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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

[Docket No. FWS–HQ–ES–2021–0152;

FF09E41000 245 FXES111609C0000]

RIN 1018–BF99

Endangered and Threatened Wildlife

and Plants; Enhancement of Survival

and Incidental Take Permits

AGENCY

: U.S. Fish and Wildlife Service,

Interior.

ACTION

: Final rule.

SUMMARY

: We, the U.S. Fish Wildlife

Service (Service), revise the regulations

concerning the issuance of enhancement

of survival and incidental take permits

under the Endangered Species Act of

1973, as amended. The purposes of

these revisions are to: clarify the

appropriate use of enhancement of

survival permits and incidental take

permits; clarify our authority to issue

these permits for non-listed species

without also including a listed species;

simplify the requirements for

enhancement of survival permits by

combining safe harbor agreements and

candidate conservation agreements with

assurances into one agreement type; and

incorporate portions of our five-point

policies for safe harbor agreements,

candidate conservation agreements with

assurances, and habitat conservation

plans into the regulations to reduce

uncertainty. We also made technical

and administrative revisions to the

regulations. The regulatory changes are

intended to reduce costs and time

associated with negotiating and

developing the required documents to

support the applications. We anticipate

that these improvements will encourage

more individuals and companies to

engage in these voluntary programs,

thereby generating greater conservation

results overall.

DATES

: This final rule is effective May

13, 2024.

Information Collection Requirements:

If you wish to comment on the

information collection requirements in

this rule, please note that the Office of

Management and Budget (OMB) is

required to make a decision concerning

the collection of information contained

in this rule between 30 and 60 days after

publication of this rule in the Federal

Register. Therefore, comments should

be submitted to the Service Information

Collection Clearance Officer, U.S. Fish

and Wildlife Service, (see ‘‘Information

Collection’’ section below under

ADDRESSES

) by May 13, 2024.

ADDRESSES

: Public comments and

materials received, as well as supporting

documentation used in the preparation

of this final rule, are available on the

internet at https://www.regulations.gov

in Docket No. FWS–HQ–ES–2021–0152.

Information Collection Requirements:

Written comments and suggestions on

the information collection requirements

should be submitted within 30 days of

publication of this document to https://

www.reginfo.gov/public/do/PRAMain.

Find this particular information

collection by selecting ‘‘Currently under

Review—Open for Public Comments’’ or

by using the search function. Please

provide a copy of your comments to the

Service Information Collection

Clearance Officer, U.S. Fish and

Wildlife Service, 5275 Leesburg Pike,

MS: PRB (JAO/3W), Falls Church, VA

22041–3803 (mail); or Info_Coll@fws.gov

(email). Please reference OMB Control

Number 1018–0094 in the subject line of

your comments.

FOR FURTHER INFORMATION CONTACT

:

Bradley Shoemaker, Chief, Branch of

Recovery and Conservation Planning,

U.S. Fish and Wildlife Service, 5275

Leesburg Pike, Falls Church, VA 22041–

3803; telephone: 703–358–2307.

Individuals in the United States who are

deaf, deafblind, hard of hearing, or have

a speech disability may dial 711 (TTY,

TDD, or TeleBraille) to access

telecommunications relay services.

Individuals outside the United States

should use the relay services offered

within their country to make

international calls to the point-of-

contact in the United States.

SUPPLEMENTARY INFORMATION

:

Background

The purposes of the Endangered

Species Act of 1973, as amended (ESA;

16 U.S.C. 1531 et seq.), are to provide

a means to conserve the ecosystems

upon which listed species depend, to

develop a program for the conservation

of listed species, and to achieve the

purposes of certain treaties and

conventions. Moreover, the ESA states

that it is the policy of Congress that the

Federal Government will seek to

conserve endangered and threatened

species and use its authorities to further

the statutory purposes (16 U.S.C.

1531(c)(1)). The ESA’s implementing

regulations are in title 50 of the Code of

Federal Regulations (CFR).

Generally, ESA section 10(a) allows

the Service to issue permits. The 1982

ESA amendments restructured section

10(a) to provide a mechanism for

issuance of permits to non-Federal

entities to authorize take of listed

species that would otherwise be

prohibited under section 9. Section

10(a)(1)(A) provides for the issuance of

enhancement of survival permits

associated with conservation actions

that are beneficial to the species.

Section 10(a)(1)(B) was added to allow

for the issuance of incidental take

permits to authorize take that is

incidental to, but not the purpose of,

carrying out otherwise lawful activities.

In 1999, we promulgated regulations

(at 50 CFR 17.22(c) and (d) and 50 CFR

17.32(c) and (d)) and finalized policies

regarding safe harbor agreements (SHAs)

and candidate conservation agreements

with assurances (CCAAs) to incentivize

the use of enhancement of survival

permits to further species recovery and

conservation (64 FR 32706, 32717, and

32726; June 17, 1999).

We published minor corrections to

the SHA and CCAA regulations later in

1999 (64 FR 52676, September 30, 1999)

and again in 2004 (69 FR 24084, May 3,

2004). In 2016, we revised the CCAA

regulations (at §§ 17.22(d) and 17.32(d);

81 FR 95053, December 27, 2016) and

policy (81 FR 95164, December 27,

2016) to simplify the net conservation

benefit standard as part of the issuance

criteria.

Section 10(a)(1)(B) allows for the

issuance of incidental take permits

provided the application meets the

statutory issuance criteria (16 U.S.C.

1539(a)(2)(A)(i)–(iv)). In 1985, we

promulgated regulations under section

10(a)(1)(B) (at 50 CFR 17.22(b) and

17.32(b); 50 FR 39681, September 30,

1985). In 1996 we issued guidance in

the form of the Habitat Conservation

Planning and Incidental Take Permitting

Processing Handbook (61 FR 63854,

December 2, 1996). We published an

addendum to the handbook, known as

the ‘‘five-point policy,’’ in 2000 (65 FR

35242, June 1, 2000), and we published

a revised Habitat Conservation Planning

and Incidental Take Permitting

Processing Handbook in 2016 (81 FR

93702, December 21, 2016).

This final rule changes the

implementing regulations for ESA

section 10 related to enhancement of

survival permits supported by SHAs

and CCAAs (§§ 17.22(c) and (d) and

17.32(c) and (d)) and to incidental take

permits supported by habitat

conservation plans (§§ 17.22(b) and

17.32(b)). This rulemaking also changes

relevant portions of 50 CFR part 13

(which applies to all Service permits)

and part 17 (which applies to all Service

permits under the ESA) to incorporate

provisions that are necessary to

implementing §§ 17.22 and 17.32,

excluding §§ 17.22(a) and 17.32(a). This

rulemaking modifies ESA section

10(a)(1)(A) and (B) regulations to

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improve, clarify, and expedite the

Service’s administration of those

provisions (again, excluding §§ 17.22(a)

and 17.32(a)). This rulemaking does not

affect other permits issued under the

ESA, such as import or export permits.

