that streamlining the process 
for developing conservation agreements and plans, expanding outreach 
capacity both within and outside of the Service to work with 
landowners, and providing dedicated support for the long-term 
implementation of these agreements by nongovernmental organizations and 
other third-parties are among the most significant actions that the 
Service could take to expand the reach of these tools and advance 
proactive conservation and species recovery on private land.
    Response: The goal of our regulation changes is to streamline and 
provide more clarity on permits and their associated plans and 
agreements, which should increase conservation on non-Federal lands. 
Outreach to communities, property owners, local and State government, 
other Federal agencies, and Tribes is part of our work to promote and 
increase the use of these tools.
    Comment 46: Several commenters stated that, while the final rule 
may help streamline procedures and encourage consistency in review and 
approval of permit applications, review and approvals can be delayed 
regardless of streamlining if there are insufficient personnel or 
funding to assist applicants in preparation and review of applications. 
The commenters did not foresee a major reduction in workload for the 
Service as a result of the proposed rule changes. To ensure successful 
implementation of a final rule, they requested that we allocate 
dedicated funds to facilitate and support voluntary conservation 
planning by supporting at least one full-time equivalent habitat 
conservation planning staff person across each region to support 
applicants and facilitate review of section 10 permit applications.
    Response: We recognize the importance of having staff dedicated to 
support the work on these permits and associated plans and agreements, 
and we have staff in each of our regional offices whose primary job is 
to work on enhancement of survival and incidental take permit 
applications. In addition, we anticipate that the changes to the 
regulations will result in more efficiencies and shorten the time it 
takes for our staff to review and finalize permits, plans, and 
agreements.
    Comment 47: Several commenters asserted that we need more staff to 
timely process incidental take and enhancement of survival permit 
applications or suggested, alternatively, that we need to be more 
efficient in processing permit applications, including empowering field 
offices to streamline planning and permitting.
    Response: Currently we delegate enhancement of survival and 
incidental take permits that qualify for categorical exclusion under 
NEPA (e.g., low-effect) to our field offices, thus shortening the 
review process for those plans and agreements. We expect the revisions 
to these regulations to make the process more efficient by clarifying 
what is needed for a complete application. We will evaluate additional 
ways to streamline our processes and consider incorporating those 
processes in our handbooks.
    Comment 48: A commenter asserted that the proposed rule only 
codifies existing guidance--specifically, the 2016 Habitat Conservation 
Planning Handbook, five-point policy, SHA policy, and CCAA policy--and 
thus does not appear to substantively change the existing permit 
application process, which is currently lengthy and burdensome. The 
commenter states support for the Service codifying guidance and 
standardizing practices across applications and regions, as doing so 
will help resolve ambiguities and challenges arising from different 
interpretation of Service regulations. However, the commenter asserted 
that such codification, without further amendments, will not change the 
amount of time and resources needed to obtain a section 10 permit and 
will not significantly ameliorate the extent to which this investment 
of time and resources discourages members of the regulated community 
from applying for such permits.
    Response: The purpose of the regulatory revisions to Sec. Sec.  
17.22 and 17.32 is to clarify and codify long-held policy and guidance 
into the regulations. We acknowledge that these revisions do not 
fundamentally change the section 10 permit application processes, but 
we conclude they will improve plan and agreement negotiations, 
expediting the process and addressing, at least in part, the 
commenter's concerns about the investment of time and resources by 
applicants.
    Comment 49: Several commenters indicated that the section 10 
permitting is a burdensome process that involves significant time and 
costs to draft, negotiate, and receive approval for either conservation 
agreements or habitat conservation plans. They asserted that, although 
we stated this proposal aims to clarify and simplify the process, we 
did not identify or provide

[[Page 26082]]

mechanisms and support to reduce the administrative burdens and costs 
that often serve as barriers to individual landowners participating in 
conservation agreements or plans.
    Response: We conclude that the changes and the clarifications 
provided in this final rule will improve the process for developing 
plans and agreements. We received several recommendations to further 
improve the process that we are considering and may incorporate into 
our handbooks.

Comments That Apply to Enhancement of Survival Permits Supported by 
Conservation Agreements

    Comment 50: One commenter suggested revising the definition of 
``baseline'' by adding the following language at the end of the 
definition: ``The Service shall determine baseline condition after 
consulting with the landowner, using the best available science and 
ecological modeling practices.''
    Response: Because we work closely with landowners when developing 
conservation agreements and use the best available science to select 
the most appropriate methods to determine the baseline of a property, 
including the suggested language in the regulations is unnecessary.
    Comment 51: One commenter stated that we should clarify that take 
from a potential return to baseline will factor into our issuance 
determinations and that we will consider impacts to the overall 
population of the covered species in our analysis. Another commenter 
sought clarification to the issuance criteria at Sec.  17.22(c)(2)(ii) 
and suggested adding the following language: ``When making a decision 
to approve a conservation benefit agreement, the Service shall include 
sufficient conditions to ensure that the overall population of the 
covered species will not be reduced if the land is ultimately returned 
to baseline conditions.'' The commenter asserted that this modification 
makes it clear that we will fully account for take from a potential 
return to baseline when we issue enhancement of survival permits, 
thereby reducing potential confusion for all parties.
    Response: When we issue an enhancement of survival permit under a 
conservation agreement, we conduct an intra-service section 7 
consultation, and part of that consultation considers the impacts of 
the permitted take to the overall population of the species including 
take from a potential return to baseline.
    Comment 52: One commenter requested that we repropose the rule to 
include information on how ``baseline conditions'' should be determined 
under our new definition for ``baseline'' and to provide a cost impact 
analysis for this required determination.
    Response: Because each species and area covered by a conservation 
agreement is unique, we cannot describe how baseline will be determined 
for each species. We use the best available scientific information to 
identify the appropriate method for determining baseline for a species 
on a property. For some species it may be possible to conduct surveys 
to count individuals, but for other species we may use habitat 
conditions as the best method to describe baseline conditions. In 
addition, we cannot provide a cost estimate for determining baseline 
because that determination will vary by species and size and location 
of the agreement area.
    Comment 53: Two commenters requested that we revise the definition 
of ``baseline'' by replacing ``could'' with ``currently sustains'' to 
more accurately reflect existing conditions of the enrolled land. One 
commenter asserted that in the definition we should focus on species 
status and enrolled land conditions as they presently exist. The 
commenter further asserted that, in the definition of ``baseline,'' the 
addition of the word ``could'' creates uncertainty and potential 
disagreement on the description of the baseline, the determination of 
net conservation benefit above baseline, and the lawful return to 
baseline. The commenter stated that baseline is an empirical 
description of the starting condition of habitat and species range and 
size, and that forecasting, estimating, or debating over habitat or 
population characteristics is not needed to determine baseline. Another 
commenter stated that the baseline condition of a landowner's property 
should be determined using actual conditions on the ground at the time 
of the agreement rather than hypothetical scenarios.
    Response: To clarify that baseline condition is the starting 
condition of the property to be enrolled in a conservation agreement, 
we revised the definition of ``baseline'' by changing ``could'' to 
``currently sustains.''
    Comment 54: Another commenter recommended that we add ``across'' to 
the definition of ``baseline'' to maximize participation and processing 
efficiency as shown here: ``Baseline condition means population 
estimates and distribution or habitat characteristics across the 
enrolled land.'' The commenter asserted that the regulations should 
focus on habitat conditions across the entirety of the enrolled land 
rather than on specific stands or tracts.
    Response: The baseline for a property to be enrolled in a 
conservation agreement includes the species population estimates or 
habitat evaluation for the entire property. To ensure that this concept 
is clear, we added the word ``across'' to the definition of 
``baseline.''
    Comment 55: One commenter stated that the baseline condition should 
be based on the time when the permit application is deemed technically 
complete rather than at the time when the Service executes the 
document.
    Response: The baseline condition is based on when surveys or 
habitat evaluations are completed and agreed upon by the property 
owner. Baseline is part of the draft agreement available for public 
comment when we announce receipt of the associated permit application 
in the Federal Register; therefore, the baseline should not change 
after public comments are received. In addition, the baseline is 
unlikely to change between that time and when we issue the permit and 
sign the agreement, because the Service rarely encounters substantial 
delays in processing enhancement of survival permits after publishing 
the notice of availability in the Federal Register.
    Comment 56: One commenter asserted that the term ``ongoing 
activities'' in the definition of ``net conservation benefit'' can be 
misleading and recommended that we replace it with ``property 
management actions,'' defined as actions that are conducted as part of 
property operations, maintenance, modernization, or as otherwise 
authorized by Service consultation. The commenter also suggested the 
inclusion of ``otherwise authorized by Service consultation'' as a 
means to allow other activities that are unforeseen at the time the 
permit is approved but aligned with the intent of actions included in 
the ``property management actions'' or similar definition.
    Response: We used the term ``ongoing activities'' to limit the 
activities that would be covered by an enhancement of survival permit. 
``Property management actions'' would be too broad because, as proposed 
by the commenter, new activities under the term ``modernization'' could 
be included that would not be appropriate to be covered by the permit, 
such as inclusion of a new pipeline. To issue an enhancement of 
survival permit associated with a conservation agreement, the Service 
must find that the covered activities in the conservation agreement 
provide a

[[Page 26083]]

net conservation benefit to the covered species.
    Comment 57: One commenter recommended that we modify the definition 
of ``baseline condition'' and the description in the preamble to 
include scenarios where habitat does not currently exist but would be 
established under the conditions of a conservation agreement.
    Response: We find it unnecessary to revise the definition of 
``baseline condition'' to include such scenarios because that term 
refers to the conditions on the property at the time the conservation 
agreement is developed, not a desired future state. A property need not 
have habitat for the covered species at the time the agreement is 
developed. The agreement would include conservation measures aimed at 
creating species habitat over the duration of the agreement.
    Comment 58: One commenter asserted that the definition of 
``baseline condition'' or guidance on its application should ensure 
that an applicant may establish baseline conditions using a landscape 
or macro framework rather than a habitat element or micro perspective.
    Response: Baseline condition is established for the entire property 
covered by a conservation agreement. Using a landscape approach may be 
appropriate for some properties, but that approach would be determined 
on a case-by-case basis.
    Comment 59: One commenter encouraged us to clarify the role of an 
applicant's choice to return a property to baseline condition. The 
commenter requested that State agencies be thoroughly consulted, 
particularly for non-listed species in which States retain a primary 
jurisdictional interest, when determining the processes by which an 
assessment of baseline conditions will be made, conditions monitored 
over the duration of a permit and agreement and beneficial conservation 
measures preserved after the end of the permit period and a return to 
baseline.
    Response: The regulations allow the applicant to make this choice 
about returning a property to baseline. States are important partners 
in species conservation, and we will involve State wildlife agencies 
when we develop conservation agreements, including discussing how we 
will determine the baseline condition of a property for the covered 
species.
    Comment 60: One commenter suggested adding a sentence to Sec.  
17.22(c)(8), ``Discontinuance of permit activity,'' to clarify that a 
permittee cannot return the property to baseline until the permit has 
expired. The commenter suggested adding the sentence: ``A permittee may 
not return their property to baseline condition until after the agreed 
upon permit duration has expired.''
    Response: A property owner may return the property to baseline 
conditions at the end of the agreement and prior to permit expiration, 
if this option is identified in the conservation agreement prior to 
issuance of the permit. Alternatively, a property owner may choose no 
longer to participate in the conservation agreement and can return the 
property to baseline condition just prior to giving up their permit. 
For any listed species covered by the agreement and permit, the permit 
must still be in place for the property owner to return to baseline. We 
determine that it is unnecessary to include the suggested language in 
the regulations and will provide additional guidance on this concept in 
our handbook.
    Comment 61: Several commenters stated that the newly proposed 
definition of ``net conservation benefit'' omits an important pathway 
for providing net conservation benefits through maintaining existing 
habitat conditions and continuing management that is beneficial to 
species. They asserted that we should revise the definition of ``net 
conservation benefit'' and related application criteria to provide for 
maintenance as well as improvement in baseline conditions. They further 
stated that we should acknowledge and incorporate the language in 
existing CCAA policy that includes circumstances where the species and 
habitat are already adequately managed when assessing whether the 
condition of the covered species or the amount or quality of its 
habitat is reasonably expected to be greater at the end of the 
agreement period than at the beginning.
    Response: We revised the definition of net conservation benefit to 
make it clear that, in circumstances where a property already contains 
suitable habitat for the species and the conservation measures include 
a commitment by the property owner to maintain and manage that habitat, 
the property would meet the net conservation benefit requirement and 
could qualify for inclusion in a conservation agreement.
    Comment 62: One commenter asserted that projects with long-term 
climate benefits should be able to meet the definition of net 
conservation benefit. They also stated that the definition of net 
conservation benefit should be drafted in a way that acknowledges that 
the climate change benefits of a project should be considered in the 
assessment and supports creative mitigation solutions to climate 
change.
    Response: The duration of an agreement must be long enough to 
provide a net conservation benefit to the covered species. While some 
projects may provide long-term climate benefits, the projects may not 
provide these benefits during the timeframe of a conservation 
agreement. However, we could evaluate whether these types of projects 
provide a specific net conservation benefit to the species on a case-
by-case basis.
    Comment 63: One commenter asserted that the proposed definition of 
``net conservation benefit'' fails to emphasize the need for improved 
survival of the covered species. The commenter asserted that, by 
focusing on improved habitat conditions, we give away assurances 
without getting effective conservation. Another commenter stated that 
the definition of net conservation benefit is not adequate and that we 
should clarify that the specific activity authorized must benefit the 
species. The commenter further stated that the definition should 
clarify that net conservation benefit must be sufficient to contribute 
to the recovery of covered species in the wild and increase the long-
term survivability of such species.
    Response: The definition of ``net conservation benefit'' provides 
for an improvement of the covered species, either through a direct 
benefit to individuals (e.g., reintroduction) or by creating or 
enhancing habitat. Conservation agreements provide for effective 
conservation by implementing specific measures aimed to improve the 
status of the species; previously issued CCAAs have been shown to 
improve species status such that listing is not warranted.
    Comment 64: Another commenter asserted that, while the proposed 
definition of ``net conservation benefit'' refers to the species' 
status, the proposed regulation considers only each covered species' 
existing baseline condition on the enrolled land. The commenter stated 
that this approach is too restrictive and that the regulations should 
also anticipate and encourage improvements to species' existing 
baseline conditions on areas impacted by covered activities, including 
through spillover of recovered populations onto adjacent or other 
lands.
    Response: The net conservation benefit determination is made for 
the property that is enrolled in a conservation agreement based on the 
conservation measures that the property

