Endangered and Threatened Wildlife and Plants; Enhancement of Survival and Incidental Take Permits, 8380-8396 [2023-02690]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8380-8396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02690]


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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 223 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: Proposed rule; request for public comments.

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SUMMARY: We, the U.S. Fish Wildlife Service (Service), propose to 
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 include portions of our five-point 
policies for safe harbor agreements, candidate conservation agreements 
with

[[Page 8381]]

assurances, and habitat conservation plans in the regulations to reduce 
uncertainty. We also propose to make technical and administrative 
revisions to the regulations. The proposed 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: 
    Comments: We will accept comments from all interested parties until 
April 10, 2023. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES, below), the deadline for submitting 
an electronic comment is 11:59 p.m. eastern time on this date.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this proposed 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 
proposed rule between 30 and 60 days after publication of this proposed 
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 April 10, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-0152, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-HQ-ES-2021-0152, U.S. Fish and Wildlife 
Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Information Collection Requirements: Send your comments on the 
information collection request by mail to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email 
to [email protected]; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number 
1018-0094 in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Lisa Ellis, 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 Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 
et seq.), states that its purposes 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 regulations 
implementing the ESA are in title 50 of the Code of Federal Regulations 
(CFR).
    The 1982 ESA amendments added 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 included on the permit.
    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) of the ESA allows for the issuance of 
incidental take permits to authorize take that is incidental to, but 
not the purpose of, carrying out otherwise lawful activities, 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), per 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 as the ``five-point policy'' in 2000 (65 FR 35242, June 1, 
2000), and we published a revised Habitat Conservation Planning 
Handbook in 2016 (81 FR 93702, December 21, 2016).
    This proposed revision to the implementing regulations for section 
10 is 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 a conservation plan, also known as 
a habitat conservation plan (Sec. Sec.  17.22(b) and 17.32(b)). This 
rulemaking also proposes changes to 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). As part of this rulemaking, the 
Service will consider whether additional modifications to section 
10(a)(1)(A) and 10(a)(1)(B) regulations would improve, clarify, or 
expedite the administration of the ESA.
    The Service proposes to revise the regulations to reduce the time 
it takes for applicants to prepare and develop the required documents 
to support applications for section 10(a) permits, thus accelerating 
permitting and conservation implementation. We propose to accomplish 
this goal 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) 
to issue permits for non-listed species without a listed species also 
on the permit; and

[[Page 8382]]

     clarifying the requirements for complete applications 
under both permitting authorities.
    These changes should 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.
    We propose to clarify under which authority it is appropriate to 
authorize the proposed take, either through an enhancement of survival 
or incidental take permit. 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. 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); the 
conservation actions in the associated conservation plan minimize and 
mitigate the impacts of the authorized take. Maintaining this 
distinction between these two permit types will ensure take is sought 
through and authorized under the proper authority, reduce confusion, 
and expedite the permitting process.
    This proposal clarifies that enhancement of survival and incidental 
take permits can be issued for non-listed species without including a 
listed species on the permit. Immediately upon permit issuance, the 
permittee would begin implementing the conservation commitments for the 
non-listed covered species. However, the take authorization would not 
go into effect until such time as the non-listed covered species 
becomes listed, either as 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) 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. We propose to 
simplify 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.  17.32(d) and 17.32(d).
    We are proposing to clarify 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 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, but instead authorizes only the take 
of covered species resulting from those activities. This clarification 
is proposed at 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.
    Under section 10(a)(1)(A), we propose regulation changes that 
combine the SHA and CCAA into one type of conservation agreement, also 
known as a conservation benefit agreement. We use the term 
``conservation benefit agreement'' to describe the supporting document 
required for an enhancement of survival permit. The goal of this 
proposed change is to simplify the process for new conservation benefit 
agreements developed in support of enhancement of survival permit 
applications. We are also proposing that applicants for an enhancement 
of survival permit would have the option, currently available in an 
SHA, to return the property to baseline conditions. We propose to 
define ``baseline condition'' to mean the population estimates and 
distribution or habitat characteristics on the enrolled land that 
sustain seasonal or permanent use by the covered species at the time a 
conservation benefit agreement is approved by the Service and executed 
by the property owner or by a programmatic permit holder and the 
property owner. Providing applicants with a choice 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 occur as a result of implementing 
beneficial actions under the conservation benefit agreement, such as 
reintroducing a species to a covered property or capturing and 
relocating a covered species that may have dispersed to an adjacent 
property not subject to the agreement. Once these proposed regulations 
are finalized, the Service will no longer implement the SHA and CCAA 
policies.
    Under section 10(a)(1)(B), we propose to incorporate aspects of the 
five-point policy for incidental take permits and guidance from the 
2016 Habitat Conservation Planning Handbook into the regulations to 
reduce confusion and streamline the 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. Nothing in these proposed revisions to the 
regulations is intended to require that any previous permits issued 
under section 10(a)(1)(A) or (B) be reevaluated when this rule is 
finalized. However, future applications for new permits, renewals, or 
amendments would be subject to the revisions in the final rule.