The regulatory changes in this final

rule will reduce the time it takes for

applicants to prepare and develop the

required documents to support

applications for section 10(a) permits

issued under §§ 17.22(b) and (c) and

17.32(b) and (c), thus accelerating

permit issuance and conservation

implementation. This goal will be

accomplished by:

•clarifying the appropriate permit

mechanism for authorizing take;

•simplifying our permitting options

under section 10(a)(1)(A) by combining

CCAAs and SHAs into one agreement

type and allowing the option to return

to baseline;

•providing additional flexibility

under section 10(a)(1)(B) for the Service

to issue permits for non-listed species

only, without requiring that a listed

species also be covered by the permit;

and

•clarifying the requirements for

complete applications under the

provisions at both ESA section

10(a)(1)(A) and (B).

We expect these changes to reduce the

costs and time associated with

negotiating and developing the required

documents to support the applications.

We anticipate that these improvements

will encourage more individuals and

companies to engage in these voluntary

programs, thereby generating greater

conservation results overall.

The regulatory changes in this final

rule clarify under which statutory

provision it is appropriate for the

Service to authorize the proposed take,

either through an enhancement of

survival permit (section 10(a)(1)(A)) or

incidental take permit (section

10(a)(1)(B)). The statutory language in

the ESA clearly reflects Congress’s

intent that take for scientific purposes or

to enhance the propagation or survival

of the affected species should be

authorized under section 10(a)(1)(A)

through an enhancement of survival

permit. By contrast, take that is

incidental to, but not the purpose of, the

carrying out of otherwise lawful

activities is to be authorized under

section 10(a)(1)(B) through an incidental

take permit. Consistent with

congressional intent, when we

determine under which permit authority

to authorize a take, we must first

consider the nature and purpose of the

activities causing the take.

We clarify in the final rule that

enhancement of survival permits

authorize take of covered species, above

the baseline condition, when the

conservation actions in the associated

conservation agreement are of the nature

of improving the condition of the

species or the amount or quality of its

habitat to provide a net conservation

benefit to the covered species (e.g.,

beneficial actions that address threats to

the covered species, establish new wild

populations, or otherwise benefit the

covered species). In contrast, incidental

take permits authorize take that is

incidental to otherwise lawful activities

(e.g., resource extraction, commercial

and residential development, and

energy development), and the

conservation actions in the associated

conservation plan are of the nature of

minimizing and mitigating the impacts

of the anticipated incidental take for the

covered species. Maintaining this

distinction between these two permit

types will ensure that take is authorized

under the proper statutory authority,

reduce confusion for applicants,

expedite the permitting process, and

maximize conservation of listed and at-

risk species.

This final rule clarifies that the

Service may issue enhancement of

survival permits and incidental take

permits for non-listed species without

including a listed species on the permit.

Immediately upon permit issuance, the

permittee will begin implementing the

conservation commitments for the non-

listed covered species. However, the

take authorization will not go into effect

until such time as the non-listed

covered species is listed as either

endangered or threatened, provided the

permittee is complying with the permit

and properly implementing the

agreement or plan. This approach is

consistent with both (1) enhancement of

survival permits currently issued for

non-listed species under 50 CFR

17.22(d) or 17.32(d) and supported by a

CCAA; and (2) incidental take permits

currently issued under 50 CFR 17.22(b)

or 17.32(b) and supported by a

conservation plan that includes both

listed and non-listed species. Our

approach furthers the statutory purposes

of the ESA by encouraging conservation

of fish and wildlife before species

become depleted to the point that they

require listing. This final rule simplifies

the ESA section 10(a)(1)(A) regulations

by covering both listed and non-listed

species for enhancement of survival

permits under §§ 17.22(c) and 17.32(c),

and by rescinding the CCAA regulations

under §§ 17.22(d) and 17.32(d) (which

are incorporated into §§ 17.22(c) and

17.32(c)).

We are clarifying the language in both

§§ 17.22(b) and (c) and 17.32(b) and (c)

to emphasize that our authority extends

to authorizing take that would otherwise

be prohibited under section 9 of the

ESA, rather than to authorize the

applicant’s proposed conservation and

ongoing land management activities or

the otherwise lawful activities that may

result in take of a covered species. In

other words, the issuance of

enhancement of survival or incidental

take permits does not authorize the

covered activities themselves; rather, it

authorizes only the take of covered

species resulting from those activities.

This clarification is specified in

§§ 17.22(b)(1) and 17.32(b)(1) for

regulations related to section 10(a)(1)(B)

permits and at §§ 17.22(c)(1) and

17.32(c)(1) for regulations related to

section 10(a)(1)(A) permits. We further

clarify what constitutes a complete

application for enhancement of survival

and incidental take permits and that the

Service will process an application

when we have determined it to be

complete.

With respect to ESA section

10(a)(1)(A), the regulatory changes in

this final rule combine the SHA and

CCAA into one type of conservation

agreement, called a conservation benefit

agreement. We use the term

‘‘conservation benefit agreement’’ or

‘‘conservation agreement’’ to describe

the supporting document required for

an enhancement of survival permit. This

rule simplifies the process for new

conservation agreements developed in

support of enhancement of survival

permit applications. This rule also

establishes that applicants for an

enhancement of survival permit have

the option to return the property to

baseline conditions. We define

‘‘baseline condition’’ to mean the

population estimates and distribution or

habitat characteristics across the

enrolled property that currently sustain

seasonal or permanent use by the

covered species at the time a

conservation agreement is executed by

the Service and the property owner or

by a programmatic permit holder and

the property owner. Allowing

applicants to choose whether to return

to baseline condition provides more

flexibility in the agreement and may

increase participation. In addition, we

clarify that the Service may issue

enhancement of survival permits that

authorize both incidental and

purposeful take that may result from

implementing beneficial actions under

the conservation agreement, such as

reintroducing a species to a covered

property or capturing and relocating a

covered species that has dispersed to an

adjacent property not subject to the

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agreement. After the effective date of

this final rule, the Service will no longer

implement the SHA and CCAA policies.

With respect to ESA section

10(a)(1)(B), the regulatory changes in

this final rule incorporate aspects of the

five-point policy for incidental take

permits and guidance from the 2016

Habitat Conservation Planning

Handbook to reduce confusion and

streamline the permitting process.

Clarifications include a description of

the requirements for a complete

incidental take permit application and

revisions to the corresponding

incidental take permit issuance criteria.

We use the term ‘‘habitat conservation

plan’’ or ‘‘conservation plan’’ to

describe the supporting document

required for an incidental take permit.

Nothing in these revisions to the

regulations is intended to require that

any previous permits issued under ESA

section 10(a)(1)(A) or (B) be reevaluated

when this rule is effective. For

applications in process and published

in the Federal Register prior to the

effective date of this rule, applicants

will not be required to meet the new

regulatory requirements. However,

applications for new permits, renewals,

or amendments received after the date

specified above in

DATES

are subject to

the revisions in this final rule.

This Rulemaking Action

Part 13 of title 50 of the Code of

Federal Regulations sets forth general

permitting regulations that apply to all

permits issued by the Service. This rule

amends 50 CFR part 13 to address the

specific revisions in 50 CFR 17.22 and

17.32 and clarifies how the Service

administers permits under §§ 17.22 and

17.32. This final rule rescinds

§§ 17.22(d) and 17.32(d); the references

in part 13 to those paragraphs are

removed and modified to reference the

remaining paragraphs (i.e., references to

§ 17.22(b) through (d) are changed to

§ 17.22(b) and (c), and references to

§ 17.32(b) through (d) are changed to

§ 17.32(b) and (c)).