[[Page 26084]]

owner agrees to implement and taking into consideration the ongoing 
activities for which we authorize take through the permit. We do not 
consider adjacent land or other land that is beyond the area covered by 
the agreement.
    Comment 65: One commenter recommended that we remove the language 
``the amount or quality of its habitat'' because, in many cases, 
benefits to habitat will reasonably be expected to improve the status 
of the species and, where they do not, there would be no ``net 
conservation benefit.''
    Response: While we agree that benefits to habitat will result in 
improvements to the status of the species, we are retaining this 
language to make it clear that the net conservation benefit can be 
achieved through habitat creation or improvement.
    Comment 66: One commenter suggested that we recommend specific 
conservation metrics when defining net conservation benefit and that 
these metrics might include changes in habitat area, habitat 
connectivity, and expected change in abundance, for example.
    Response: While conservation agreements will include metrics to 
monitor and determine effectiveness of the conservation measures such 
as those suggested by the commenter, we did not specifically list these 
in the regulations. However, we will discuss metrics related to net 
conservation benefit further in our handbook.
    Comment 67: One commenter suggested that, although a quantitative 
target seems unworkable given the variability of species and agreements 
at issue, we should include a qualitative target such as a meaningful 
or substantial improvement, which could be helpful while still allowing 
reasonable flexibility.
    Response: We are not including the suggested language because it is 
subjective and could be open to interpretation. However, we will 
include more explanation on this issue in our handbook.
    Comment 68: One commenter asserted that we could further clarify 
the definition of ``net conservation benefit'' by adding language 
specifically confirming that the improvement in condition must be 
expected to result from the specific conservation measures implemented. 
The commenter stated that, although it is suggested by the proposed 
language, further clarification is needed to tie the improvement in 
condition to the specific conservation measures. The commenter asserted 
that this tie could be accomplished by inserting the phrase ``because 
of the implementation of the specific conservation measures'' 
immediately after ``that'' the second time it appears, so that the 
language would read ``that, because of the implementation of the 
specific conservation measures, the condition of the covered species . 
. . .''
    Response: We have revised the definition of ``net conservation 
benefit'' by adding the word ``conservation'' to make it clearer that 
the improvements to the species' status or habitat on the enrolled 
property is a result of implementing the agreed-to conservation 
measures.
    Comment 69: Another commenter suggested a revision to the 
definition of ``net conservation benefit'' to require a showing of 
improvement in the condition of species already present on the relevant 
property, unless the nature of, or knowledge about, the species makes 
such a showing unreasonably difficult. They suggested the following 
language: ``. . . or, as appropriate for each covered species not 
resident on the property or each resident species for which species 
status is not determinable with a reasonable level of effort, the 
amount or quality of its habitat.''
    Response: We decline to add the suggested language because it is 
not necessary as improvement of the species is already incorporated 
into the definition and is a requirement of a conservation agreement 
either by directly improving the population of the species or by 
improving the habitat of the species on the property. However, further 
explanation on how to determine baseline, and thus a net conservation 
benefit, will be included in our handbook.
    Comment 70: One commenter asserted that we need to clarify how 
adverse impacts to covered species from ongoing land or water use 
activities and conservation measures will be determined. They stated 
that this clarification is especially important if we intend to 
calculate adverse impacts and then apply them as an offset to the 
benefits of a conservation agreement.
    Response: The adverse impacts to the covered species from 
implementation of the conservation measures or ongoing land or water 
use activities would be based on the biology of the specific species. 
Monitoring can help to inform this impact using species surveys or 
habitat evaluation. Additionally, while implementation of the 
conservation measures could have some short-term impacts, these 
measures will ultimately benefit the species.
    Comment 71: One commenter stated that we should indicate that net 
conservation benefits are determined based on all voluntary actions by 
the applicant that benefit the species, whether new or continued, and 
not just new actions to be taken under the application.
    Response: When we determine whether a conservation agreement meets 
the net conservation benefit requirement, we look at all the beneficial 
actions that the property owner is taking on their property, whether 
they are continuing actions or implementing new measures. We decline to 
revise the regulations to include this clarification, but we will 
discuss this issue further in our handbook.
    Comment 72: One commenter proposed that the neighbor requirement 
for applicants under Sec.  17.22 (c)(1)(vii)) read as follows: ``A 
description of the enrollment process to provide neighboring property 
owners incidental take coverage under paragraph (c)(5)(ii) of this 
section with an agreement to supply proof that there has been a 
reasonable effort to give neighbors notice of the application, if 
applicable, or any other measures developed to protect the interests of 
neighboring property owners.'' Another commenter asserted that the 
proposal should be revised to guarantee this protection to neighboring 
landowners. The commenter stated that it could be done by changing 
``may'' to ``shall'' and minimizing the burdens imposed on neighboring 
landowners to obtain this protection.
    Response: We decline to include the suggested addition to the 
neighboring property provisions because neighboring property owner 
provisions are not a requirement of a conservation agreement. The 
neighboring property provision may be unnecessary in situations where 
the species are not very mobile or if suitable habitat is not located 
on the property adjacent to the enrolled property in the conservation 
agreement. Requiring that every agreement include neighboring property 
owner provisions will create unnecessary work in some cases.
    Comment 73: One commenter suggested that we define neighboring 
property owners based on the biology of the species that the permit 
will cover and not just in regard to immediately adjacent neighboring 
property owners or a neighboring property owner's proximity to the 
permitholder. The comment asserted that a species-specific definition 
will ensure that all ``neighbors'' within a species' range will be 
covered.
    Response: We find that it is not necessary to adopt this suggestion 
because, when we include neighboring property owner provisions in an

[[Page 26085]]

enhancement of survival permit, we already consider the biology of the 
species to help determine which properties would be appropriate to 
include. For instance, it may not be appropriate to include all 
neighboring property owners within the species' range because the 
species' dispersal capabilities may be limited and suitable habitat may 
not exist on all proximate properties.
    Comment 74: One commenter supported the proposed changes that 
clarified considerations for extending incidental take coverage to 
neighboring property owners. The commenter noted that the proposed rule 
suggests enrollment procedures for adjacent landowners should be 
contained in the agreement and stated that the method of providing 
incidental take coverage to neighboring lands as written is flexible 
and intended to be tailored to the specific agreements and needs of 
adjacent property owners. Another commenter opposed the provision 
allowing the Service to authorize incidental take coverage for owners 
of properties adjacent to properties covered by the conservation 
agreement.
    Response: Including neighboring property owner provisions is an 
important concept that can help to encourage more property owners to 
participate in a conservation agreement. Knowing that their neighbors 
can be covered for take that might occur as a result of the species 
expanding beyond the boundaries of the property enrolled in an 
agreement can be an incentive for enrollment, thus increasing the 
conservation for listed and at-risk species under the ESA.
    Comment 75: One commenter stated that the Service should revise the 
phrase in the definition of ``property owner'' from ``owners of water 
or other natural resources'' to ``owners of rights to water or other 
natural resources.''
    Response: We agree that water and other natural resources are not 
owned and have revised the regulation to ``owners of rights to water or 
other natural resources.''
    Comment 76: Several commenters noted that we removed ``a person 
with a fee simple, leasehold, or'' from the definition of ``property 
owner'' and that we did not explain the purpose or need for this 
revision, or why these entities are specifically being excluded as 
property owners. The commenters recommended that we specifically 
include in the definition ``permit and lease holders of the enrolled 
property'' as these entities may be the property managers of such 
estates.
    Response: We removed the specific references to a person with a 
``fee simple'' or ``leasehold'' property interest to simplify the 
definition of ``property owner.'' The revised definition is 
sufficiently broad to include persons with fee simple or leasehold 
interests. The threshold requirement to qualify as a property owner is 
the legal ability to implement the agreement.
    Comment 77: One commenter stated that we used the term ``enrolled 
land'' multiple times in the proposed rule, but we have approved CCAAs 
in the past that include other property interests, including water 
rights. The commenter suggested that we clarify that those other 
property interests are covered by the final regulations and requested 
that we consistently refer to ``property'' throughout the rule, except 
where a narrower scope is specifically intended.
    Response: We have changed several references from ``enrolled land'' 
to ``enrolled property'' as appropriate in Sec.  17.22 in paragraphs 
(c)(1)(iv), (v), and (viii), (c)(2)(ii), and (c)(4) and in Sec.  17.32 
in paragraphs (c)(1)(iv), (v), (viii), (c)(2)(ii), and (c)(4).
    Comment 78: Many commenters supported the proposal to combine CCAAs 
and SHAs into one agreement type. Commenters stated that this change 
will simplify the permit process and will also provide applicants that 
had previously applied for a CCAA with the option of returning a 
property to baseline conditions, which under current regulations is an 
option available only to SHA applicants. Other commenters opposed 
combining CCAAs and SHAs, stating that CCAAs and SHAs should have 
different standards for non-listed and listed species. They asserted 
that the regulations as proposed will set a higher regulatory hurdle 
for conservation agreements for candidate species (meant to avoid a 
listing) by formalizing requirements that are as stringent as post-
listing agreements (designed to aid in the recovery of a listed 
species). The commenters stated that combining the two agreements will 
make it more onerous, burdensome, and costly for applicants, 
permittees, participants, and enrollees to overcome the higher 
regulatory hurdles (a recovery standard) to conserve candidate species.
    Response: We analyze the same factors to decide whether to list a 
species as we do to decide whether to downlist or delist; we do not 
have different standards for these determinations. Agreements for non-
listed species have the same requirements as for listed species: They 
must provide a net conservation benefit by addressing the threats to 
the species on the enrolled property or otherwise improving the status 
of the species.
    Comment 79: One commenter wanted to know if all programmatic 
agreements established prior to a listing automatically continue post-
listing and, if so, whether property owners must enroll by a deadline, 
or whether enrollment continues indefinitely. The commenter also 
asserted that if enrollments continued post-listing, landowners would 
not have incentives to enroll prior to listing because they could wait 
until post-listing and still get the same assurances against further 
restrictions on land or resource use.
    Response: Programmatic agreements that are established prior to a 
covered species becoming ESA-listed can continue to allow enrollment of 
new property owners under the agreement post-listing. A property owner 
may want to enroll prior to a species listing so that ongoing covered 
activities on the property can continue seamlessly should the species 
be listed. If a property owner waits until a species is listed, 
enrollment will be delayed until the application is completed.
    Comment 80: One commenter stated that conservation agreements, as 
proposed, have the potential to reduce timeframes and resources needed 
to develop and implement the agreements. However, the commenter 
suggested that additional details regarding how agreements will be 
executed pre- and post-listing are needed. Further, the commenter asked 
for clarification about whether a conference opinion that accompanies 
an enhancement of survival permit supported by a conservation agreement 
prior to listing would be converted to a biological opinion upon 
listing.
    Response: Conservation agreements that are developed prior to a 
species being listed will continue seamlessly, as outlined in the 
agreement, if the species is listed. For non-listed species covered by 
an agreement and permit, a conference opinion would be completed 
because permit issuance is a Federal action requiring a section 7 
consultation. If the species was subsequently listed under the ESA, we 
would convert the conference opinion into a biological opinion.
    Comment 81: One commenter stated that the proposed definition of 
``goals and objectives'' is insufficient to ensure that the goals can 
be met and measured.
    Response: Each agreement is unique; therefore, we cannot specify 
what specific goals and objectives need to be included. However, in 
general, the goals and objectives need to be measurable through 
monitoring and must help determine if the net conservation benefit is 
being achieved. Additional guidance will be included in the handbook.

[[Page 26086]]

    Comment 82: Two commenters encouraged the Service to clarify how it 
will handle SHAs or CCAAs that are under development at the time this 
regulation is finalized. They asserted that, given the time and 
resources necessary to prepare these applications, SHAs and CCAAs that 
are in the final stages of the process should not have to restart under 
a new regulatory framework.
    Response: We provided notice to those entities that were working on 
a CCAA or SHA prior to the finalization of these regulations. The CCAAs 
or SHAs that have already been noticed in the Federal Register and are 
in the final stages of permitting do not have to be revised provided 
they meet issuance criteria.
    Comment 83: One commenter sought clarity on whether this regulation 
alters our policy on candidate conservation agreements (CCAs), which do 
not include an enhancement of survival permit or provide assurances.
    Response: The revision to our section 10 regulations does not alter 
our policy on CCAs. While we do not issue permits in conjunction with 
CCAs, they remain an important conservation tool for non-listed 
species.