Proposed Revisions to 50 CFR Part 13 and Part 17

    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. We are proposing changes to part 13 to address the specific 
revisions we are seeking in Sec. Sec.  17.22 and 17.32, and to clarify 
points of contention in the administration of permits under Sec. Sec.  
17.22 and 17.32. Because this proposed rule would rescind Sec. Sec.  
17.22(d) and 17.32(d), the references in part 13 to those paragraphs 
would be removed and modified to reference the remaining paragraphs 
(i.e., references to Sec.  17.22(b) through (d) would be changed to 
Sec.  17.22(b) and (c) and references to Sec.  17.32(b) through (d) 
would be changed to Sec.  17.32(b) and (c)).

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

    Section 10(a)(1)(A) 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 permitted under section 10(a)(1)(A) 
enhancement of survival permits. The permit is intended to incentivize

[[Page 8383]]

voluntary conservation by authorizing any take of covered species that 
may result from implementing the approved conservation benefit 
agreement and providing assurances that we will not require an 
increased commitment or impose additional restrictions on the 
permittee's 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.
    The authority granted under section 10(a)(1)(B) allows for the 
issuance of a permit 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. The purpose is to provide a means for ESA 
compliance when otherwise lawful development activities cause 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 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 should they become listed in the future. These permits are 
issued upon the Service's approval of the application. Implementation 
of the conservation measures for the non-listed species begins upon 
issuance of the permit. Should the non-listed species become 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 in 
the House of Representatives Report on the Endangered Species Act 
Amendments of 1982 (Report number 97-835).
    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 section 10(a)(1)(A) of the Act 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 65 enhancement of survival permits 
for non-listed species in association with a CCAA; 59 of these continue 
to be implemented.
    Revising the regulations to clarify that we can issue permits that 
address only non-listed species under 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) in the event that 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 
otherwise lawful activities. We expect that this clarification will 
reduce confusion and eliminate 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 most 
applicable to the project purpose. We acknowledge that the Habitat 
Conservation Planning Handbook reflects current regulations and states 
that applicants must include at least one ESA-listed species in a 
conservation plan. If this proposed change is finalized, we intend to 
update the handbook accordingly.

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, we propose language that will 
clarify that, under these authorities, the Service authorizes take and 
not the underlying activities themselves. We expect that 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 Benefit Agreements and 
Conservation Plans

    One of the common concerns expressed by applicants applying for a 
permit 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 or incidental take permit is divided into three phases: (1) 
pre-application (project proponent decides whether to apply for a 
permit); (2) conservation benefit 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 pre-
application 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, we propose to clarify the current 
regulations and revise 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, 
5-point policy, SHA policy, and CCAA policy, as applicable. These 
clarifications address the requirements 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.

[[Page 8384]]

    We also propose to refine 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. We expect that 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 benefit 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 proposed revisions related to issuance criteria in 
parts 13 and 17 are limited to permits issued under ESA section 10(a) 
and do not address other statutes.