Clarification of ESA Section 10(a)(1)(A)

and (B)—Purpose

Section 10(a)(1)(A) of the ESA

authorizes the issuance of permits,

under certain terms and conditions, for

any act otherwise prohibited by section

9 for scientific purposes or to enhance

the propagation or survival of the

affected species. In 1999, the Service

further clarified in §§ 17.22(c) and (d)

and 17.32(c) and (d) and the SHA and

CCAA policies that conservation actions

to enhance the survival of affected

species would be authorized under ESA

section 10(a)(1)(A) enhancement of

survival permits. The permit is intended

to incentivize voluntary conservation by

authorizing take of covered species that

may result from implementing the

approved conservation agreement

(formerly SHA or CCAA) and providing

assurances that the Service will not in

the future require an increased

commitment or impose additional

restrictions on the permittee’s current

management and use of land, water, or

financial resources. As a result, a

property owner may continue ongoing

activities and implement beneficial

conservation measures without concern

that their activities may be curtailed by

increasing populations or distribution of

a listed species or a species that may

become listed in the future. Therefore,

property owners managing or improving

habitat that could be used by a species

that is listed or could be listed, or

establishing new populations of such

species, have an incentive to continue

their activities without fear of being

subjected to increased regulatory

burdens in the future. In general, take

associated with working lands (e.g.,

agriculture and silviculture) that are

managed in a sustainable fashion to

improve conditions for listed and at-risk

species, may be appropriate under this

authority depending upon the proposed

covered activities.

The authority granted under ESA

section 10(a)(1)(B) allows the Service to

issue permits to authorize take that

would otherwise be prohibited by

section 9(a)(1)(B), provided the taking is

incidental to, and not the purpose of,

carrying out an otherwise lawful

activity. Under section 10(a)(1)(B), the

impacts of the take associated with the

otherwise lawful activities must be

minimized and mitigated to the

maximum extent practicable, i.e., the

nature of the associated conservation

plan is a mitigation plan to minimize

and offset the adverse impacts to the

species that are incidental to otherwise

lawful activities. The purpose is to

provide a means for ESA compliance

when otherwise lawful activities may

result in incidental take of listed

species. In contrast, under section

10(a)(1)(A), the primary purpose is to

incentivize voluntary conservation of

listed and at-risk species.

Take Authorization for Non-Listed

Species Under ESA Section 10(a)(1)(A)

and (B)—Authorities and Rationale

The Service currently issues both

enhancement of survival and incidental

take permits that cover take of listed as

well as non-listed species if they

become listed in the future. These

permits are issued upon the Service’s

approval of the application, and

implementation of the conservation

measures for the non-listed species

begins upon issuance of the permit. If a

non-listed species becomes listed, the

take authorization becomes effective

upon the date of listing, provided that

the permittee is in full compliance with

the enhancement of survival or

incidental take permit. This approach is

supported by the House of

Representatives Report on the

Endangered Species Act Amendments

of 1982, which reflects that Congress

contemplated that non-listed species

could be covered in conservation plans.

H.R. Rep No. 97–835 (Sept. 17, 1982), at

30 (‘‘Although the conservation plan is

keyed to the permit provisions of the

Act which only apply to listed species,

the Committee intends that conservation

plans may address both listed and

unlisted species.’’) (emphasis added).

On June 17, 1999, the Service

published the CCAA Policy (64 FR

32726) and implementing regulations at

50 CFR 17.22(d) and 17.32(d) (64 FR

32706) under ESA section 10(a)(1)(A)

for issuing enhancement of survival

permits for non-listed species. The

Service further revised this policy and

the regulations in 2016 (81 FR 95053

and 95164; December 27, 2016). Since

the initial policy and regulations were

published, the Service has issued 69

enhancement of survival permits for

non-listed species in association with a

CCAA; 62 of these continue to be

implemented.

Clarifying in the regulations that we

can issue permits that address only non-

listed species under ESA section

10(a)(1)(B) is consistent with

congressional intent to provide long-

term regulatory assurances and builds

on the success demonstrated by the

CCAA program. Recognizing our ability

to authorize take of non-listed species

under section 10(a)(1)(B) if they become

listed under the ESA, alone or combined

with listed species, will help to ensure

that take is authorized under the

appropriate permit authority depending

upon whether it is associated with

beneficial conservation actions or

incidental to otherwise lawful activities.

This clarification reduces confusion and

eliminates debate regarding the

appropriate permit authority by which

take should be authorized, thereby

allowing the planning efforts to be

focused on the permitting mechanism

that is applicable to the project purpose.

We acknowledge that the 2016 Habitat

Conservation Planning Handbook

reflects current policy, stating that

applicants must include at least one

ESA-listed species in a conservation

plan. We plan to update the handbook

accordingly to remove this requirement.

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Clarifications

Service Authority Extends To

Authorizing Take, Not Authorizing the

Activities

Existing language in § 17.22(b)(1) and

(c)(1) and § 17.32(b)(1) and (c)(1) refers

to authorizing activities that are

prohibited. The ESA prohibits take of

listed species, not the activities that

cause take. Therefore, in this final rule

we clarify that, under these authorities,

the Service authorizes take and not the

underlying activities themselves. This

change will reduce confusion among

applicants and the interested members

of the public who review and provide

comments on permit applications.

Expediting the Development of

Conservation Agreements and

Conservation Plans

One of the common concerns

expressed by applicants for permits

under section 10(a)(1)(A) or (B) is the

amount of time and resource investment

it takes to develop the necessary

documents to support the applications.

The application process for an

enhancement of survival permit or

incidental take permit is divided into

three phases: (1) preapplication (project

proponent or property owner decides

whether to apply for a permit); (2)

conservation agreement or plan

development and submission of a

complete application to the Service; and

(3) application processing (the Service

processes the complete application and

makes a permit decision).

While the Service has successfully

implemented measures to ensure the

efficient processing of permit

applications once they are deemed

complete, we have not been as

successful with expediting the

preapplication and conservation

agreement or plan development phases,

despite the updated guidance provided

respectively in the 2016 Habitat

Conservation Planning Handbook and

current SHA and CCAA regulations,

policies, and guidance. This outcome

may be due to several factors, such as

the size and complexity of the proposed

project; number of species for which

take is sought; and, in some cases,

challenges to the interpretation of our

regulations, policies, and guidance.

Resolving issues that arise during

development of the conservation

agreement or plan often requires the

expenditure of a significant amount of

time and resources by both the

applicant and the Service. This situation

can result in delays to the applicant’s

project implementation and limit the

Service’s ability to provide timely

assistance to other applicants.

To provide clarity, reduce confusion,

and save time, both for applicants and

the Service, this final rule clarifies the

current regulations and revises the

requirements for permit applications in

§ 17.22(b)(1) and (c)(1) and §17.32(b)(1)

and (c)(1) by codifying portions of the

2016 Habitat Conservation Planning

Handbook, five-point policy, SHA

policy, and CCAA policy, as applicable.