Comments That Apply to Incidental Take Permits Supported by a 
Conservation Plan

    Comment 84: Many commenters expressed their support for codifying 
in the regulations that incidental take permits may be issued for non-
listed species without listed species included on the permits. The 
commenters stated that the provision will provide additional 
flexibility to further the statutory purpose of the ESA by encouraging 
voluntary conservation of species before they are listed. Conversely, 
some commenters expressed concern that a provision to include only non-
listed species in incidental take permits oversteps the Service's 
authority by blurring the line between State and Federal authority. 
Some commenters suggested that we require concurrence or approval from 
States before issuing such incidental take permits.
    Response: Allowing for incidental take permits to be issued for 
non-listed species does not diminish or replace the State's 
authorities. Further, we will continue to encourage applicants to 
include State, Tribal, and other Federal partners in the development 
and implementation of conservation plans to ensure consistency with 
other authorities.
    Comment 85: Several commenters were confused by the proposed 
language included in Sec.  17.22(b)(1)(v)(A) where it states that the 
habitat conservation plan must explain the conservation measures that 
will be taken to minimize and mitigate the impacts of the incidental 
take for all covered species commensurate with the taking. They 
interpreted this language to mean that the requirement is to fully 
offset impacts to covered species, contrary to the ESA issuance 
criteria because of guidance provided in the 2016 Habitat Conservation 
Planning Handbook.
    Response: The text at Sec.  17.22(b)(1) includes a list of 
information that must be included in a conservation plan, consistent 
with the requirements of section 10(a)(2)(A) of the ESA. The commenters 
conflated the requirements in section 10(a)(2)(A) with the statutory 
issuance criteria in section 10(a)(2)(B). For a conservation plan, the 
revised regulations clarify that the applicant must describe the 
measures that the applicant will take to minimize and mitigate the 
impact of the taking commensurate with the taking. We use the term 
commensurate to mean in proportion to. The example the commenters 
referenced from the handbook is taken out of context. However, we will 
reevaluate the example used during the upcoming handbook update to 
reduce confusion.
    Comment 86: Several commenters asserted that the rule appears to 
inappropriately shift conservation plan permitting development to the 
Service when ESA section 10 permits are entirely voluntary and led by 
the applicant.
    Response: The decision to apply for a section 10 permit is 
voluntary. Once the decision is made to seek a permit, the applicant is 
required to comply with the statute and regulations and develop the 
plan or agreement consistent with policy and guidance. For incidental 
take permits, that includes participating in negotiations with the 
Service to ensure the conservation plan meets the statutory 
requirements of ESA section 10(a)(2)(A)(i)-(iv). The statutory text of 
the ESA requires a conservation plan to include ``such other measures 
that the Secretary may require as being necessary or appropriate for 
purposes of the plan.'' This language demonstrates Congress' intent to 
provide the Service with the authority to require that applicants 
include appropriate measures in a conservation plan and reflects an 
expectation that we will work with applicants on plan development.
    Comment 87: Several commenters asserted that the application 
completeness standard is equivalent to determining whether the 
application and its supporting plan meet the statutory issuance 
criteria. They stated that this front-loading of the process gives the 
Service undue leverage in negotiating the terms and conditions of an 
incidental take permit and violates existing policy that the incidental 
take permit application process is applicant-driven. Other commenters 
suggested that, while the language does attempt to clarify when 
applications are complete, it gives the Service subjective authority to 
determine when an application is complete resulting in perpetual 
indecision for applicants.
    Response: The application process is considered applicant-driven 
because it is the applicant's decision whether to seek a permit. Once 
an applicant decides to seek a permit and applies for an incidental 
take permit, developing a conservation plan is a prerequisite to 
issuance of the permit and therefore the conservation plan is an 
application requirement. Through the conservation plan, the applicant 
demonstrates to the Service how the applicant intends to meet the 
incidental take permit issuance criteria. For the Service to determine 
that the incidental take permit application is complete, the supporting 
conservation plan must include all the required information as set 
forth in ESA section 10(a)(2)(A) and the regulations in Sec. Sec.  
17.22(b)(1) and 17.32(b)(1) and be consistent with Service policy and 
guidance. The level of detail in the conservation plan must be 
sufficient for the Service to conduct our required analyses (e.g., NEPA 
and ESA section 7) and to determine whether the application meets 
permit issuance criteria set forth in ESA section 10(a)(2)(B). The 
Service will not deem an application complete or begin processing the 
application until these requirements are met. The Service's 
determination that the application is complete, however, does not 
guarantee that we will determine that the application meets the 
incidental take permit issuance criteria. Additional guidance on this 
subject will be included in the update to the handbook.
    Comment 88: Many commenters suggested that we should address the 
inordinate length of time required to process ESA section 10 permits, 
asserting that the length of time for the Service to deem an 
application complete is often one of the key complaints raised by 
applicants. The commenters further asserted that we do not clearly 
specify the requirements for a complete application. The commenters 
stated that, in practice, an application is not complete until the 
Service deems it so, which typically involves lengthy negotiations 
between

[[Page 26087]]

the Service and the applicant, particularly with respect to habitat 
conservation plans. They further stated that the requirements for a 
complete application, as provided in the current and proposed 
regulations, are not predictable. The commenters stated that the 
requirements for a complete application should be clearly set forth in 
the regulations and transparent to applicants.
    Response: An incidental take permit application will not be deemed 
complete until we have determined that the applicant's supporting 
conservation plan includes all the required information as set forth in 
ESA section 10(a)(2)(A) and the regulations in Sec. Sec.  17.22(b)(1) 
and 17.32(b)(1) and is consistent with current policy and guidance. In 
addition, the conservation plan must include a level of detail 
sufficient for us to conduct our required analyses (e.g., NEPA and ESA 
section 7) and to determine whether the application meets permit 
issuance criteria as set forth in section 10(a)(2)(B). In addition to 
providing guidance in an update to the handbook, we will also consider 
developing a policy to outline a more formal process to determine 
whether an application is complete, along with a potential timeline, to 
provide more predictability.
    Comment 89: Several commenters stated that the statute does not 
contain a reference to processing complete applications and does not 
give the Service the ability to deem applications incomplete and 
withhold processing them. Others asserted that the Service should 
instead process the application as is and formally deny the permit.
    Response: An incidental take permit application and the related 
conservation plan must include the necessary information required by 
the statute and regulations. Only after that information is provided 
can we evaluate the application and associated conservation plan. The 
conservation plan must contain sufficient detail for us to determine 
whether the application meets the issuance criteria set forth in ESA 
section 10(a)(2)(B). Processing an incomplete application is 
inefficient and ineffective.
    Comment 90: Several commenters recommended that we could 
incentivize participation in the incidental take permit program by 
addressing disincentives related to the length and expense of the 
process. The commenters asserted that we could adopt mechanisms to 
resolve key areas of dispute that frequently arise during permit 
negotiations and that can become very protracted and lead to 
significant applicant frustration. Some commenters suggested adopting 
dispute resolution processes similar to other Federal agencies or 
developing an internal elevation process through the chain-of-command 
within the Service to resolve disputes.
    Response: We will explore options and consider developing a policy 
to incorporate dispute resolution into the conservation planning 
process.
    Comment 91: Several commenters stated that we do not have the 
authority to add permit terms not agreed to by an incidental take 
permit applicant.
    Response: Both the statute in section 10(a)(2)(A)(iv) and 
10(a)(2)(B)(v) and the regulations in Sec. Sec.  17.22(b)(1)(xi) and 
17.32(b)(1)(xi) provide the Service with the authority to add terms and 
conditions, but this authority is rarely exercised without the consent 
of the applicant.
    Comment 92: One commenter raised concerns that we changed the 
requirements for funding assurance to accounting of funding to be 
consistent with the handbook. The commenter also asserted that guidance 
provided in chapter 9 of the handbook includes impractical financial 
analysis requirements that were added without the opportunity for 
public comment.
    Response: Based on lessons learned, we made this change in the 
regulations to clarify that funding assurances described in the 
conservation plan must include a detailed accounting of how the 
applicant intends to fund plan implementation over the permit term. 
Some applicants mistakenly believed that providing an assurance, which 
is simply a promise of funding, was sufficient. The guidance in chapter 
9 of the handbook provides many examples and possible options to meet 
the funding assurance requirements, and the public was provided an 
opportunity to comment. The draft Habitat Conservation Planning 
Handbook was published in the Federal Register on June 28, 2016, and 
requested that public comments be received by August 29, 2016 (81 FR 
41986). The final handbook was published on December 21, 2016 (81 FR 
93702).
    Comment 93: One commenter stated that projects federalized either 
through Federal funding or mechanisms similar to Federal Highway 
Administration delegations should be entitled to enroll in programmatic 
habitat conservation plans and take advantage of the streamlining 
opportunity those plans provide.
    Response: During development of programmatic conservation plans, we 
encourage applicants to consider streamlining opportunities by 
coordinating with other Federal and State permitting agencies to 
participate in the plan. If this streamlined enrollment opportunity is 
not included in an existing programmatic plan, the permittee may amend 
the plan and request to amend the permit to add the activities that 
were not analyzed in the original programmatic plan.
    Comment 94: One commenter suggested that we include in the 
regulations a requirement that all habitat conservation plans include a 
determination as to whether they contribute to species recovery under 
the ESA or merely avoid jeopardy.
    Response: The statutory language in the permit issuance criteria in 
ESA section 10(a)(2)(B) states that ``the taking will not appreciably 
reduce the likelihood of the survival and recovery of the species in 
the wild.'' Therefore, the statute does not place the burden of 
recovery on applicants. Rather, the applicable standard is that our 
issuance of the incidental take permit cannot reduce the species' 
likelihood of recovery in the wild. However, in our set of findings, 
which is part of the permit decision process, we may consider including 
a statement explaining how our issuance of the permit contributes to 
the recovery goals for the species.
    Comment 95: One commenter suggested that we define ``maximum extent 
practicable'' in the regulations or revise the handbook to state that 
what an applicant has proposed in a habitat conservation plan 
represents the most that the applicant can practicably accomplish and 
thus satisfies the maximum extent practicable criteria. Another 
commenter states that the maximum extent practicable standard does not 
require applicants to fully offset the impacts from the taking.
    Response: Chapter 9.5 of the handbook provides guidance on how the 
maximum extent practicable standard can be met. The revised regulations 
do not require applicants to fully offset the impact of the taking and 
do not change the maximum extent practicable standard.
    Comment 96: Several commenters recommended that the Service allow 
research as a mitigation option for incidental take permits to 
encourage additional participation in conservation plans. Other 
commenters objected to allowing research as mitigation, stating that 
doing so would authorize take without properly mitigating the impacts 
of the taking. To address this concern, these commenters recommended 
that, if research is allowed as mitigation, the regulations should 
clarify that both the research and the informed conservation must be 
requirements of the associated

[[Page 26088]]

incidental take permit and the mitigation must offset the impacts of 
the taking, not just inform future conservation.
    Response: As stated in our mitigation policy, research that is 
directly linked to reducing threats or that provides a quantifiable 
benefit to the species may be appropriate under certain circumstances.
    Comment 97: One commenter stated that a specific reference to 
``climate change'' should be added to the examples provided in the 
definition of ``changed circumstances.''
    Response: We added ``effects of climate change'' in the list of 
examples in the definition of ``changed circumstances.''
    Comment 98: One commenter stated that the Service's proposed 
regulatory changes to ``unforeseen circumstances'' omits the existing 
regulatory requirement that the Service cannot impose, without the 
permittee's consent, additional conservation or mitigation measures 
upon an incidental take permit permittee who is properly implementing 
their habitat conservation plan.
    Response: The revised regulations do not include revisions 
regarding ``changed'' or ``unforeseen circumstances.'' We inadvertently 
omitted retention of current Sec. Sec.  17.22(b)(5)(i)-(iii) and 
17.32(b)(5)(i)-(iii) in the proposed rule; this final rule corrects 
that error, so those paragraphs, which were missing from the proposed 
rule, will be retained via this final rule.

Comments on the Rulemaking Required Determinations

    The following comments pertain to our analyses in the preamble to 
the proposed rule in the Required Determinations portion, in which we 
addressed several statutes and Executive orders that govern the Federal 
rulemaking process.
    Comment 99: In regard to our determination under the Regulatory 
Flexibility Act (RFA), one commenter requested that we provide to the 
public for review and comment all the information developed throughout 
this process that led to our decision that the proposed regulatory 
revisions would not have a significant economic impact on a substantial 
number of small entities.
    Response: The information that we used to determine that the 
regulations will not have a significant economic impact is outlined in 
the proposed rule. As set forth in that document, we determined that we 
were not required to conduct an RFA analysis because this rule would 
not significantly change the way that we currently implement the 
section 10 program or expand the reach of species protections.
    Comment 100: One commenter expressed concern regarding statutory 
mandates, particularly the RFA and the National Environmental Policy 
Act (NEPA), asserting that we in essence exempted ourselves from 
compliance. The commenter stated that an RFA analysis would have 
demonstrated that many regulated entities cannot afford the permit 
application process or to sustain the performance levels required to 
participate in such agreements over the long term. The commenter 
asserted that not performing these analyses contributes to the 
Service's failure to comprehend the need for more affordable 
conservation activities that can substantially contribute to species 
recovery and conservation without causing financial hardship for those 
who participate.
    Response: We complied with all regulatory requirements in 
promulgating this rule. Regarding the RFA, we are not required to 
conduct an RFA analysis because we determined that this rule will not 
have a significant economic effect on a substantial number of small 
entities. To the extent that the regulatory revisions affect the 
documents required to support a permit application, they clarify the 
requirements for those documents but do not impose additional 
requirements that would result in significant increased costs to small 
entities. In regard to NEPA, we determined that a categorical exclusion 
from NEPA requirements applies to this rulemaking action because, when 
the Service processes an application for an enhancement of survival or 
incidental take permit, the decision is subject to the NEPA process at 
that time.
    In terms of creating more affordable opportunities for individuals 
to voluntarily participate in conservation, property owners can reduce 
costs by participating in a programmatic agreement instead of seeking 
to establish an agreement for an individual property.
    Comment 101: Several commenters stated that we must complete a NEPA 
analysis on the proposed rule, including issuing an environmental 
assessment or environmental impact statement that analyzes the impacts 
of the proposed action and alternatives, or determining that a 
categorical exclusion applies to this rulemaking.
    Response: As stated in the preamble to the proposed rule and also 
in this final rule, we have complied with NEPA by determining that the 
rule is covered by a categorical exclusion found at 43 CFR 46.210(i). 
We explained this determination in an environmental action statement 
that is posted in the docket for this rule.
    Comment 102: In regard to our request for comments specific to the 
Paperwork Reduction Act, one commenter provided recommendations 
regarding clarifying the form titles for the application forms, 
specifically to revise the form titles regarding applications for 
amendments. The commenter was also concerned that the language for 
justifying an amendment is not consistent with the No Surprises Rule.
    Response: The form titles will not be revised because there are not 
separate forms for amendments. Each form (3-200-54, 3-200-56, 3-200-59, 
and 3-200-60) can be used either to apply for a new permit or to amend 
or renew a permit as specified within Section E of each form. 
Additionally, we have removed the inconsistent language from our 
description of the forms.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
will review all significant rules. OIRA has determined that this rule 
is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 provides that 
regulations must be based on the best available science and that the 
rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with E.O. 13563, and in particular the requirement of retrospective 
analysis of existing rules to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory objectives.