Permit Renewal and Amendment Processes

    The Service proposes to 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 the previously approved permit or 
unchanged portions of the conservation benefit 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 burden and also reassure permittees applying for renewals 
and amendments, thereby expediting development of a complete 
application and processing of that application.

Public Comments

    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to https://www.regulations.gov before 11:59 p.m. (eastern 
time) on the date specified in DATES. We will not consider mailed 
comments that are not postmarked on or before the date specified in 
DATES.
    We seek public comments on the proposed revisions to parts 13 and 
17 of the ESA regulations in title 50 including, but not limited to, 
revising or adopting as regulations existing practices or policies, or 
interpreting terms or phrases from the ESA. Based on comments received 
on this proposed rule and from our advance notice of proposed 
rulemaking related to regulatory reform (77 FR 15352, March 15, 2012), 
and on our experience in administering the ESA, the final rule may 
include revisions to any provisions in parts 13 and 17 that are a 
logical outgrowth of this proposed rule, consistent with the 
Administrative Procedure Act (5 U.S.C. 551 et seq.).
    We particularly seek comment on:
    (1) The extent to which the changes outlined in this proposed rule 
will affect timeframes and resources needed to plan and process 
permits;
    (2) anticipated cost savings resulting from the proposed changes, 
if any;
    (3) the impact to the conservation delivered through these permit 
programs; and
    (4) specific language that would be a logical outgrowth of these 
proposed changes that would enhance our ability to meet the goals and 
objectives of these proposed regulatory revisions.
    We also seek public comment and data on the amount of privately 
held land that contains listed and non-listed species and that could 
potentially be permitted under these proposed regulatory revisions and 
on the potential for an increase in permit applications, particularly 
in response to the proposed provision regarding return to baseline. 
Providing applicants with a choice whether to return to baseline 
condition provides more flexibility in the agreement and may increase 
participation. In addition to reviewing any public comments received on 
these issues, we will attempt to identify data sources to inform 
conclusions about the direction and possible magnitude of increased 
participation in this permitting program.
    We will post your entire comment-- including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. 
Comments and materials we receive, as well as supporting documentation 
we used in preparing this proposed rule, will be available for public 
inspection on https://www.regulations.gov.

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 
proposed 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 emphasizes further 
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 these requirements. This proposed rule is consistent with E.O. 
13563, and in particular with 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.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (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, if 
adopted as proposed, this proposed rule would not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The proposed rule, if adopted, would revise the implementing 
regulations to clarify existing statutory requirements

[[Page 8385]]

that govern the Service's processing of applications for section 10(a) 
permits. The proposed rule would not significantly change the way we 
currently implement the section 10 program or expand the reach of 
species protections. To the extent the revisions relate to 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. For example, the ESA requires applicants to ensure that 
adequate funding will be available to implement a conservation plan. In 
the proposed rule, we clarify that applicants for certain conservation 
plans must provide a financial analysis by an independent, qualified 
third party. Even if there are some increased costs associated with 
meeting this or other requirements in the proposed rule, we anticipate 
that those costs will be offset by the revisions streamlining and 
clarifying the application and decision-making process, which will save 
applicants and permittees time and money. Therefore, no external 
entities, including any small businesses, small organizations, or small 
governments, will experience significant economic impacts from this 
rule. Because we certify that, if promulgated, this proposed rule will 
not have a significant economic impact on a substantial number of small 
entities, an initial 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 proposed 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 would 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 would not be affected because the proposed 
rule would not place additional requirements on any city, county, or 
other local municipalities.
    (b) This proposed rule would 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 proposed rule is not a 
``significant regulatory action''' under the Unfunded Mandates Reform 
Act. This proposed rule would impose no obligations on State, local, or 
Tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
pertain to ``taking'' of private property interests, nor would it 
directly affect private property. A takings implication assessment is 
not required because this proposed rule (1) would not effectively 
compel a property owner to suffer a physical invasion of property and 
(2) would not deny all economically beneficial or productive use of the 
land or aquatic resources. This proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
endangered species, threatened species, and other non-listed species of 
conservation concern) and would 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 proposed rule would have significant federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to those entities 
voluntarily applying for a permit under section 10 of the ESA and would 
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 proposed rule would 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 proposed rule would clarify 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 are considering possible effects 
of this proposed 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 proposed 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 proposed 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 01/31/2024).
    In accordance with the PRA and its implementing regulations at 5 
CFR 1320.8(d)(1), we provide the general public and other Federal 
agencies with an opportunity to comment on our proposal to revise OMB 
Control Number 1018-0094. This input will help us assess the impact of 
our information collection requirements and minimize the public's 
reporting burden. It will also help 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 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,