These clarifications address the

requirements that an applicant must

meet for the Service to: (1) determine

that an application is complete, (2)

publish the receipt of a complete

application, (3) begin processing the

application, and (4) make a permit

decision consistent with section 10 of

the ESA.

This final rule refines the incidental

take permit issuance criteria under

§ 17.22(b)(2) and §17.32(b)(2) for plans

permitted under ESA section 10(a)(1)(B)

to align with the statute, existing policy,

and practice. These revisions, along

with the revised requirements for a

complete application, will lead to more

efficient permit application processing

and decision-making and provide a

better record supporting our permit

decision. The issuance criteria for

conservation agreements permitted

under ESA section 10(a)(1)(A) will

remain unchanged, although we clarify

the meaning of ‘‘net conservation

benefit’’ in the definitions section at

§ 17.3. The revisions in this final rule

related to issuance criteria in parts 13

and 17 are limited to enhancement of

survival and incidental take permits

issued under §§ 17.22 and 17.32,

excluding §§ 17.22(a) and 17.32(a), and

do not affect other permits issued under

the ESA, such as import or export

permits, or permits issued under other

statutes.

Permit Renewal and Amendment

Processes

The regulatory changes in this final

rule clarify that permit renewals and

amendments, or a combination thereof,

are subject to the current laws and

regulations. The application must be

evaluated under current policies and

guidance in place at the time of the

decision on the renewal or amendment.

For amendments to enhancement of

survival or incidental take permits, the

scope of the Federal decision extends

only to the requested amendment, not to

the previously approved permit or

unchanged portions of the conservation

agreement or plan. The terms of the

original permit, including the take

authorization and assurances, remain in

effect. The proposed amendment is the

only change that is considered.

Providing these clarifications will

reduce confusion and reassure

permittees applying for renewals and

amendments that the Service will not

reconsider all provisions of their

existing permits and conservation

agreements or plans, thereby expediting

development of a complete application

and processing of that application.

Changes From the Proposed Rule

Based on comments we received on

the proposed rule (88 FR 8380, February

9, 2023), and to provide clarifications,

we include the changes described below

to the proposed regulations. Other than

these revisions, we are finalizing the

rule as proposed:

1. In the preamble to this final rule

and in 50 CFR part 13, we made

editorial corrections to clarify that this

rule pertains only to ESA section 10(a)

permits issued under 50 CFR 17.22 and

17.32.

2. In the preamble, we made edits to

further clarify and address confusion

regarding the appropriate provision of

ESA section 10(a) under which the

Service will authorize take.

3. In § 17.3, we made the following

changes:

a. Added ‘‘across’’ to the definition of

‘‘baseline condition’’ to reflect that we

evaluate the baseline for the entire area

to be enrolled in the agreement. We also

addressed situations in which the

species and habitat are already

adequately managed to the benefit of the

species and explained how the

landowner can achieve a net

conservation benefit.

b. Revised the definition of ‘‘changed

circumstances’’ to add ‘‘effects of

climate change’’ as an example of a

changed circumstance.

c. To reduce confusion, we revised

the definition of ‘‘covered species’’ by

substituting the term ‘‘at-risk’’ for

‘‘reasonable potential to be considered

for listing’’ and explaining what at-risk

means in the definition.

d. Clarified the definition of ‘‘net

conservation benefit’’ by stating the

improvements in the condition must be

expected to result from implementation

of the conservation agreement. We also

clarified that maintenance of good

quality habitat and addressing future

threats under the control of the property

owner would qualify as meeting the net

conservation benefit standard.

e. Revised the definition of ‘‘property

owner’’ to reflect that owners have

‘‘rights’’ to water or other natural

resources, not actual ownership of those

resources and added Tribal laws and

regulations ‘‘sufficient to carry out the

proposed activities, subject to

applicable State and Federal laws and

regulations.’’

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4. In §§ 17.22(b)(1)(ii) and

17.32(b)(1)(ii), to reduce confusion

regarding covered species, we removed

the phrase ‘‘of the individuals to be

taken.’’

5. In §§ 17.22(b)(1)(viii) and

17.32(b)(1)(viii), for consistency with

the five-point policy (65 FR 35242, June

1, 2000), we clarified that the

appropriate scope of the effectiveness

and compliance monitoring programs

for incidental take permits should be

commensurate with the scope and

duration of the operating conservation

program and proposed project impacts.

6. In §§ 17.22(b)(3) and 17.32(b)(3), we

added a reference to ‘‘§§ 17.22(b)(1)(xi)

and 17.32(b)(1)(xi)’’ to clarify that we

have the authority to include additional

permit conditions, if necessary.

7. In § 17.22(b)(5)(i)–(iii) and

§ 17.32(b)(5)(i)–(iii), we corrected an

oversight that had omitted these

sections.

8. In the regulations at §§ 17.22(c)(5)

and 17.32(c)(5), we corrected a reference

that had indicated that assurances

extend only to neighboring landowners

in § 17.22(c)(5)(ii). We corrected this

reference to § 17.22(c)(5)(i) to indicate

that assurances apply to all

enhancement of survival permittees and

participating property owners.

9. For consistency throughout

§§ 17.22(c) and 17.32(c), where we used

the term ‘‘enrolled land,’’ we replaced it

with ‘‘enrolled property’’ where

appropriate.

Summary of Comments and Responses

In our proposed rule to revise the

regulations for ESA section 10(a)(1)(A)

and (B) published on February 9, 2023

(88 FR 8380), we requested public

comments. By the close of the public

comment period on April 10, 2023, we

received 71 public comments on our

proposed rule. We received comments

from various sources, including

individual members of the public,

States, Tribes, industry organizations,

corporations, permittees, applicants,

legal foundations and firms, and

environmental organizations. In general,

we received a wide range of comments,

often multiple pages, that ranged from

full support of the changes to general

opposition. However, most commenters

either expressed support and provided

recommendations to further improve the

regulations or expressed opposition to

the proposed regulations but included

suggestions to make the changes

acceptable.

We reviewed all public comments

prior to developing this final rule but

did not incorporate or respond to

comments that are not relevant to or are

beyond the scope of this rulemaking

action. Summaries of the substantive

comments and our responses are

provided below. We combined similar

comments where appropriate. They are

organized as comments specific to: both

conservation benefit agreements and

habitat conservation plans; conservation

benefit agreements; habitat conservation

plans; and required determinations.

Comments Regarding Conservation

Benefit Agreements and Habitat

Conservation Plans

Comment 1: Several commenters

requested that company affiliates,

associates, subsidiaries, corporate

families, and assigns of an applicant be

included in the definition of

‘‘applicant’’ and be covered by

incidental take and enhancement of

survival permits, and they requested

that we explain the rationale for

exclusion.

Response: These entities are excluded

from the definition of ‘‘applicant’’

because we must be able to specifically

identify the permittee and determine if

the permittee is eligible to hold a permit

under § 13.21. In addition, if the permit

is issued, we must be able to specifically

identify who is responsible for any

permit violations that may occur.