Required Determinations

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act

[[Page 26089]]

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), whenever a Federal 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). However, no regulatory flexibility 
analysis is required if the head of an agency, or their designee, 
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. 
We have determined that this rule would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons.
    The rule revises the implementing regulations to clarify existing 
statutory requirements that govern the Service's processing of 
applications for ESA section 10(a) permits. The rule does not 
significantly change the way that we currently implement the section 10 
program or expand the reach of species protections. To the extent that 
the revisions relate to the documents required to support a permit 
application, the revisions clarify the requirements for those documents 
but do not impose additional requirements that would result in 
significant increased costs to small entities. Even if some increased 
costs are associated with meeting requirements in the rule, we 
anticipate that those costs will be offset by the revisions that 
streamline and clarify the application and decision-making process, 
which will save applicants and permittees time and money. Therefore, no 
external entities, including small businesses, small organizations, or 
small governments, will experience significant economic impacts from 
this rule. Because we certify that this rule will not have a 
significant economic impact on a substantial number of small entities, 
a regulatory flexibility analysis is not 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.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this rule would not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this 
rule will not impose a cost of $100 million or more in any given year 
on local or State governments or private entities. A small government 
agency plan is not required. As explained above, small governments will 
not be affected because the rule does not impose additional 
requirements on any city, county, or other local municipality.
    (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; that is, this rule is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act. This rule will impose 
no obligations on State, local, or Tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. This rule does not constitute a 
``taking'' of private property interests, nor will it directly affect 
private property. A takings implication assessment is not required 
because this rule: (1) will not effectively compel a property owner to 
suffer a physical invasion of property; and (2) will not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This rule substantially advances a legitimate government 
interest (conservation and recovery of endangered species, threatened 
species, and non-listed species of conservation concern) and will not 
present a barrier to all reasonable and expected beneficial use of 
private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this rule will have significant federalism effects and have 
determined that a federalism summary impact statement is not required. 
This rule pertains only to those entities voluntarily applying for a 
permit under section 10 of the ESA and will not have substantial direct 
effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

    This rule will not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988. This rule clarifies the needs associated with development 
of the required documents to support an application for a permit under 
section 10 of the ESA.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we considered the possible effects 
of this rule on federally recognized Indian Tribes. We will continue to 
collaborate/coordinate with Tribes on issues related to federally 
listed species and their habitats, and we will provide notification of 
this rule to federally recognized Tribes prior to publication. See 
Joint Secretarial Order 3206 (``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act,'' June 
5, 1997).

Paperwork Reduction Act of 1995 (PRA)

    This rule contains existing and new information collections. All 
information collections require approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA, 44 
U.S.C. 3501 et seq.). We may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. The OMB has reviewed and approved 
the information collection requirements associated with permit 
applications, reports, and related information collections associated 
with native endangered and threatened species and assigned the OMB 
Control Number 1018-0094 (expires 02/29/2024, and in accordance with 5 
CFR 1320.10, an agency may continue to conduct or sponsor this 
collection of information while the submission is pending at OMB).
    In accordance with the PRA and its implementing regulations at 5 
CFR 1320.8(d)(1), we provided the general public and other Federal 
agencies with an opportunity to comment on our proposal to revise OMB 
Control Number 1018-0094. This input helped us assess the impact of our 
information collection requirements and minimize the public's reporting 
burden. It also helped the public understand our information collection 
requirements and provide the requested data in the desired format.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the 
public and other Federal agencies to comment on any aspect of this 
proposed information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper

[[Page 26090]]

performance of the functions of the agency, including whether or not 
the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Comments that you submit in response to this proposed rulemaking 
are a matter of public record. Before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so.
    The Endangered Species 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 ESA authorizes us to issue 
permits for otherwise prohibited activities in order to enhance the 
propagation or survival of the affected species. Section 10(a)(1)(B) of 
the ESA authorizes us to issue permits if the taking is incidental to 
the carrying out of an otherwise lawful activity. ESA 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.
    All Service permit applications are tailored to a specific activity 
based on the requirements for specific types of permits. We collect 
standard identifier information for all applications for permits, such 
as the name of the applicant and the applicant's address, telephone 
numbers, if applicable, tax identification number, email address, 
description of activity being requested under the ESA, and, after the 
permit has been issued, a report (description of activity that was 
conducted under that permit). Standardization of general information 
common to the application forms makes the filing of applications easier 
for the public and helps to expedite our review.
    The information that we collect is the minimum necessary for us to 
determine if the applicant/permittee meets, or continues to meet, 
permit issuance requirements. Respondents submit application forms 
periodically as needed. Submission of reports is generally on an annual 
basis, but for some activities (such as activities associated with sea 
turtles), may be on a more frequent basis, as needed (see those 
specific reporting forms). This information collection request includes 
minor modifications to the layout and content of the currently approved 
application forms so that they:
    (a) Are easier to understand and complete,
    (b) Minimize the number of completed pages the applicant must 
submit, and
    (c) Accommodate future electronic permitting in the Service's new 
ePermits System.
    In addition to the application forms, permit holders must submit 
the reports in accordance with their permits issued based on 50 CFR 
part 17. Some Service annual reports associated with permits are in the 
3-202 series of forms, each tailored to a specific activity based on 
the requirements for specific types of permits. In some cases, we 
developed specific information collection forms to facilitate and 
standardize the reporting and review, and to facilitate development of 
electronic forms and electronic reporting and retrieval of that 
information.
    Annual reporting of permit compliance is required in most cases 
under the authority of section 10(a)(1)(A) and 10(a)(1)(B) of the ESA 
and its implementing regulations in 50 CFR part 17. These reports allow 
us to evaluate the proper implementation of the conservation agreement 
or plan, ensure take authorization has not been exceeded, formulate 
further research, and develop and adjust management and recovery plans 
for the species.
    The proposed revisions to existing and new reporting and/or 
recordkeeping requirements identified below require approval by OMB:
    (1) (REVISED) Application--FWS Form 3-200-54, ``Enhancement of 
Survival Permits Associated with Conservation Benefit Agreements''--
This application can be used for a single species or multiple species. 
Agreements may vary widely in size, scope, structure, and complexity, 
and in the activities they address. We revised this application form to 
align with the regulation revisions, which includes referencing one 
``conservation benefit agreement'' instead of the two prior agreement 
types, adding a question asking if the applicant requests to return to 
baseline upon permit expiration, clarifying language regarding 
amendments, and adding clarifying language regarding authorized agents.
    (2) (NEW) Application Amendments--Enhancement of Survival Permits 
(FWS Form 3-200-54)--Permittees may request amendments to a permit, or 
the Service may amend a permit for just cause upon a written finding of 
necessity. Amendments comprise changes to the permit authorization or 
conditions. This includes, but is not limited to, an increase or 
decrease in the estimated amount of take or changes in ownership of a 
project. The permittee must apply for amendments to the permit by 
submitting a description of the modified activity and the changed 
impacts. These are considered substantive amendments and incur a fee. 
Permittees do not require a new permit if there is a change in the 
legal individual or business name, or in the mailing address of the 
permittee. A permittee is required to notify the issuing office within 
10 calendar days of such change. This provision does not authorize any 
change in location of the conduct of the permitted activity when 
approval of the location is a qualifying condition of the permit.
    (3) (NEW) Permit Transfers--Enhancement of Survival Permits--
Permits issued under these regulations 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 permitted, the deceased 
permittee's legal representative and the proposed transferee. 
Transferring permits does not incur a fee.
    (4) (REVISED) Conservation Benefit Agreement--As part of the 
application process associated with Form 3-200-54, applicants must 
submit a conservation benefit agreement. A conservation benefit 
agreement must include the following:
    i. Conservation Measures--A complete description of the 
conservation measure or measures, including the location of the 
activity or activities to be covered by the permit and their intended 
outcome for the covered species.
    ii. Covered Species--The common and scientific names of the covered

[[Page 26091]]

species for which the applicant will conduct conservation measures and 
may need authorization for take.
    iii. Goals and Objectives--The measurable biological goals and 
objectives of the conservation measures in the agreement.
    iv. Enrollment Baseline--The baseline condition of the property or 
area to be enrolled.
    v. Net Conservation Benefit--A description of how the measures are 
reasonably expected to improve each covered species' existing baseline 
condition on the enrolled property and result in a net conservation 
benefit as defined at Sec.  17.3.
    vi. Monitoring--The steps the applicant will take to monitor and 
adaptively manage to ensure the goals and objectives of the agreement 
are met, the responsibilities of all parties are carried out, and the 
agreement will be properly implemented.
    vii. Neighboring Property Owners--A description of the enrollment 
process to provide neighboring property owners take coverage under 50 
CFR 17.22(c)(5)(ii) or 17.32(c)(5)(ii), if applicable.
    viii. Return to Baseline Condition--The applicant's choice between 
including authorization to return enrolled property to baseline 
condition or forgoing that authorization. For applicants seeking 
authority to return to baseline condition, a description of steps that 
may be taken to return the property to baseline condition and measures 
to reduce the effects of the take to the covered species.
    ix. Additional Actions--Any other measures that the Director may 
require as necessary or appropriate in order to meet the issuance 
criteria in 50 CFR 17.22(c)(2) or 17.32(c)(2) or to avoid conflicts 
with other Service conservation efforts.
    (5) (REVISED) Application--FWS Form 3-200-56, ``Incidental Take 
Permits Associated with Habitat Conservation Plans''--Those who believe 
their otherwise-lawful activities will result in the ``incidental 
take'' of a listed wildlife species may choose to seek a permit. The 
purpose of the incidental take permit is to exempt non-Federal 
entities--such as States, local governments, businesses, corporations, 
and private landowners--from the prohibitions of section 9. The 
permittee also has assurances from the Service through the ``No 
Surprises'' regulation. We made several revisions to the application 
form to be consistent with the regulations, which include clarifying 
amendments and removing any language regarding implementing agreements.
    (6) (NEW) Application Amendments--Incidental Take (FWS Form 3-200-
56)--Amendments to a permit may be requested by the permittee, or the 
Service may amend a permit for just cause upon a written finding of 
necessity. Amendments comprise changes to the permit authorization or 
conditions. This includes, but is not limited to, an increase or 
decrease in the requested amount of take or changes in ownership of a 
project. The permittee must apply for amendments to the permit by 
submitting a description of the modified activity and the changed 
impacts. These changes are considered substantive and incur a fee. A 
permittee is not required to obtain a new permit if there is a change 
in the legal individual or business name, or in the mailing address of 
the permittee. A permittee is required to notify the issuing office 
within 10 calendar days of such change. This provision does not 
authorize any change in location of the conduct of the covered activity 
when approval of the location is a qualifying condition of the permit.
    (7) (NEW) Permit Transfers--Incidental Take--Permits issued under 
these regulations 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 permitted, the deceased permittee's legal 
representative and the proposed transferee. Transferring permits does 
not incur a fee.
    (8) (REVISED) Habitat Conservation Plan--As part of the application 
process, applicants are also required to submit a habitat conservation 
plan with their completed Form 3-200-56. A habitat conservation plan 
must include the following:
    i. Project Description--A complete description of the project 
including purpose, location, timing, and proposed covered activities.
    ii. Covered Species--As defined in Sec.  17.3, common and 
scientific names of species sought to be covered by the permit, as well 
as the number, age, and sex of those individuals, if known.
    iii. Goals and Objectives--The measurable biological goals and 
objectives of the conservation plan.
    iv. Anticipated Take--Expected timing, geographic distribution, 
type and amount of take, and the likely impact of take on the species.
    v. Conservation Program, that explains the:
     Conservation measures that will be taken to minimize and 
mitigate the impacts of the incidental take for all covered species 
commensurate with the taking;
     Roles and responsibilities of all entities involved in 
implementation of the conservation plan;
     Changed circumstances and the planned responses in an 
adaptive management plan; and
     Procedures for dealing with unforeseen circumstances.
    vi. Conservation Timing--The timing of mitigation relative to the 
incidental take of covered species.
    vii. Permit Duration--The rationale for the requested permit 
duration.
    viii. Monitoring--Monitoring of the effectiveness of the mitigation 
and minimization measures, progress towards achieving the biological 
goals and objectives, and permit compliance.
    ix. Funding Needs and Sources--An accounting of the costs for 
properly implementing the conservation plan and the sources and methods 
of funding.
    x. Alternative Actions--The alternative actions to the taking the 
applicant considered and the reasons why such alternatives are not 
being used.
    xi. Additional Actions--Other measures that the Director requires 
as necessary or appropriate, including those necessary or appropriate 
to meet the issuance criteria or other statutory responsibilities of 
the Service.
    (9) (REVISED) Form 3-200-59, ``Recovery Permit Application Form''--
This application form is used to apply for a permit for any act 
otherwise prohibited by section 9 for scientific purposes or to enhance 
the propagation or survival of the affected species.
    The data acquired from the issuance of recovery permits is valuable 
to the decisions that the Service and its partners make regarding land 
acquisition, land management, consultations under section 7 of the ESA, 
recovery plans, and downlisting or delisting.Data from these federally 
issued permits is used on a landscape level. Without recovery permits, 
our basic knowledge about the abundance, stability, and resiliency of 
populations, habitat use and requirements, geographic ranges, and 
diseases of federally listed species would be much more limited. 
Regulations at 50 CFR 13.25(a) and (b) prohibit permit transfers for 
this permit type.
    We revised Form 3-200-59 to fix typos, incorporate references to 
ePermits, and update links to the Service website.
    (10) (REVISED) Form 3-200-60, Interstate Commerce Application 
Form''--This application form is used to apply for an interstate 
commerce permit that allows for take otherwise prohibited by section 9 
of the ESA. Interstate commerce permits authorize the