[[Page 8386]]

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 benefit 
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 proposed 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 nonsubstantive and substantive 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) (NEW) 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 
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

[[Page 8387]]

condition on the enrolled land 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 incidental 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 land 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 with Conservation Plan''--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 permittees--such as 
States, local governments, businesses, corporations, and private 
landowners--from the prohibitions of section 9, not to authorize the 
activities that result in take. The permittee also has assurances from 
the FWS through the ``No Surprises'' regulation. The application form 
has a few revisions to be consistent with the proposed regulations, 
which include clarifying minor 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 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 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) (NEW) Conservation Plan--As part of the application process, 
applicants are also required to submit a conservation plan with their 
completed Form 3-200-56. 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 of individuals to be taken and the 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, which 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 FWS 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 purchase and sale 
of listed species across State lines. For wildlife, 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 FWS website, and add information in 
section E (question A7) to ensure that applicants provide information

[[Page 8388]]

necessary for the permit decision as required by regulation.
    (11) (NEW) Application Amendments (FWS Forms 3-200-59 and 3-200-
60)--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 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. 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 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 has occurred, both of which are essential to ensuring 
compliance with the permit. Permittees may submit the information in 
any format they choose.
    (2) Notifications (Incidental 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 Land Owner)--We issue enhancement of 
survival permits to the landowners, and their name is printed on the 
permit. If ownership of the land changes, this permit does not 
automatically transfer to the new landowner. Therefore, we ask the 
permittee to notify us if there is a change in land ownership so that 
we may update the permit.
    (4) Annual Reports (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 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/Interstate Commerce)--Annual reports 
associated with recovery/interstate commerce permits 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 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, and 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''; and
     FWS Form 3-202-55g, ``Sea Turtle Rehabilitation''.
    We also utilize the following seven new reporting forms associated 
with the recovery/interstate commerce portion of this information 
collection:
     Form 3-2523, ``Midwest Geographic Area: Freshwater Mussel 
Reporting Form'';
     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.

[[Page 8389]]

    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).
    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 are analyzing this proposed regulation 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 anticipate that the categorical exclusion found at 43 CFR 
46.210(i) likely applies to the proposed 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. 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. We invite the public to comment on the extent to which this 
proposed rule may have a significant impact on the human environment or 
fall within one of the categorical exclusions for actions that have no 
individual or cumulative effect on the quality of the human 
environment. We will complete our analysis, in compliance with NEPA, 
before finalizing these proposed regulations.

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

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. The proposed 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.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

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.

Proposed Regulation Promulgation

    Accordingly, we propose to 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) or Sec.  17.32(b) or (c) of this subchapter will 
be consistent with the requirements of Sec.  17.22(b)(5) and (c)(5) or 
Sec.  17.32(b)(5) and (c)(5) of this subchapter, respectively.
* * * * *
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:


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,

[[Page 8390]]

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 lands 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 at Sec.  10.12 of this 
subchapter, who is named and identified on the application and, by 
signing the application, will assume 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.
* * * * *
    Baseline condition means population estimates and distribution or 
habitat characteristics on the enrolled land that could sustain 
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, or a fire or other natural catastrophic event 
in areas prone to those events).
* * * * *
    Covered activity means an action 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 conservation benefit agreement and for which take 
is authorized through an incidental take or enhancement of survival 
permit. Covered species include species listed as endangered or 
threatened for which take is reasonably certain to occur. Covered 
species may include species that are proposed or candidates for 
listing, that have other Federal protective status, or that the Service 
determines have a reasonable potential to be considered for listing 
during the permit's duration. An incidental take or enhancement of 
survival permit need not include a listed species.
* * * * *
    Net conservation benefit means the cumulative benefit provided by 
specific measures described in a conservation benefit agreement that 
are 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 at the end of the 
agreement period than at the beginning.
* * * * *
    Permit area means the geographic area where the take permit 
applies. The permit area must be delineated in the