Comment 2: Two commenters

requested that we add language to

recognize that an entity with the power

of eminent domain is a proper applicant

for an incidental take permit even where

all or portions of the permit area are not

owned or controlled by the entity with

the power of eminent domain at the

time the Service processes the permit

application. In addition, one of the

commenters suggested that, where the

Service has concerns about an

applicant’s ability to implement a

habitat conservation plan despite the

applicant possessing the power of

eminent domain, the Service may

include a permit condition indicating

the incidental take permit will not be

effective (i.e., will not authorize

incidental take) unless and until

requisite ownership or control of the

permit area has been obtained by the

applicant.

Response: This comment is outside

the scope of the proposed regulation

revisions, and the requested changes

would not further our goals of reducing

confusion and streamlining the

permitting process. However, we will

consider providing additional guidance

on this topic in the next update to the

Habitat Conservation Planning

Handbook.

Comment 3: Several commenters

stated they oppose the rule because it

judges projects based on their implied

purpose rather than their conservation

outcomes. They further asserted that the

subjective interpretation of ‘‘primary

purpose’’ of the agreement is likely to

make most projects ineligible for

conservation agreements, regardless of

whether the projects would benefit

species conservation.

Response: We considered different

ways to articulate how we intend to

determine under which permit authority

to authorize the requested take. The

purposes of section 10(a)(1)(A) and

section 10(a)(1)(B) are inherently

different. The former is to issue

enhancement of survival permits that

authorize take associated with

conservation agreements and ongoing

land management activities that provide

a net conservation benefit to the covered

species. The latter is to issue permits

that authorize take that is incidental to,

but not the purpose of, carrying out

otherwise lawful activities where the

impacts to the covered species must be

minimized and mitigated. To determine

the appropriate permit authority, we

intend to look at the nature and purpose

of the proposed activities and the

anticipated outcomes of the take. For an

enhancement of survival permit, the

purpose and anticipated conservation

outcome of the covered activity must be

to provide a benefit to the species

covered by the permit, i.e., to improve

the condition of a species, the amount

or quality of its habitat, or both.

Conversely, for an incidental take

permit, the purpose and anticipated

outcome of the covered activity is to

carry out otherwise lawful activities that

are likely to result in incidental take

that is harmful to the species and

requires mitigation (e.g., activities that

convert habitat to other uses). Thus,

using the primary purpose and

anticipated conservation outcome of the

project provides a straightforward

method for applicants to determine

which type of permit to pursue and is

consistent with Congress’s intent in

creating the two different types of

permits.

It is unclear what the commenter

means by ‘‘implied purpose,’’ but the

Service anticipates that applicants will

provide sufficient information to allow

us to evaluate each project’s primary

purpose and intended conservation

outcome. We will consider the

circumstances on a case-by-case basis to

decide which permit type is appropriate

for the project.

Comment 4: One commenter asserted

there were two flaws in the proposed

distinction between incidental take and

enhancement of survival permits: (1) the

distinction would push more projects

into incidental take permits, which

would have a negative effect on

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endangered species conservation

because of the lower conservation

standard of these permits, and (2) the

process for obtaining an incidental take

permit is inefficient, which would result

in delays for a larger number of projects

if more were pushed to these permits.

The commenter further asserted that the

high price tag of developing habitat

conservation plans, which on average is

greater than $1 million, would

effectively eliminate the incentive for

voluntary conservation within the

private sector.

Response: There are inherent

differences in the conservation

standards between enhancement of

survival permits (requiring a net

conservation benefit) and incidental

take permits (requiring minimization

and mitigation to the maximum extent

practicable). This difference is due to

the intended purpose of the authorized

take under each type of permit.

However, conservation for listed and

non-listed species can be achieved

through both conservation agreements

and conservation plans. Providing a

clear distinction in the regulations

under which statutory provision we will

authorize take is critical to the proper

implementation of both voluntary

conservation programs. We

acknowledge that the costs of

developing conservation plans can be

significant, but we do not view that

issue as an appropriate basis for issuing

an enhancement of survival permit for

a project that is not primarily aimed at

conservation and involves incidental

take. The regulatory revisions are also

intended to create efficiencies in the

negotiation and permitting processes

that will benefit applicants for both

permit types. We also intend to explore

additional measures to improve the

efficiency of the incidental take

permitting process, and we will

consider new policies or updates to the

Habitat Conservation Planning

Handbook to implement such measures.

Comment 5: One commenter

suggested the Service should provide

additional clarification and explanation

regarding the types of activities that may

be covered by an enhancement of

survival permit as compared to an

incidental take permit.

Response: While certain types of

activities are clearly more appropriate

for an incidental take permit versus an

enhancement of survival permit, such as

housing developments and new

infrastructure development, it is not

possible to list all the different types of

activities that could be covered by each

permit type. To determine the

appropriate permit authority, we will

consider, on a case-by-case basis, the

applicant’s purpose for seeking a permit

and the anticipated conservation

outcome of the activity. We intend to

provide additional guidance on this

topic in our respective handbooks.

Comment 6: One commenter stated

that the Service goes beyond our

statutory authority to require project

proponents to utilize incidental take

permits. The commenter stated that,

where a project proponent seeks to

implement voluntary conservation

measures (e.g., preserving habitat,

implementing operational controls, or

funding research) for non-listed

species—species for which the take

prohibition does not apply—the Service

should not dictate the type of

conservation agreement to use.

Response: Whether to pursue a permit

is voluntary, but once applicants make

that choice, our responsibility is to

determine both that applicants are

pursuing the appropriate permit and

whether an application under the

appropriate permit authority is

complete. With the changes we are

making to our regulations, the

appropriate permit (incidental take

versus enhancement of survival) does

not depend on the species an applicant

is seeking to include, whether a listed

or non-listed species. Rather, it depends

on the primary purpose and anticipated

conservation outcome of the project and

the proposed covered activities for

which take authorization is requested.

Comment 7: Some commenters stated

that it is broadly beneficial to provide

more clarity about the application of

enhancement of survival and incidental

take permits but requested that we

clarify how the primary purpose of

activities will be determined and ensure

that the standard does not inadvertently

limit the ability of agricultural

producers to seek enhancement of

survival permits for their activities.

Response: The type of applicant does

not dictate which type of permit is

appropriate for the activity. We will

consider the project information

provided by potential applicants and

work with them on a case-by-case basis

to determine their primary purpose for

requesting a permit, the anticipated

conservation outcomes of their project,

the activities for which they are seeking

take coverage, and the associated plan

or agreement. This clarification does not

restrict or limit eligible applicants for

enhancement of survival permits. In

general, take associated with working

agricultural lands that are managed in a

sustainable fashion to improve

conditions for listed and at-risk species

may be appropriate for permitting

through a conservation agreement,

depending upon the proposed covered

activities.

Comment 8: One commenter

requested that we clarify that energy

project proponents continue to have the

flexibility to choose between either an

enhancement of survival or incidental

take permit depending on the primary

purpose of the covered activity.

Response: Energy project proponents,

as well as other project applicants,

should seek assistance from the Service

early in the preapplication and project

planning phase to ensure the

appropriate permit is pursued. When

deciding under which permit authority

to authorize take, we consider the

primary purpose of the project and

anticipated conservation outcomes,

regardless of the identity of the

applicant.