[[Page 26092]]

purchase and sale of listed species across State lines. For wildlife, 
the buyer obtains interstate commerce permits are obtained by the 
buyer; for plants, the seller obtains the permits. Regulations at 50 
CFR 13.25(a) and (b) prohibit permit transfers for this permit type.
    We revised Form 3-200-60 to fix typos, incorporate references to 
ePermits, update links to the Service website, and add information in 
section E (question A7) to ensure that applicants provide information 
necessary for the permit decision as required by regulation.
    (11) (NEW) Application Amendments (FWS Forms 3-200-59 and 3-200-
60)--The permittee may request amendments to a permit. Amendments 
comprise changes to the permit authorization or conditions. Amendments 
include, but are not limited to, an increase or decrease in the 
estimated amount of take, changes in species or numbers of species 
requested, or a change in the geographic location where take is 
authorized. The permittee must apply for amendments to the permit by 
submitting a description of the modified activity and the changed 
impacts. These are considered substantive amendments and incur a fee. A 
permittee is not required to obtain a new permit if there is a change 
in the legal individual or business name, or in the mailing address of 
the permittee. A permittee must notify the issuing office within 10 
calendar days of such change. This provision does not authorize any 
change in location of the conduct of the permitted activity when 
approval of the location is a qualifying condition of the permit.
    (12) (REVISED) Form 3-2530, ``California/Nevada/Klamath Basin, OR, 
Recovery Permit Annual Summary Report Form''--We propose to change the 
``TE'' field to ``permit number'' on each page of the form.
    We also propose to renew the existing information collection 
requirements identified below:
    (1) Annual Reports (Enhancement of Survival Permit Associated with 
Conservation Benefit Agreements)--Annual reports associated with 
conservation benefit agreements are non-form requirements and are 
required by Federal permitting regulations under 50 CFR 13.45, unless 
otherwise specified in the permit. Reports contain information 
regarding the implementation of conservation measures and the amount of 
take that may have occurred during the reporting year, both of which 
are essential to ensuring compliance with the permit. Permittees may 
submit the information in any format they choose.
    (2) Notifications (Take)--Private landowners who have an 
enhancement of survival permit (and accompanying conservation benefit 
agreement) must notify us if their land management activities 
incidentally take a listed or candidate species covered under their 
permit.
    (3) Notifications (Change in Property Owner)--We issue enhancement 
of survival permits to the landowners, and their name is printed on the 
permit. If ownership of the property changes, this permit does not 
automatically transfer to the new property owner. Therefore, we ask the 
permittee to notify us if there is a change in property ownership so 
that we may work with the new property owner to determine if they want 
to continue the agreement and permit and then update the permit as 
appropriate.
    (4) Annual Reports (Habitat Conservation Plans)--Annual reports 
associated with conservation plans are non-form requirements and are 
required by Federal permitting regulations under 50 CFR 13.45, unless 
otherwise specified in the permit. Reports contain information 
regarding the implementation of the habitat conservation plan, 
including carrying out the minimization and mitigation measures and the 
amount of take that has occurred, both of which are essential to 
ensuring compliance with the permit. Permittees may submit the 
information in any format they choose.
    (5) Annual Reports (Recovery and Interstate Commerce)--Annual 
reports associated with recovery permits are non-form requirements, 
except for a few species where there are taxa-specific OMB-approved 
reporting forms. Interstate commerce permits require reports upon the 
receipt of wildlife. Interstate commerce's annual sales of plants also 
require reports. Both the recovery permits and interstate commerce 
permits require reporting as required by Federal permitting regulations 
under 50 CFR 13.45, unless otherwise specified in the permit. Recovery 
permit reports contain information regarding the activities conducted 
under the permit and the amount of take that has occurred, both of 
which are essential to ensuring compliance with the permit. Permittees 
may submit the information in any format they choose unless an OMB-
approved form exists for the species for which they are reporting; 
otherwise, they may elect to use a taxa-specific form if is available.
    (6) Request to Revise List of Authorized Individuals--When a new, 
renewed, or amended permit is issued, the list of authorized 
individuals (LAI) is typically at the end of a permit on Regional 
Office letterhead. The LAI captures those expressly authorized to 
perform otherwise prohibited activities on an active permit.
    When a permittee requests changes to the individuals authorized on 
a permit, the Field Office reviews the qualifications. It then issues 
an updated standalone LAI with the new and current qualified 
individuals. Issuance of a standalone LAI is considered an 
administrative change to maintain an up-to-date list of those 
authorized for the permit's species/activities. Since there are no 
revisions to the previously authorized species or geographic localities 
on the permit itself, the action is purely a streamlining measure for 
the regions to manage the high volume of personnel changes without 
issuing an amendment or new permit.
    (7) Notification (Escape of Wildlife)--If a recovery or interstate 
commerce permit authorizes activities that include keeping wildlife in 
captivity, for health and safety reasons, we ask the permittee to 
immediately notify us if any of the captive wildlife escape.
    (8) Annual Reports Associated with Native Endangered and Threatened 
Species Under the ESA--We use the following annual report forms 
specific to particular species for activities associated with native 
endangered and threatened species permits under the ESA. The Service 
designed the forms to facilitate the electronic reporting specifically 
for each species. The Service will use the reported data to evaluate 
the success of the permitted project, formulate further research, and 
develop and adjust management and recovery plans for the species. The 
data will also inform 5-year reviews and species status assessments 
conducted under the ESA.
     Form 3-202-55b, ``U.S. Fish and Wildlife Service 
Geographic Area: Midwestern Bat Reporting Form'';
     Form 3-202-55c, ``U.S. Fish and Wildlife Service 
Geographic Area: Southeastern Bat Reporting Form'';
     Form 3-202-55d, ``U.S. Fish and Wildlife Service 
Geographic Area: Northeastern Bat Reporting Form'';
     Form 3-202-55e, ``U.S. Fish and Wildlife Service 
Geographic Area: Plains/Rockies Bat Reporting Form'';
     FWS Form 3-202-55f, ``Non-Releasable Sea Turtle Annual 
Report'';
     FWS Form 3-202-55g, ``Sea Turtle Rehabilitation'';
     Form 3-2523, ``Midwest Geographic Area: Freshwater Mussel 
Reporting Form'';

[[Page 26093]]

     Form 3-2526, ``Midwest Geographic Area: Bumble Bee 
Reporting Form'';
     Form 3-2530, ``California/Nevada/Klamath Basin, OR, 
Recovery Permit Annual Summary Report Form'';
     Form 3-2532, ``U.S. Fish and Wildlife Service Geographic 
Area: Alaska Bat Reporting Form'';
     Form 3-2533, ``U.S. Fish and Wildlife Service Geographic 
Area: Northwestern Bat Reporting Form''; and
     Form 3-2534, ``U.S. Fish and Wildlife Service Geographic 
Area: Western Bat Reporting Form''.
    Copies of the draft forms are available to the public by submitting 
a request to the Service Information Collection Clearance Officer using 
one of the methods identified in ADDRESSES.
    Title of Collection: Federal Fish and Wildlife Permit Applications 
and Reports--Native Endangered and Threatened Species; 50 CFR parts 10, 
13, and 17.
    OMB Control Number: 1018-0094.
    Form Numbers: FWS Forms 3-200-54, 3-200-56, 3-200-59, 3-200-60, 3-
202-55a through 3-202-55g, 3-2523, 3-2526, 3-2530, and 3-2532 through 
3-2534.
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Individuals; private sector; and 
State/local/Tribal governments.
    Total Estimated Number of Annual Respondents: 5,380.
    Total Estimated Number of Annual Responses: 5,380.
    Estimated Completion Time per Response: Varies from 30 minutes to 
2,080 hours, depending on activity.
    Total Estimated Number of Annual Burden Hours: 220,660.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion for applications; annually or 
on occasion for reports and notifications.
    Total Estimated Annual Nonhour Burden Cost: $19,415,460 (primarily 
associated with application processing and administrative fees).
    On February 9, 2023, we published in the Federal Register (88 FR 
8380) a proposed rule (RIN 1018-BF99) that announced our intention to 
request OMB approval of the revisions to this collection explained 
above and the simultaneous renewal of OMB Control No. 1018-0094. In 
that proposed rule, we solicited comments for 60 days on the 
information collections in this submission, ending on April 10, 2023. 
Summaries of comments addressing the information collections contained 
in this rule, as well as the agency response to those comments, can be 
found in the Summary of Comments and Responses section of this rule, as 
well as in the information collection request submitted to OMB on the 
RegInfo.gov website. Send your written comments and suggestions on this 
information collection by the date indicated in DATES to the Service 
Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 
22041-3803 (mail); or by email to [email protected]. Please reference 
OMB Control Number 1018-0094 in the subject line of your comments.

National Environmental Policy Act

    We analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), the 
Department of the Interior regulations on Implementation of NEPA (43 
CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 
8).
    We find that the categorical exclusion found at 43 CFR 46.210(i) 
applies to the regulation changes. At 43 CFR 46.210(i), the Department 
of the Interior has found that the following categories of actions 
would not individually or cumulatively have a significant effect on the 
human environment and are, therefore, categorically excluded from the 
requirement for completion of an environmental assessment or 
environmental impact statement:

    Policies, directives, regulations, and guidelines: that are of 
an administrative, financial, legal, technical, or procedural 
nature; or whose environmental effects are too broad, speculative, 
or conjectural to lend themselves to meaningful analysis and will 
later be subject to the NEPA process, either collectively or case-
by-case.

    This exclusion applies to this rulemaking action because, when the 
Service processes an application for an enhancement of survival permit 
or incidental take permit, the decision is subject to the NEPA process 
at that time.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. The revised 
regulations are not expected to affect energy supplies, distribution, 
or use. Therefore, this action is a not a significant energy action, 
and no statement of energy effects is required.

Authority

    We issue this rule under the authority of the Endangered Species 
Act, as amended (16 U.S.C. 1531 et seq.).

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, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

    Accordingly, we amend parts 13 and 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 13--GENERAL PERMIT PROCEDURES

0
1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a, 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.

Subpart C--Permit Administration

0
2. Amend Sec.  13.23 by revising the section heading and paragraph (b) 
to read as follows:


Sec.  13.23   Amendments of permits.

* * * * *
    (b) Service amendment. The Service reserves the right to amend any 
permit for just cause at any time during its term, upon written finding 
of necessity, provided that the amendment of a permit issued under 
Sec.  17.22(b) or (c) of this subchapter will be consistent with the 
requirements of Sec.  17.22(b)(5) or (c)(5) of this subchapter and 
amendment of a permit issued under Sec.  17.32(b) or (c) of this 
subchapter will be consistent with the requirements of Sec.  
17.32(b)(5) or (c)(5) of this subchapter.
* * * * *

0
3. Amend Sec.  13.24 by revising the section heading and paragraph (c) 
introductory text to read as follows:


Sec.  13.24   Rights of succession by certain persons.

* * * * *
    (c) In the case of permits issued under the regulations in this 
subchapter in Sec.  17.22(b) and (c), Sec.  17.32(b) and (c), or 50 CFR 
part 22, the successor's authorization under the permit is also subject 
to our determination that:
* * * * *

0
4. Amend Sec.  13.25 by revising paragraphs (b) and (c) and the 
introductory text of paragraph (e) to read as follows:

[[Page 26094]]

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

* * * * *
    (b) Permits issued under the regulations in this subchapter in 
Sec.  17.22(b) and (c), Sec.  17.32(b) and (c), or 50 CFR part 22 may 
be transferred to a successor subject to our determination that the 
proposed transferee:
    (1) Meets all of the qualifications under this part for holding a 
permit;
    (2) Has provided adequate written assurances of sufficient funding 
for the conservation measures, conservation plan, or conservation 
benefit agreement, and will implement the relevant terms and conditions 
of the permit, including any outstanding minimization and mitigation 
requirements; and
    (3) Has provided other information that we determine is relevant to 
the processing of the submission.
    (c) In the case of the transfer of property subject to an agreement 
and permit issued under Sec.  17.22(c) or Sec.  17.32(c) of this 
subchapter, 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.
* * * * *
    (e) In the case of permits issued under Sec.  17.22(b) and (c) or 
Sec.  17.32(b) and (c) of this subchapter to a State, Tribal, or local 
government entity, a person is under the direct control of the 
permittee where:
* * * * *

0
5. Amend Sec.  13.28 by revising paragraph (a)(5) to read as follows:


Sec.  13.28   Permit revocation.

    (a) * * *
    (5) Except for permits issued under Sec.  17.22(b) and (c) or Sec.  
17.32(b) and (c) of this subchapter, the population(s) of the wildlife 
or plant that is the subject of the permit declines to the extent that 
continuation of the permitted activity would be detrimental to 
maintenance or recovery of the affected population.
* * * * *

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
6. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

Subpart A--Introduction and General Provisions

0
7. Amend Sec.  17.2 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through 
(f); and
0
c. Adding a new paragraph (b).
    The revision and addition read as follows:


Sec.  17.2   Scope of regulations.