[[Page 8391]]

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 pursuant 
to applicable regulations.
    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 water or other natural resources) sufficient to carry out the 
proposed activities, subject to applicable State 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 of individuals to be taken and the 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, which 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.
    (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 this 
paragraph (b) 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, 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

[[Page 8392]]

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.
    (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 its 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, 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 (b) remains responsible for any outstanding minimization and 
mitigation measures required under the terms of the permit for take 
that occurs prior to surrender of the permit and such minimization and 
mitigation measures as may be required pursuant to the termination 
provisions of an implementing agreement, habitat conservation plan, or 
permit even after surrendering the permit to the Service pursuant to 
Sec.  13.26 of this subchapter. The Service will deem the permit 
canceled only upon a determination that such minimization and 
mitigation measures have been implemented. Upon surrender of the 
permit, the permittee will be authorized no further take 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 those set forth in Sec.  
13.28(a)(1) through (4) of this subchapter or unless continuation of 
the permitted activity would be inconsistent with the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been 
remedied.
    (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.
    (v) Net conservation benefit: A description of how the measures are 
reasonably expected to improve each covered species' existing baseline 
condition on the enrolled land 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 incidental 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 enrolled land 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 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 conservation benefit 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 land 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 the covered species included in the permit or non-covered 
listed species.
    (v) The applicant has shown capability of and commitment to 
implementing all of the 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:

[[Page 8393]]

    (i) The participating property owner must notify the Service of any 
transfer of lands 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 land.
    (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)(ii) 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 
incidental 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 method of providing incidental 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 its 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 part 17 of this chapter 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 incidental take 
associated with return to baseline and if the permittee chooses to 
exercise that authorization. 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 set forth 
in paragraph (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

[[Page 8394]]

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 Sec.  13.21 of this subchapter and this section or other 
reasons why the permit should not be issued.
    (2) If the Service decides to issue a permit contrary to objections 
received pursuant to paragraph (d)(1) of this section, then 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: Common and scientific names of species sought 
to be covered by the permit, as defined in Sec.  17.3, as well as the 
number of individuals to be taken and the 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, which 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.
    (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). The Director will also 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 this 
paragraph 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, 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

[[Page 8395]]

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.
    (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 its 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 policy and guidance 
in effect at the time of the amendment or renewal decision. 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, habitat 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, the permittee will be authorized 
no further take 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 those set forth in Sec.  
13.28(a)(1) through (4) of this subchapter or unless continuation of 
the permitted activity would be inconsistent with the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been 
remedied.
    (c)(1) Application requirements for an enhancement of survival 
permit associated with conservation benefit agreements. The applicant 
must submit Form 3-200-54, a 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.
    (v) Net conservation benefit: A description of how the measures are 
reasonably expected to improve each covered species' existing baseline 
condition on the enrolled land 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 incidental 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 enrolled land 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 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 conservation benefit 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 land 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 of the 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 lands 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

[[Page 8396]]

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 land.
    (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)(ii) 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 
incidental 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 method of providing incidental 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 its 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 policy and guidance 
in effect at the time of the amendment or renewal decision. 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. 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.
    (i) 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 their property to 
baseline condition, if the permit authorized incidental take associated 
with return to baseline and if the permittee chooses to exercise that 
authorization.
    (ii) 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). The Director may revoke a permit for any reason set forth in 
Sec.  13.28(a)(1) through (4) of this subchapter.
    (i) 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 
paragraph (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.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-02690 Filed 2-8-23; 8:45 am]
BILLING CODE 4333-15-P