Comment 9: One commenter asserted

that for some renewable energy projects

an enhancement of survival permit may

provide a regulatory mechanism to seek

coverage while the applicant is

researching, developing, or testing a

novel mitigation technology or

technique. The commenter further

stated that the last 20 years of such

advancements in renewable energy

show promise, but that mitigation

technology remains a nascent industry,

and the Service is uniquely situated to

provide a regulatory incentive for

renewable energy companies to further

invest in such technologies and

techniques. For these reasons, the

commenter recommends that we ensure

sufficient flexibility in our regulations

so that renewable energy development

activities are not prohibited under

enhancement of survival permits,

especially related to listed species and

the investment in minimization research

and development. Some commenters

recommended that the Service allow

research as a mitigation option, while

others objected to the recommendation,

stating that it would authorize take

without properly mitigating the impacts

of the taking. However, commenters

stated that if research is allowed as

mitigation, the regulations should

clarify that both the research and the

informed conservation must be

requirements of the associated

incidental take permit and the

mitigation must offset the impacts of the

taking, not just inform future

conservation.

Response: As stated in our mitigation

policy, research that is directly linked to

reducing threats or that provides a

quantifiable benefit to the species may

be appropriate when: (a) the major

threat to a resource is something other

than habitat loss, (b) the Service can

reasonably expect the outcome of

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research or education to offset the

impacts, or (c) the proponent commits

to using the results of the research to

mitigate impacts. Research should be

included as part of a mitigation package

only when other reasonable options for

mitigation have been fully exhausted. In

general, energy development projects do

not have a primary purpose of habitat

and species conservation and should

seek incidental take permits.

Comment 10: Several commenters

urged us to clarify and explain what

type of activities may be covered by an

enhancement of survival permit as

opposed to an incidental take permit.

The commenters further stated that,

because we intend to combine SHAs

and CCAAs into a single type of

conservation agreement to support the

issuance of an enhancement of survival

permit, we should also clarify the full

scope of activities, formerly covered by

a CCAA, that would be eligible for

inclusion in a conservation agreement.

One commenter also stated that it is

unclear whether all the activities

currently covered by a CCAA and

associated permit would still be eligible

for inclusion in a conservation

agreement.

Response: Because of the extent of

variability among projects, it is not

possible for us to categorize all the types

of activities that might be covered by an

enhancement of survival permit as

opposed to an incidental take permit.

With the changes we are making to

these regulations, it is possible that

some activities affecting non-listed

species that are included in existing

CCAAs may in the future be found more

appropriate for authorization though an

incidental take permit. But, as

previously stated, we would consider

the purpose for applying for a permit,

the anticipated conservation outcome,

and covered activities to determine

which permit is appropriate.

Comment 11: A commenter asserted

that applicants seeking an enhancement

of survival permit may propose a variety

of activities for incidental take

authorization. They stated that the

‘‘primary purpose’’ of the conservation

agreement may not be solely to ‘‘benefit

the covered species’’ but could include

a variety of other purposes depending

on the needs and objectives of the

applicant. The commenter suggested

that instead of requiring a ‘‘primary

purpose’’, the objective of enhancement

of survival permits should be

‘‘providing a benefit to the covered

species’’ irrespective of the primary

purpose of the conservation agreement.

Another commenter suggested adding

the language shown here in brackets:

Enhancement of survival permits

authorize take of covered species, above

the baseline condition, when the

primary purpose of the associated

conservation agreement is to implement

beneficial actions that address threats to

the covered species, establish new wild

populations, or otherwise benefit the

covered species; [or where the land or

water management actions covered by

the conservation agreement benefit the

species even though the primary

purpose of those actions may not be

conservation].

Response: Because both conservation

agreements and plans may provide a

benefit to the covered species, providing

such a benefit is not a sufficient basis to

distinguish between them. Rather, it is

appropriate to consider the primary

purpose and the anticipated

conservation outcomes in the context of

conservation agreements to further the

statutory purpose of section 10(a)(1)(A),

enhancing the propagation or survival of

the species. We have clarified in the

preamble that the conservation actions

in the associated conservation

agreement or plan will be used to

determine the appropriate permitting

authority. We have also clarified that

take from both proposed conservation

activities and ongoing land management

can be authorized under enhancement

of survival permits. Additionally, as

discussed in response to comment 4,

both conservation agreements and plans

can provide conservation benefits to

listed and non-listed species even

though the standards under each

authority are different.

Comment 12: One commenter

believes that conservation agreements

will primarily apply to activities

designed to enhance the survival of the

species and not, as some past CCAAs

have allowed, to provide take

protections for economic activities that

could incidentally take the species. The

commenter indicated that we should

clarify this issue in the regulations and

on the corresponding application forms.

Response: Clarifying in the

regulations that a conservation plan can

be developed without inclusion of a

listed species will allow incidental take

permits to be pursued where previously

enhancement of survival permits were

deemed the only option because of the

former policy that incidental take

permits applications must include at

least one listed species. Basing the

distinction between incidental take and

enhancement of survival permits on the

primary project purpose and anticipated

conservation outcome will ensure that

take is authorized under the appropriate

authority. We will include additional

guidance in our handbooks to further

address this issue.

Comment 13: Several commenters

asserted that renewable energy projects

serve a conservation purpose and are

vital to addressing climate change,

which is causing long-term impacts on

species. The commenters stated that

renewable energy projects may have

short-term or immediate impacts on

species, but such impacts are likely

offset by the long-term benefits that

these projects collectively create. They

further stated that, where opportunities

exist to recognize these benefits,

expediting permits for projects that

address climate change will provide a

greater incentive for implementing

renewable energy projects.

Response: We acknowledge that many

renewable energy projects will reduce

greenhouse gas emissions and the

otherwise-anticipated harmful effects of

climate change on species and the

environment. The regulatory changes in

this rule are intended to help streamline

the regulatory process for all applicants,

including proponents of renewable

energy projects, and decrease the time

for permit approval and issuance. When

reviewing a plan or agreement, we

consider its duration to determine if the

issuance criteria and standards can be

met during that timeframe.

Comment 14: One commenter

suggested that the issuance criteria (50

CFR 17.22(c)(1)) be amended to

expressly require that the purpose of the

proposed conservation agreement must

be to provide a conservation benefit for

the species through enhancing its

propagation or survival.

Response: It is not necessary to add

this language to § 17.22(c)(1) because

the issuance criteria at §§ 17.22(c)(2)(ii)

and 17.32(c)(2)(ii) already require that

‘‘the implementation of the terms of the

conservation agreement is reasonably

expected to provide a net conservation

benefit.’’

Comment 15: Several commenters

were concerned that the proposed rule

appeared no longer to apply ‘‘no

surprises’’ assurances to enhancement

of survival permits according to current

practice. They stated that we should

retain the existing ‘‘no surprises’’

assurance regulations for conservation

agreements and plans and apply them to

incidental take and enhancement of

survival permits. The commenters

asserted that, while the Service states

that the well-established ‘‘no surprises’’

assurances will continue to apply, the

proposed regulatory revisions suggest

otherwise. Several commenters pointed

out that the proposal appears to

inadvertently omit the existing language

on ‘‘no surprises’’ assurance in

§ 17.22(b)(5) and (c)(5), as well as in

§ 17.32(b)(5) and (c)(5). The commenters

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stated that, assuming that this was an

inadvertent omission, we should correct

the error when finalizing the rule by

reinserting subparagraphs (i), (ii), and

(iii) in §§ 17.22(b)(5) and 17.32(b)(5).