    (a) The regulations of this part apply only to endangered and 
threatened wildlife and plants, except for Sec.  17.22(b) and (c) and 
Sec.  17.32(b) and (c), which may apply to wildlife and plant species 
that are not listed as endangered or threatened if they meet the 
definition of ``covered species.''
    (b) Permits authorized under this part include:
    (1) Scientific purposes or enhancement of propagation or survival 
permits for take associated with research, captive propagation 
programs, or conservation activities to enhance and recover populations 
of covered species; and
    (2) Incidental take permits for take that is incidental to 
otherwise lawful activities.
* * * * *

0
8. Amend Sec.  17.3 by:
0
a. Revising the definition for ``Adequately covered'';
0
b. Adding in alphabetical order definitions for ``Applicant'' and 
``Baseline condition'';
0
c. Revising the definition for ``Changed circumstances'';
0
d. Adding in alphabetical order definitions for ``Covered activity'', 
``Covered species'', ``Net conservation benefit'', ``Permit area'', 
``Permittee'', ``Plan area'', ``Programmatic permit associated with a 
conservation benefit agreement'', ``Programmatic permit associated with 
a conservation plan'', and
0
e. Revising the definition for ``Property owner''.
    The revisions and additions read as follows:


Sec.  17.3   Definitions.

* * * * *
    Adequately covered means, with respect to species listed pursuant 
to section 4 of the Act, that a proposed conservation plan has 
satisfied the permit issuance criteria under section 10(a)(2)(B) of the 
Act for the species covered by the plan, and, with respect to non-
listed species, that a proposed conservation plan has satisfied the 
permit issuance criteria under section 10(a)(2)(B) of the Act that 
would apply if the non-listed species covered by the plan were listed. 
For the Service to cover a species under a conservation plan, it must 
be identified as a covered species on the section 10(a)(1)(B) permit.
* * * * *
    Applicant means the person(s), as defined in the Act, who is named 
and identified on the application and, by signing the application, 
assumes the responsibility for implementing the terms of an issued 
permit. Other parties including, without limitations, affiliates, 
associates, subsidiaries, corporate families, and assigns of an 
applicant are not applicants or permittees unless, in accordance with 
applicable regulations, an application or permit has been amended to 
include them or unless a permit has been transferred consistent with 
Sec.  13.25.
* * * * *
    Baseline condition means population estimates and distribution or 
habitat characteristics across the enrolled property that currently 
sustains seasonal or permanent use by the covered species at the time a 
conservation benefit agreement is executed by the Service and the 
property owner, or by a programmatic permit holder and the property 
owner, under Sec. Sec.  17.22(c) and 17.32(c) of this part, as 
applicable.
* * * * *
    Changed circumstances are changes in circumstances affecting a 
species or geographic area covered by a conservation plan that can 
reasonably be anticipated by the plan's developers and the Service for 
which responses can be identified in a conservation plan (e.g., the 
listing of new species, effects of climate change, or a fire or other 
natural catastrophic event in areas prone to those events).
* * * * *
    Covered activity means an action or series of actions that causes 
take of a covered species and for which take is authorized by a permit 
under Sec.  17.22(b) and (c) or Sec.  17.32(b) and (c), as applicable.
    Covered species means any species that are included in a 
conservation plan or agreement and for which take is authorized through 
an incidental take or enhancement of survival permit.
    (1) Covered species include species listed as endangered or 
threatened.
    (2) Covered species may include species that are proposed or 
candidates for listing, at-risk species, or species that have other 
Federal protective status. An at-risk species is a non-listed species 
the status of which is declining and that is at risk of becoming a 
candidate for listing under the Act; at-risk species may include, but 
are not limited to, State-listed species, species identified by States 
as species of greatest

[[Page 26095]]

conservation need, or species with State heritage ranks of G1 or G2.
    (3) An incidental take or enhancement of survival permit need not 
include a listed species.
* * * * *
    Net conservation benefit means the cumulative benefit provided 
through implementation of a conservation benefit agreement that is 
designed to improve the existing baseline condition of a covered 
species by reducing or eliminating threats, or otherwise improving the 
status of covered species, minus the adverse impacts to covered species 
from ongoing land or water use activities and conservation measures, so 
that the condition of the covered species or the amount or quality of 
its habitat is reasonably expected to be greater with implementation of 
the agreement than without it. If the Service determines that the 
species and habitat are already adequately managed to the benefit of 
the species, a net conservation benefit will be achieved if the 
property owner commits to continuing the species' management for a 
specified period of time, including addressing any likely future 
threats that are under the property owner's control, with the 
anticipation that the population will increase, habitat quality will 
improve, or both.
* * * * *
    Permit area means the geographic area where the take permit 
applies. The permit area must be delineated in the permit and be 
included within a conservation plan or agreement.
    Permittee means the named applicant who has been issued a permit 
and who assumes responsibility for implementing the permit. Other 
parties including, without limitation, affiliates, associates, 
subsidiaries, corporate families, and assigns of a permittee are not 
permittees unless the permit has been amended or transferred consistent 
with Sec.  13.25.
    Plan area means the geographic area where covered activities, 
including mitigation, described in the conservation plan associated 
with an incidental take permit may occur. The plan area must be 
identified in the conservation plan.
* * * * *
    Programmatic permit associated with a conservation benefit 
agreement means an enhancement of survival permit issued under Sec.  
17.22(c) or Sec.  17.32(c), with an accompanying conservation benefit 
agreement that allows at least one named permittee to extend the 
incidental take authorization to enrolled property owners who are 
capable of carrying out and agree to properly implement the 
conservation benefit agreement.
    Programmatic permit associated with a conservation plan means an 
incidental take permit issued under Sec.  17.22(b) or Sec.  17.32(b), 
with an accompanying conservation plan that allows at least one named 
permittee to extend the incidental take authorization to participants 
who are capable of carrying out and agree to properly implement the 
conservation plan.
* * * * *
    Property owner, with respect to conservation benefit agreements and 
plans outlined under Sec.  17.22(b) and (c) and Sec.  17.32(b) and (c), 
means a person or other entity with a property interest (including 
owners of rights to water or other natural resources) sufficient to 
carry out the proposed activities, subject to applicable State, Tribal, 
and Federal laws and regulations.
* * * * *

Subpart C--Endangered Wildlife

0
9. Amend Sec.  17.22 by:
0
a. Revising the section heading and paragraphs (b), (c), and (d); and
0
b. Removing paragraph (e).
    The revisions read as follows:


Sec.  17.22   Permits for endangered species.

* * * * *
    (b)(1) Application requirements for an incidental take permit. A 
person seeking authorization for incidental take that would otherwise 
be prohibited by Sec.  17.21(c) submits Form 3-200-56, a processing fee 
(if applicable), and a conservation plan. The Service will process the 
application when the Director determines the application is complete. A 
conservation plan must include the following:
    (i) Project description. A complete description of the project 
including purpose, location, timing, and proposed covered activities.
    (ii) Covered species. As defined in Sec.  17.3, common and 
scientific names of species sought to be covered by the permit, as well 
as the number, age, and sex, if known.
    (iii) Goals and objectives. The measurable biological goals and 
objectives of the conservation plan.
    (iv) Anticipated take. Expected timing, geographic distribution, 
type and amount of take, and the likely impact of take on the species.
    (v) Conservation program, that explains the:
    (A) Conservation measures that will be taken to minimize and 
mitigate the impacts of the incidental take for all covered species 
commensurate with the taking;
    (B) Roles and responsibilities of all entities involved in 
implementation of the conservation plan;
    (C) Changed circumstances and the planned responses in an adaptive 
management plan; and
    (D) Procedures for dealing with unforeseen circumstances.
    (vi) Conservation timing. The timing of mitigation relative to the 
incidental take of covered species.
    (vii) Permit duration. The rationale for the requested permit 
duration.
    (viii) Monitoring. Monitoring of the effectiveness of the 
mitigation and minimization measures, progress towards achieving the 
biological goals and objectives, and permit compliance. The scope of 
the monitoring program should be commensurate with the scope and 
duration of the conservation program and the project impacts.
    (ix) Funding needs and sources. An accounting of the costs for 
properly implementing the conservation plan and the sources and methods 
of funding.
    (x) Alternative actions. The alternative actions to the taking the 
applicant considered and the reasons why such alternatives are not 
being used.
    (xi) Additional actions. Other measures that the Director requires 
as necessary or appropriate, including those necessary or appropriate 
to meet the issuance criteria or other statutory responsibilities of 
the Service.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (b)(1) of this section, the Director will 
decide whether a permit should be issued. The Director will consider 
the general issuance criteria in Sec.  13.21(b) of this subchapter, 
except for Sec.  13.21(b)(4). In making a decision, the Director will 
consider the anticipated duration and geographic scope of the 
applicant's planned activities, including the amount of covered 
species' habitat that is involved and the degree to which covered 
species and their habitats are affected. The Director will issue the 
permit if the Director finds:
    (i) The taking will be incidental to, and not the purpose of, 
carrying out an otherwise lawful activity.
    (ii) The applicant will, to the maximum extent practicable, 
minimize and mitigate the impacts of the taking.
    (iii) The applicant will ensure that adequate funding for the 
conservation plan implementation will be provided.
    (iv) The applicant has provided procedures to deal with unforeseen 
circumstances.
    (v) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild.

[[Page 26096]]

    (vi) The measures and conditions, if any, required under paragraph 
(b)(1)(xi) of this section will be met.
    (vii) The applicant has provided any other assurances the Director 
requires to ensure that the conservation plan will be implemented.
    (3) Permit conditions. In addition to the general conditions set 
forth in part 13 of this subchapter, every permit issued under the 
regulations in this section will contain terms and conditions that the 
Director deems necessary or appropriate to carry out the purposes of 
the permit and the conservation plan including, but not limited to, 
additional conservation measures, if any, that may be required pursuant 
to paragraph (b)(1)(xi) of this section, specified deadlines, and 
monitoring and reporting requirements deemed necessary for determining 
whether the permittee is complying with those terms and conditions. The 
Director will rely upon existing reporting requirements to the maximum 
extent practicable.
    (4) Permit duration and effective date. In determining the duration 
of a permit, the Director will consider the duration of the activities 
for which coverage is requested; the time necessary to fully minimize 
and mitigate the impacts of the taking; and uncertainties related to 
the impacts of the taking, success of the mitigation, and external 
factors that could affect the success of the conservation plan.
    (i) Permits issued under this paragraph (b) become effective for 
listed covered species upon the date the permittee signs the incidental 
take permit, which must occur within 90 calendar days of issuance. For 
non-listed covered species, the permit's take authorization becomes 
effective upon the effective date of the species' listing provided the 
permittee signed the permit within 90 calendar days of issuance and has 
properly implemented the conservation plan.
    (ii) The permit expires on the date indicated on the face of the 
permit.
    (5) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (b)(5) apply 
only to incidental take permits issued in accordance with paragraph 
(b)(2) of this section where the conservation plan is being properly 
implemented and the permittee is properly complying with the incidental 
take permit. The assurances apply only with respect to species covered 
by the conservation plan. These assurances do not apply to Federal 
agencies or to incidental take permits issued prior to March 25, 1998. 
The assurances provided in incidental take permits issued prior to 
March 25, 1998, remain in effect, and those permits will not be 
revised.
    (i) Changed circumstances provided for in the plan. If additional 
conservation and mitigation measures are deemed necessary to respond to 
changed circumstances and were provided for in the plan's operating 
conservation program, the permittee will implement the measures 
specified in the plan.
    (ii) Changed circumstances not provided for in the plan. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and were not provided for in the 
plan's operating conservation program, the Director will not require 
any conservation and mitigation measures in addition to those provided 
for in the plan without the consent of the permittee, provided the 
Director determines that the plan is being properly implemented.
    (iii) Unforeseen circumstances. (A) In negotiating a response to 
unforeseen circumstances, the Director will not require the commitment 
of additional land, water, or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level otherwise agreed upon for the species covered by the 
conservation plan without the consent of the permittee.
    (B) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, the Director may 
require additional measures of the permittee where the conservation 
plan is being properly implemented, but only if such measures:
    (1) Are limited to modifications within conserved habitat areas, if 
any, or to the conservation plan's operating conservation program for 
the affected species; and
    (2) Maintain the original terms of the conservation plan to the 
maximum extent possible.
    (3) Additional conservation and mitigation measures will not 
involve the commitment of additional land, water, or financial 
compensation, or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the original terms of the conservation plan, without the consent 
of the permittee.
    (C) The Director will have the burden of demonstrating that 
unforeseen circumstances exist, using the best scientific and 
commercial data available. These findings must be clearly documented 
and based upon reliable technical information regarding the status and 
habitat requirements of the affected species. The factors to be 
considered by the Director include, but are not limited to, the 
following:
    (1) Size of the current range of the affected species;
    (2) Percentage of range adversely affected by the conservation 
plan;
    (3) Percentage of range conserved by the conservation plan;
    (4) Ecological significance of that portion of the range affected 
by the conservation plan;
    (5) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (6) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (6) Additional actions. Nothing in this section will be construed 
to limit or constrain the Director, any Federal, State, local, or 
Tribal government agency, or a private entity from taking additional 
actions, at their own expense, to protect or conserve a species 
included in a conservation plan.
    (7) Permit amendment or renewal. Any amendment or renewal of an 
existing permit issued under this part is a new agency decision and is 
therefore subject to all current relevant laws and regulations. The 
application will be evaluated based on the current policies and 
guidance in effect at the time of the amendment or renewal decision. 
Evaluation of an amendment extends only to the portion(s) of the 
conservation plan or permit for which the amendment is requested. 
Amendment or renewal applications must meet issuance criteria based 
upon the best available commercial and scientific data at the time of 
the permit decision.
    (8) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec.  13.26 of this subchapter, a permittee under this 
paragraph (b) remains responsible for any outstanding minimization and 
mitigation measures required under the terms of the permit for take 
that occurs prior to surrender of the permit and such minimization and 
mitigation measures as may be required pursuant to the termination 
provisions of an implementing agreement, conservation plan, or permit 
even after surrendering the permit to the Service pursuant to Sec.  
13.26 of this subchapter. The Service will deem the permit canceled 
only upon a determination that such minimization and mitigation 
measures have been implemented. Upon surrender of the permit, no 
further take

[[Page 26097]]

by the permittee will be authorized under the terms of the surrendered 
permit.
    (9) Criteria for revocation. A permit issued under this paragraph 
(b) may not be revoked for any reason except:
    (i) The reasons set forth in Sec.  13.28(a)(1) through (4) of this 
subchapter; or
    (ii) If continuation of the permitted activity would be 
inconsistent with the criterion set forth in 16 U.S.C. 
1539(a)(2)(B)(iv) and the inconsistency has not been remedied.
    (c)(1) Application requirements for an enhancement of survival 
permit associated with conservation benefit agreements. The applicant 
must submit Form 3-200-54, the processing fee (if applicable), and a 
conservation benefit agreement. The Service will process the 
application when the Director determines the application has met all 
statutory and regulatory requirements for a complete application. A 
conservation benefit agreement must include the following:
    (i) Conservation measures. A complete description of the 
conservation measure or measures, including the location of the 
activity or activities to be covered by the permit, and their intended 
outcome for the covered species.
    (ii) Covered species. The common and scientific names of the 
covered species for which the applicant will conduct conservation 
measures and may need authorization for take.
    (iii) Goals and objectives. The measurable biological goals and 
objectives of the conservation measures in the agreement.
    (iv) Enrollment baseline. The baseline condition of the property or 
area to be enrolled as defined in Sec.  17.3.
    (v) Net conservation benefit. A description of how the measures are 
reasonably expected to improve each covered species' existing baseline 
condition on the enrolled property and result in a net conservation 
benefit as defined at Sec.  17.3.
    (vi) Monitoring. The steps the applicant will take to monitor and 
adaptively manage to ensure the goals and objectives of the 
conservation benefit agreement are met, the responsibilities of all 
parties are carried out, and the conservation benefit agreement will be 
properly implemented.
    (vii) Neighboring property owners. A description of the enrollment 
process to provide neighboring property owners take coverage under 
paragraph (c)(5)(ii) of this section, if applicable, or any other 
measures developed to protect the interests of neighboring property 
owners.
    (viii) Return to baseline condition. The applicant's choice between 
including authorization to return the enrolled property to baseline 
condition or forgoing that authorization. For applicants seeking 
authority to return to baseline condition, a description of steps that 
may be taken to return the property to baseline condition and measures 
to reduce the effects of the take to the covered species.
    (ix) Additional actions. Any other measures that the Director may 
require as necessary or appropriate to meet the issuance criteria in 
paragraph (c)(2) of this section or to avoid conflicts with other 
Service conservation efforts.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether to issue a permit. The Director will consider the 
general issuance criteria in Sec.  13.21(b) of this subchapter, except 
for Sec.  13.21(b)(4), and may issue the permit if the Director finds:
    (i) The take will be incidental to an otherwise lawful activity or 
purposeful if it is necessary for the implementation of the 
conservation benefit agreement and will be in accordance with the terms 
of the agreement.
    (ii) The implementation of the terms of the conservation benefit 
agreement is reasonably expected to provide a net conservation benefit 
to the affected covered species on the enrolled property that is 
included in the permit and for each individual property within a 
programmatic conservation benefit agreement, based upon: condition of 
the species or habitat, effects of conservation measures, and 
anticipated impacts of any permitted take.
    (iii) The direct and indirect effects of any authorized take are 
unlikely to appreciably reduce the likelihood of survival and recovery 
in the wild of any listed species.
    (iv) Implementation of the terms of the conservation benefit 
agreement will not conflict with any ongoing conservation or recovery 
programs for listed species and the covered species included in the 
permit.
    (v) The applicant has shown a capability for and commitment to 
implementing all terms of the conservation benefit agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (c) is subject to the following special 
conditions:
    (i) The participating property owner must notify the Service of any 
transfer of property subject to a conservation benefit agreement, at 
least 30 calendar days prior to the transfer.
    (ii) The permittee must give the Service reasonable advance notice 
(generally at least 30 calendar days) of when take of any covered 
species is expected to occur, to provide the Service an opportunity to 
relocate affected individuals of the species, if possible and 
appropriate.
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the conservation benefit agreement.
    (4) Permit duration and effective date. The duration of permits 
issued under paragraph (c) of this section must be sufficient to 
provide a net conservation benefit to species covered in the 
enhancement of survival permit on the enrolled property.
    (i) In determining the duration of a permit, the Director will 
consider the duration of the planned activities, the uncertainties 
related to the impacts of the taking, and the positive and negative 
effects of the planned activities covered by the permit on species 
covered by the conservation benefit agreement.
    (ii) Permits issued under this paragraph (c) become effective for 
listed covered species upon the date the permittee signs the 
enhancement of survival permit, which must be within 90 calendar days 
of issuance. For non-listed covered species, the take authorized 
through the permit becomes effective upon the effective date of the 
species' listing provided the permittee signed the permit within 90 
calendar days of issuance and has properly implemented the conservation 
benefit agreement since signing the permit.
    (5) Assurances. The assurances in paragraph (c)(5)(i) of this 
section apply only to enhancement of survival permits issued in 
accordance with paragraph (c)(2) of this section where the conservation 
benefit agreement is being properly implemented, apply only with 
respect to species covered by the permit, and are effective until the 
permit expires. The assurances provided in this section apply only to 
enhancement of survival permits issued after July 19, 1999.
    (i) Permittee and participating property owners. The Director and 
the permittee may agree to revise or modify the conservation measures 
set forth in a conservation benefit agreement if the Director 
determines that those revisions or modifications do not change the 
Director's prior determination that the conservation benefit agreement 
is reasonably expected to provide a net conservation benefit to the 
covered

[[Page 26098]]

species. However, the Director may not require additional or different 
conservation measures to be undertaken by a permittee without the 
consent of the permittee.
    (ii) Neighboring property owners. The Director may provide take 
coverage in the enhancement of survival permit for owners of properties 
adjacent to properties covered by the conservation benefit agreement 
through enrollment procedures contained in the agreement. The take 
covered and the method of providing take coverage will be tailored to 
the specific conservation benefit agreement and needs of adjacent 
property owners. One method is to have the neighboring property owner 
sign a certificate that applies the authorization and assurances in the 
permit to the neighboring property owner. The certificate must:
    (A) Establish a baseline condition for the covered species on their 
property; and
    (B) Give permission to the Service, the permittee, or a 
representative of either to enter the property, with reasonable notice, 
to capture and relocate, salvage, or implement measures to reduce 
anticipated take of the covered species.
    (6) Additional actions. Nothing in this section will be construed 
to limit or constrain the Director, any Federal, State, local, or 
Tribal government agency, or a private entity from taking additional 
actions, at their own expense, to protect or conserve a species 
included in a conservation benefit agreement.
    (7) Permit amendment or renewal. Any amendment or renewal of an 
existing permit issued under this part is a new agency decision and is 
therefore subject to all current relevant laws and regulations. The 
application will be evaluated based on the current policies and 
guidance in effect at the time of the amendment or renewal decision. 
Evaluation of an amendment extends only to the portion(s) of the 
conservation benefit agreement or permit for which the amendment is 
requested. Amendment or renewal applications must meet issuance 
criteria based upon the best available commercial and scientific data 
at the time of the permit decision.
    (8) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec.  13.26 of this subchapter, a permittee under this 
paragraph (c) remains responsible for any outstanding conservation 
measures required under the terms of the permit for take that occurs 
prior to surrender of the permit and any conservation measures required 
pursuant to the termination provisions of the conservation benefit 
agreement or permit even after surrendering the permit to the Service 
pursuant to Sec.  13.26 of this subchapter.
    (i) The permittee of a programmatic conservation benefit agreement 
that conveys take authorization and assurances to participants or 
enrollees must follow the provisions of Sec.  13.26 of this subchapter.
    (ii) The permit will be deemed canceled only upon a determination 
by the Service that those conservation measure(s) have been implemented 
and the permittee has had ample time to return the permittee's property 
to baseline condition, if the permit authorized take associated with 
return to baseline and if the permittee chooses to exercise that 
authorization.
    (iii) Upon surrender of the permit, no further take will be 
authorized under the terms of the surrendered permit, and the 
assurances in paragraph (c)(5)(i) of this section will no longer apply.
    (9) Criteria for revocation. The Director may not revoke a permit 
issued under paragraph (c) of this section except as provided in this 
paragraph (c)(9).
    (i) 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 covered activity would either:
    (A) Appreciably reduce the likelihood of survival and recovery in 
the wild of any covered species; or
    (B) Directly or indirectly alter designated critical habitat such 
that the value of that critical habitat is appreciably diminished for 
both the survival and recovery of a covered species.
    (ii) Before revoking a permit for either of the reasons in 
paragraphs (c)(9)(i)(A) or (B) of this section, 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 property owner 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) Objection to permit issuance. (1) In regard to any notice of a 
permit application published in the Federal Register, any interested 
party that objects to the issuance of a permit, in whole or in part, 
may, during the comment period specified in the notice, request 
notification of the final action to be taken on the application. A 
separate written request must be made for each permit application. Such 
a request must specify the Service's permit application number and 
state the reasons why the interested party believes the applicant does 
not meet the issuance criteria contained in this section and Sec.  
13.21 of this subchapter, or other reasons why the permit should not be 
issued.
    (2) If the Service decides to issue a permit despite objections 
received pursuant to paragraph (d)(1) of this section, the Service 
will, at least 10 days prior to issuance of the permit, make reasonable 
efforts to contact by telephone, or other expedient means, any party 
who has made a request pursuant to paragraph (d)(1) of this section and 
inform that party of the issuance of the permit. However, the Service 
may reduce the time period or dispense with such notice if the Service 
determines that time is of the essence and that delay in issuance of 
the permit would:
    (i) Harm the specimen or population involved; or
    (ii) Unduly hinder the actions authorized under the permit.
    (3) The Service will notify any party filing an objection and 
request for notice under paragraph (d)(1) of this section of the final 
action taken on the application, in writing. If the Service has reduced 
or dispensed with the notice period referred to in paragraph (d)(2) of 
this section, the Service will include its reasons in such written 
notice.

Subpart D--Threatened Wildlife

0
10. Amend Sec.  17.32 by:
0
a. Revising the section heading and paragraphs (b) and (c); and
0
b. Removing paragraph (d).
    The revisions read as follows:


Sec.  17.32   Permits for threatened species.

* * * * *
    (b)(1) Application requirements for an incidental take permit. A 
person seeking authorization for incidental take that would otherwise 
be prohibited by Sec.  17.31 or Sec. Sec.  17.40 through 17.48 submits 
Form 3-200-56, a processing fee (if applicable), and a conservation 
plan. The Service will process the application when the Director 
determines the application is complete. A conservation plan must 
include the following:
    (i) Project description. A complete description of the project, 
including purpose, location, timing, and proposed covered activities.
    (ii) Covered species. As defined in Sec.  17.3, common and 
scientific names of species sought to be covered by the permit, as well 
as the number, age, and sex, if known.

[[Page 26099]]

    (iii) Goals and objectives. The measurable biological goals and 
objectives of the conservation plan.
    (iv) Anticipated take. Expected timing, geographic distribution, 
type and amount of take, and the likely impact of take on the species.
    (v) Conservation program: That explains the:
    (A) Conservation measures that will be taken to minimize and 
mitigate the impacts of the incidental take for all covered species 
commensurate with the taking;
    (B) Roles and responsibilities of all entities involved in 
implementation of the conservation plan;
    (C) Changed circumstances and the planned responses in an adaptive 
management plan; and
    (D) Procedures for dealing with unforeseen circumstances.
    (vi) Conservation timing. The timing of mitigation relative to the 
incidental take of covered species.
    (vii) Permit duration. The rationale for the requested permit 
duration.
    (viii) Monitoring. Monitoring of the effectiveness of the 
mitigation and minimization measures, progress towards achieving the 
biological goals and objectives, and permit compliance. The scope of 
the monitoring program should be commensurate with the scope and 
duration of the conservation program and the project impacts.
    (ix) Funding needs and sources. An accounting of the costs for 
properly implementing the conservation plan and the sources and methods 
of funding.
    (x) Alternative actions. The alternative actions to the taking the 
applicant considered and the reasons why such alternatives are not 
being used.
    (xi) Additional actions. Other measures that the Director requires 
as necessary or appropriate, including those necessary or appropriate 
to meet the issuance criteria or other statutory responsibilities of 
the Service.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (b)(1) of this section, the Director will 
decide whether a permit should be issued. The Director will consider 
the general issuance criteria in Sec.  13.21(b) of this subchapter, 
except for Sec.  13.21(b)(4). In making a decision, the Director will 
consider the anticipated duration and geographic scope of the 
applicant's planned activities, including the amount of covered 
species' habitat that is involved and the degree to which covered 
species and their habitats are affected. The Director will issue the 
permit if the Director finds:
    (i) The taking will be incidental to, and not the purpose of, 
carrying out an otherwise lawful activity.
    (ii) The applicant will, to the maximum extent practicable, 
minimize and mitigate the impacts of the taking.
    (iii) The applicant will ensure that adequate funding for the 
conservation plan implementation will be provided.
    (iv) The applicant has provided procedures to deal with unforeseen 
circumstances.
    (v) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild.
    (vi) The measures and conditions, if any, required under paragraph 
(b)(1)(xi) of this section will be met.
    (vii) The applicant has provided any other assurances the Director 
requires to ensure that the conservation plan will be implemented.
    (3) Permit conditions. In addition to the general conditions set 
forth in part 13 of this subchapter, every permit issued under the 
regulations in this section will contain terms and conditions that the 
Director deems necessary or appropriate to carry out the purposes of 
the permit and the conservation plan, including, but not limited to, 
additional conservation measures, if any, that may be required pursuant 
to paragraph (b)(1)(xi) of this section, specified deadlines, and 
monitoring and reporting requirements deemed necessary for determining 
whether the permittee is complying with those terms and conditions. The 
Director will rely upon existing reporting requirements to the maximum 
extent practicable.
    (4) Permit duration and effective date. In determining the duration 
of a permit, the Director will consider the duration of the activities 
for which coverage is requested; the time necessary to fully minimize 
and mitigate the impacts of the taking; and uncertainties related to 
the impacts of the taking, success of the mitigation, and external 
factors that could affect the success of the conservation plan.
    (i) Permits issued under this paragraph (b) become effective for 
listed covered species upon the date the permittee signs the incidental 
take permit, which must occur within 90 calendar days of issuance. For 
non-listed covered species, the permit's take authorization becomes 
effective upon the effective date of the species' listing provided the 
permittee signed the permit within 90 calendar days of issuance and has 
properly implemented the conservation plan.
    (ii) The permit expires on the date indicated on the face of the 
permit.
    (5) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (b)(5) apply 
only to incidental take permits issued in accordance with paragraph 
(b)(2) of this section where the conservation plan is being properly 
implemented and the permittee is properly complying with the incidental 
take permit. The assurances apply only with respect to species covered 
by the conservation plan. These assurances do not apply to Federal 
agencies or to incidental take permits issued prior to March 25, 1998. 
The assurances provided in incidental take permits issued prior to 
March 25, 1998, remain in effect, and those permits will not be 
revised.
    (i) Changed circumstances provided for in the plan. If additional 
conservation and mitigation measures are deemed necessary to respond to 
changed circumstances and were provided for in the plan's operating 
conservation program, the permittee will implement the measures 
specified in the plan.
    (ii) Changed circumstances not provided for in the plan. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and were not provided for in the 
plan's operating conservation program, the Director will not require 
any conservation and mitigation measures in addition to those provided 
for in the plan without the consent of the permittee, provided the 
Director determines that the plan is being properly implemented.
    (iii) Unforeseen circumstances. (A) In negotiating a response to 
unforeseen circumstances, the Director will not require the commitment 
of additional land, water, or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level otherwise agreed upon for the species covered by the 
conservation plan without the consent of the permittee.
    (B) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, the Director may 
require additional measures of the permittee where the conservation 
plan is being properly implemented, but only if such measures:
    (1) Are limited to modifications within conserved habitat areas, if 
any, or to the conservation plan's operating conservation program for 
the affected species; and
    (2) Maintain the original terms of the conservation plan to the 
maximum extent possible.