Response: As stated in the proposal,

we intend to retain ‘‘no surprises’’

assurances for both permit types. In this

final rule, for enhancement of survival

permits we revised § 17.22(c)(5) and

§ 17.32(c)(5) so that the assurances

apply to § 17.22(c)(5) and §17.32(c)(5)

in their entirety, not just to each

paragraph (c)(5)(ii). Regarding

incidental take permits, the proposed

regulatory revisions do not alter the

protections provided by the ‘‘no

surprises’’ rule, but there was an

inadvertent omission in §§ 17.22(b)(5)

and 17.32(b)(5), which we corrected.

Comment 16: Several commenters

stated that the assurances referenced in

new §§ 17.22(c)(5) and 17.32(c)(5)

should apply to all sections of

§ 17.22(c)(5), and not just paragraph

(c)(5)(ii). Another commenter stated that

the proposed definition of ‘‘changed

circumstances’’ appears to limit the

application of the current no surprises

assurances to conservation plans and

incidental take permits, thus leaving out

conservation agreements and

enhancement of survival permits.

Response: We revised the references

in §§ 17.22(c)(5) and 17.32(c)(5), so that

the assurances apply not just to

neighboring property owners, but to all

property owners who participate in a

conservation agreement. Additionally,

we did not intend to limit the no

surprises assurances to conservation

plans. Although we deleted the

requirement for a changed

circumstances section in a conservation

agreement, these concepts are

incorporated into the monitoring and

adaptive management portions of the

agreement.

Comment 17: Several commenters

supported the proposed clarification

that we authorize the incidental take

and not the underlying otherwise lawful

activity and land use. One commenter

stated that, in the introductory language

of 50 CFR 17.22, § 17.22(a)(1), and all

other places in § §17.22 and 17.32

where a ‘‘permit for an activity’’ is

described, the language should be

revised to ‘‘permit for take associated

with a covered activity.’’ The

commenter also stated that all

references to an ‘‘activity’’ may need to

be changed to a ‘‘covered activity.’’

Response: We did not propose any

changes to §§ 17.22(a) or 17.32(a).

Rather, the proposed revisions were

limited to §§ 17.22(b) and (c) and

17.32(b) and (c). Therefore, we are not

making any changes to §§ 17.22(a) or

17.32(a) in this final rule.

Comment 18: One commenter

asserted that, if a permittee proceeds

with the activities that would otherwise

be unlawful under the ESA, then the

Service is in effect authorizing those

activities by issuing the permit and the

Service’s scope must analyze the

impacts of the covered activities under

the National Environmental Policy Act

(NEPA).

Response: As we explain in the

regulatory language, the permit does not

authorize the covered activities

themselves, and the Service does not

have the authority to approve the

activities. Rather, the permit authorizes

take that may be associated with the

activities and which would otherwise be

prohibited under section 9 of the ESA.

Therefore, the Federal action is the

decision whether to issue a permit that

authorizes take, and the appropriate

scope of our analysis under NEPA

includes the direct and indirect effects

of the permitting decision (i.e.,

authorizing take of the covered species)

on the human environment.

Comment 19: One commenter stated

that the proposed regulations indicate

that the scope of authorization in

section 10(a)(1) of the ESA is limited to

the take of covered species, which

should mean that the National Historic

Preservation Act (NHPA) is not

triggered, especially because the permits

are for non-Federal actions. The

commenter asserted, however, that the

Service likely does not interpret the

proposed text this way, as doing so

could cause confusion. The commenter

indicated that if we expect incidental

take and enhancement of survival

permits to be an NHPA trigger, we

should not say the scope of

authorization is limited to species take.

Response: Because the action of

issuing a permit is a Federal

undertaking as defined in 36 CFR

800.16(y), we are subject to section 106

compliance under the National Historic

Preservation Act. Clarifying that the

scope of our permit authorizes the take,

not the activities causing the take,

ensures that the area of potential effect

is appropriately determined.

Comment 20: One commenter stated

that the regulations should limit section

10 enhancement of survival permits to

activities that actually enhance the

survival or propagation of a species. The

commenter shared an example where

capturing the animal is necessary for its

own benefit and protection and to assist

its conservation in the wild. The

commenter further asserted that

purposeful take that is not expected to

directly benefit the animal being taken

should not be allowed under the

regulations because that activity does

not enhance the survival or propagation

of the species.

Response: Any purposeful take that is

authorized through an enhancement of

survival permit must directly benefit the

covered species and be necessary to

provide for its conservation through

implementation of the conservation

agreement. The commenter’s example is

a situation where it might be

appropriate for the Service to authorize

purposeful take that is necessary to

implement a conservation agreement.

Comment 21: One commenter

asserted that the Service needs a means

to track take and that we should require

a standardized self-reporting duty that

all parties can understand and

meaningfully comply with. Another

commenter suggested we develop

procedures for monitoring compliance

with incidental take permits and for

tracking cumulative take to ensure

excessive take allowances are not

granted.

Response: For all incidental take and

enhancement of survival permits, we

require that permittees report take that

occurs during their annual reporting

period. We are developing mechanisms

to collect this information when

permittees submit their annual reports

through the online ePermits system,

which we will incorporate into our

internal project tracking system—

ECOSphere—where the data will be

available to all Service biologists for use

in conservation decision-making.

Comment 22: One commenter stated

that the required conservation

agreement elements do not include a

section on take or assurances provided

to property owners and the regulation

does not clearly describe how these

elements are incorporated into the

conservation agreement and permitting

process for an enhancement of survival

permit. The commenter also asserted

that we did not address the duration for

conservation agreements and requested

that we define these elements and

incorporate them into the agreement or

permit.

Response: The assurances for

conservation agreements are included in

50 CFR 17.22(c)(5) and 17.32(c)(5). In

addition, duration of agreements is

included under §§ 17.22(c)(4) and

17.32(c)(4). Both assurances and the

agreement duration are elements that

are included in every conservation

agreement.

Comment 23: One commenter stated

that the proposed changes regarding the

appropriate use of monitoring data in

the renewal or amendment process are

vague. The commenter asserted that,

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while the proposed regulation

emphasizes using monitoring data to

evaluate the effectiveness of mitigation,

in practice this has often just involved

monitoring a conservation crediting site.

The commenter requested, given the

interest in accounting for landscape-

scale effects and the recent Presidential

memo on ecological connectivity, that

we include language to encourage

monitoring habitat occupancy near the

site of habitat loss whenever possible,

which could include using

environmental DNA techniques. The

commenter asserted that an

enhancement of survival permit for the

neighboring property could be used to

justify monitoring and management of

habitat to understand if a landscape-

effect due to a nearby take has occurred.