[[Page 26100]]

    (3) Additional conservation and mitigation measures will not 
involve the commitment of additional land, water, or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use 
under the original terms of the conservation plan, without the consent 
of the permittee.
    (C) The Director will have the burden of demonstrating that 
unforeseen circumstances exist, using the best scientific and 
commercial data available. These findings must be clearly documented 
and based upon reliable technical information regarding the status and 
habitat requirements of the affected species. The factors to be 
considered by the Director include, but are not limited to, the 
following:
    (1) Size of the current range of the affected species;
    (2) Percentage of range adversely affected by the conservation 
plan;
    (3) Percentage of range conserved by the conservation plan;
    (4) Ecological significance of that portion of the range affected 
by the conservation plan;
    (5) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (6) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (6) Additional actions. Nothing in this section will be construed 
to limit or constrain the Director, any Federal, State, local, or 
Tribal government agency, or a private entity from taking additional 
actions, at their own expense, to protect or conserve a species 
included in a conservation plan.
    (7) Permit amendment or renewal. Any amendment or renewal of an 
existing permit issued under this part is a new agency decision and is 
therefore subject to all current relevant laws and regulations. The 
application will be evaluated based on the current policies and 
guidance in effect at the time of the amendment or renewal decision. 
Evaluation of an amendment extends only to the portion(s) of the 
conservation plan or permit for which the amendment is requested. 
Amendment or renewal applications must meet issuance criteria based 
upon the best available commercial and scientific data at the time of 
the permit decision.
    (8) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec.  13.26 of this subchapter, a permittee under this 
paragraph (b) remains responsible for any outstanding minimization and 
mitigation measures required under the terms of the permit for take 
that occurs prior to surrender of the permit and such minimization and 
mitigation measures as may be required pursuant to the termination 
provisions of an implementing agreement, conservation plan, or permit 
even after surrendering the permit to the Service pursuant to Sec.  
13.26 of this subchapter.
    (i) The Service will deem the permit canceled only upon a 
determination that such minimization and mitigation measures have been 
implemented.
    (ii) Upon surrender of the permit, no further take by the permittee 
will be authorized under the terms of the surrendered permit.
    (9) Criteria for revocation. A permit issued under this paragraph 
(b) may not be revoked for any reason except:
    (i) The reasons set forth in Sec.  13.28(a)(1) through (4) of this 
subchapter; or
    (ii) If continuation of the permitted activity would be 
inconsistent with the criterion set forth in 16 U.S.C. 
1539(a)(2)(B)(iv) and the inconsistency has not been remedied.
    (c)(1) Application requirements for an enhancement of survival 
permit associated with conservation benefit agreements. The applicant 
must submit Form 3-200-54, the processing fee (if applicable), and a 
conservation benefit agreement. The Service will process the 
application when the Director determines the application has met all 
statutory and regulatory requirements for a complete application. A 
conservation benefit agreement must include the following:
    (i) Conservation measures. A complete description of the 
conservation measure or measures, including the location of the 
activity or activities to be covered by the permit, and their intended 
outcome for the covered species.
    (ii) Covered species. The common and scientific names of the 
covered species for which the applicant will conduct conservation 
measures and may need authorization for take.
    (iii) Goals and objectives. The measurable biological goals and 
objectives of the conservation measures in the agreement.
    (iv) Enrollment baseline. The baseline condition of the property or 
area to be enrolled as defined in Sec.  17.3.
    (v) Net conservation benefit. A description of how the measures are 
reasonably expected to improve each covered species' existing baseline 
condition on the enrolled property and result in a net conservation 
benefit as defined at Sec.  17.3.
    (vi) Monitoring. The steps the applicant will take to monitor and 
adaptively manage to ensure the goals and objectives of the 
conservation benefit agreement are met, the responsibilities of all 
parties are carried out, and the conservation benefit agreement will be 
properly implemented.
    (vii) Neighboring property owners. A description of the enrollment 
process to provide neighboring property owners take coverage under 
paragraph (c)(5)(ii) of this section, if applicable, or any other 
measures developed to protect the interests of neighboring property 
owners.
    (viii) Return to baseline condition. The applicant's choice between 
including authorization to return the enrolled property to baseline 
condition or forgoing that authorization. For applicants seeking 
authority to return to baseline condition, a description of steps that 
may be taken to return the property to baseline condition and measures 
to reduce the effects of the take to the covered species.
    (ix) Additional actions. Any other measures that the Director may 
require as necessary or appropriate to meet the issuance criteria in 
paragraph (c)(2) of this section or to avoid conflicts with other 
Service conservation efforts.
    (2) Issuance criteria. Upon receiving an application completed in 
accordance with paragraph (c)(1) of this section, the Director will 
decide whether to issue a permit. The Director will consider the 
general issuance criteria in Sec.  13.21(b) of this subchapter, except 
for Sec.  13.21(b)(4), and may issue the permit if the Director finds:
    (i) The take will be incidental to an otherwise lawful activity or 
purposeful if it is necessary for the implementation of the 
conservation benefit agreement and will be in accordance with the terms 
of the agreement.
    (ii) The implementation of the terms of the conservation benefit 
agreement is reasonably expected to provide a net conservation benefit 
to the affected covered species on the enrolled property that is 
included in the permit and for each individual property within a 
programmatic conservation benefit agreement, based upon: condition of 
the species or habitat, effects of conservation measures, and 
anticipated impacts of any permitted take.
    (iii) The direct and indirect effects of any authorized take are 
unlikely to appreciably reduce the likelihood of survival and recovery 
in the wild of any listed species.

[[Page 26101]]

    (iv) Implementation of the terms of the conservation benefit 
agreement will not conflict with any ongoing conservation or recovery 
programs for listed species and the covered species included in the 
permit.
    (v) The applicant has shown a capability for and commitment to 
implementing all terms of the conservation benefit agreement.
    (3) Permit conditions. In addition to any applicable general permit 
conditions set forth in part 13 of this subchapter, every permit issued 
under this paragraph (c) is subject to the following special 
conditions:
    (i) The participating property owner must notify the Service of any 
transfer of property subject to a conservation benefit agreement, at 
least 30 calendar days prior to the transfer.
    (ii) The permittee must give the Service reasonable advance notice 
(generally at least 30 calendar days) of when take of any covered 
species is expected to occur, to provide the Service an opportunity to 
relocate affected individuals of the species, if possible and 
appropriate.
    (iii) Any additional requirements or conditions the Director deems 
necessary or appropriate to carry out the purposes of the permit and 
the conservation benefit agreement.
    (4) Permit duration and effective date. The duration of permits 
issued under paragraph (c) of this section must be sufficient to 
provide a net conservation benefit to species covered in the 
enhancement of survival permit on the enrolled property.
    (i) In determining the duration of a permit, the Director will 
consider the duration of the planned activities, the uncertainties 
related to the impacts of the taking, and the positive and negative 
effects of the planned activities covered by the permit on species 
covered by the conservation benefit agreement.
    (ii) Permits issued under this paragraph (c) become effective for 
listed covered species upon the date the permittee signs the 
enhancement of survival permit, which must be within 90 calendar days 
of issuance. For non-listed covered species, the take authorized 
through the permit becomes effective upon the effective date of the 
species' listing provided the permittee signed the permit within 90 
calendar days of issuance and has properly implemented the conservation 
benefit agreement since signing the permit.
    (5) Assurances. The assurances in paragraph (c)(5)(i) of this 
section apply only to enhancement of survival permits issued in 
accordance with paragraph (c)(2) of this section where the conservation 
benefit agreement is being properly implemented, apply only with 
respect to species covered by the permit, and are effective until the 
permit expires. The assurances provided in this section apply only to 
enhancement of survival permits issued after July 19, 1999.
    (i) Permittee and participating property owners. The Director and 
the permittee may agree to revise or modify the conservation measures 
set forth in a conservation benefit agreement if the Director 
determines that those revisions or modifications do not change the 
Director's prior determination that the conservation benefit agreement 
is reasonably expected to provide a net conservation benefit to the 
covered species. However, the Director may not require additional or 
different conservation measures to be undertaken by a permittee without 
the consent of the permittee.
    (ii) Neighboring property owners. The Director may provide take 
coverage in the enhancement of survival permit for owners of properties 
adjacent to properties covered by the conservation benefit agreement 
through enrollment procedures contained in the agreement. The take 
covered and the method of providing take coverage will be tailored to 
the specific conservation benefit agreement and needs of adjacent 
property owners. One method is to have the neighboring property owner 
sign a certificate that applies the authorization and assurances in the 
permit to the neighboring property owner. The certificate must:
    (A) Establish a baseline condition for the covered species on their 
property; and
    (B) Give permission to the Service, the permittee, or a 
representative of either to enter the property, with reasonable notice, 
to capture and relocate, salvage, or implement measures to reduce 
anticipated take of the covered species.
    (6) Additional actions. Nothing in this section will be construed 
to limit or constrain the Director, any Federal, State, local, or 
Tribal government agency, or a private entity from taking additional 
actions, at their own expense, to protect or conserve a species 
included in a conservation benefit agreement.
    (7) Permit amendment or renewal. Any amendment or renewal of an 
existing permit issued under this part is a new agency decision and is 
therefore subject to all current relevant laws and regulations. The 
application will be evaluated based on the current policies and 
guidance in effect at the time of the amendment or renewal decision. 
Evaluation of an amendment extends only to the portion(s) of the 
conservation benefit agreement or permit for the which the amendment is 
requested. Amendment or renewal applications must meet issuance 
criteria based upon the best available commercial and scientific data 
at the time of the permit decision.
    (8) Discontinuance of permit activity. Notwithstanding the 
provisions of Sec.  13.26 of this subchapter, a permittee under this 
paragraph (c) remains responsible for any outstanding conservation 
measures required under the terms of the permit for take that occurs 
prior to surrender of the permit and any conservation measures required 
pursuant to the termination provisions of the conservation benefit 
agreement or permit even after surrendering the permit to the Service 
pursuant to Sec.  13.26 of this subchapter.
    (i) The permittee of a programmatic conservation benefit agreement 
that conveys take authorization and assurances to participants or 
enrollees must follow the provisions of Sec.  13.26 of this subchapter.
    (ii) The permit will be deemed canceled only upon a determination 
by the Service that those conservation measure(s) have been implemented 
and the permittee has had ample time to return the permittee's property 
to baseline condition, if the permit authorized take associated with 
return to baseline and if the permittee chooses to exercise that 
authorization.
    (iii) Upon surrender of the permit, no further take will be 
authorized under the terms of the surrendered permit, and the 
assurances in paragraph (c)(5)(i) of this section will no longer apply.
    (9) Criteria for revocation. The Director may not revoke a permit 
issued under this paragraph (c) except as provided in this paragraph 
(c)(9).
    (i) 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 covered activity would either:
    (A) Appreciably reduce the likelihood of survival and recovery in 
the wild of any covered species; or
    (B) Directly or indirectly alter designated critical habitat such 
that the value of that critical habitat is appreciably diminished for 
both the survival and recovery of a covered species.
    (ii) Before revoking a permit for either of the reasons in 
paragraphs (c)(9)(i)(A) or (B) of this section, 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

[[Page 26102]]

and relocating the species, compensating the property owner 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.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-07602 Filed 4-11-24; 8:45 am]
BILLING CODE 4333-15-P