Response: We agree that information

on the species and habitat located near

a plan or agreement area would be

useful in an overall assessment of the

status of the species, but we cannot

require that a permittee monitor areas

beyond those covered by a permit. In

addition, using the neighboring property

owner provisions of an enhancement of

survival permit supported by a

conservation agreement for this purpose

is not appropriate as neighboring

property owners are not required to

monitor their property for the species.

Comment 24: One commenter stated

that the Service’s regulations should

strengthen the monitoring obligations

before and after permits are issued to

ensure compliance with the ESA. The

commenter further asserted that the

regulations should require the Service to

assess baseline conditions, including

both available habitat and estimated

population and distribution, and

independently monitor the condition of

the covered species and habitat

throughout the duration of the permit.

Response: For both conservation

plans and agreements, we require that

baseline conditions for the covered

species be determined before we

approve the plan or agreement and issue

the associated permit. In addition,

monitoring over the duration of the

conservation plan or agreement is

required to determine if the mitigation

or conservation measures have been

implemented and whether they are

effective (biological monitoring).

Depending on the species, the baseline

determination and monitoring may

include surveys for individuals to

estimate population and distribution on

the enrolled property or may only

include inventorying the habitat

conditions. Some species are difficult to

survey, and habitat may be used as a

surrogate if appropriate.

Comment 25: One commenter

recommended as a condition of permit

issuance that we expressly require all

enhancement of survival and incidental

take permittees to carry out adequate

monitoring commensurate with the

scope of their activities. The commenter

suggested that, in some cases, for small,

short-term habitat conservation plans

(e.g., covering a residential home on a

small property), this monitoring might

be minimal; however, in all cases the

regulations should require reporting

actual take of protected species.

Conversely, another commenter

recommended that we not impose

burdensome monitoring requirements as

conditions of enhancement of survival

permits, because such requirements are

costly, deter participation, and

ultimately do not increase species

conservation.

Response: Both permit types have

compliance and effectiveness

monitoring requirements. These

requirements are based on the covered

species and the goals and objectives of

the agreements and plans. The type and

amount of required monitoring is

commensurate with the activities

covered and does not go beyond what is

needed to determine whether: the plan

or agreement is being properly

implemented, the biological goals for

the covered species are being met, and

take authorization has not been

exceeded.

Comment 26: One commenter noted

that habitat conservation plan

requirements include a monitoring

component to measure the effectiveness

and progress of the conservation plan in

achieving its goals (to be codified at 50

CFR 17.22(b)(1)(viii)). The commenter

noted, however, that the Service has not

included language on the appropriate

scope of any compliance monitoring for

a habitat conservation plan. The

commenter asserted that the original

five-point policy states, ‘‘Monitoring

measures should be commensurate with

the scope and duration of the project

and the biological significance of its

effects.’’ The commenter stated that

including this language into regulations

will ensure that any monitoring

requirements are proportionate to the

project impacts. The commenter further

explained that this additional language

will ensure that monitoring programs

under habitat conservation plans will be

commensurate with the duration of the

habitat conservation plan and impacts

of the take.

Response: In the final rule, we added

‘‘The scope of the monitoring program

should be commensurate with the scope

and duration of the conservation

program and the project impacts.’’

Comment 27: Several commenters

stated that, for both quantification of

take and monitoring purposes, the

Service should continue to allow

applicants to rely on surrogates (a

similarly affected species of habitat or

ecological conditions) and make explicit

in the final rule that surrogate species

are acceptable when biologically

meaningful results are attainable by

such a method.

Response: We currently allow the use

of surrogates for monitoring purposes,

depending on the species, and will

continue to do so. While we are not

adding language to the regulations, we

discuss the appropriate use of surrogates

in our handbooks.

Comment 28: One commenter stated

that we should include more explicit

integration of climate change

considerations and recommended that

we require a climate strategy section

either within the goals and objectives or

its own standalone section within any

agreement or habitat conservation plan,

with explicit links to how the impacts

of climate change can be addressed

through adaptive management of the

agreement in question. The commenter

asserted that a standalone section would

allow for applicants to properly account

for and integrate climate resiliency in

their plans and agreements at the start.

Another commenter recommended that

we revise the proposed definition of

‘‘changed circumstances’’ to include

climate change within the examples

listed. Another commenter suggested

that the adaptive management program

in the conservation plan should

consider mitigation focused on

addressing climate impacts or other

stressors affecting listed species.

Response: While it is important to

consider the current and possible future

effects of climate change on a species,

we are not revising the regulations to

include a requirement for a standalone

climate change section in a plan or

agreement. We provide guidance on

incorporating climate change into plans

and agreements in our handbooks. We

note that the conservation strategy and

adaptive management program in the

conservation plan can include measures

to address the effects of climate change

to ensure the plan meets its biological

goals and objectives.

Comment 29: Two commenters stated

that the Service should have the

authority and discretion to consider and

provide mitigation and conservation

credit for prior and continuing

conservation measures. The commenters

asserted that the regulations should

clarify that the Service can consider and

provide mitigation and conservation

credit when a plan or agreement is

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amended to add a covered species, or

when a new plan or agreement

incorporates and builds on prior and

continuing conservation measures used

in existing plans and agreements for

conservation of a newly covered species

on the same covered land.

Response: For enhancement of

survival permits, when we evaluate the

baseline in the conservation agreement,

we take into consideration the current

condition of the species and its habitat,

either of which could be attributed to

prior or ongoing conservation measures.

We also review ongoing conservation

when selecting the conservation

measures that a property owner will

implement to determine if they will

need to adopt new conservation

measures or amend current measures to

achieve the net conservation benefit.

Likewise, if an enhancement of survival

permit is amended to include a new

species, we will determine if any

additional conservation measures are

needed to provide the net conservation

benefit for the new species.

For both enhancement of survival and

incidental take permits, if a permittee

seeks an amendment to add a new

species to the permit, we must establish

the environmental baseline for that

species at the time of the requested

amendment through our intra-Service

section 7 consultation. The prior and

ongoing actions, including conservation

gained through implementation of the

existing conservation plan or agreement,

would be accounted for in the baseline.

The baseline will also include the past

and present impacts of all Federal,

State, or other private actions in the

plan or agreement area. Therefore,

previous and on-going beneficial actions

are considered when making our

enhancement of survival and incidental

take permit issuance decisions.

Comment 30: Several commenters

were concerned about the definition of

‘‘covered species,’’ particularly the

meaning of ‘‘reasonable potential to be

considered for listing.’’ They asserted

that we did not provide any information

on what ‘‘reasonable potential’’ means

or how it will be determined, and

further asserted that we are creating an

alternative approach to a listing

determination that is outside the ESA.

Response: We revised the definition

of ‘‘covered species’’ in this final rule,

removing ‘‘reasonable potential to be

considered for listing’’ and replacing it

with the term ‘‘at-risk species,’’ which is

defined.

Comment 31: Some commenters

recommended that the Service provide

language to ensure State-managed non-

listed species are not included in the

definition of ‘‘covered species’’ because

that would subject State management of

these non-listed species to unacceptable

levels of uncertainty.

Response: We are not excluding State-

managed species from the definition of

‘‘covered species.’’ We work closely

with State agencies when developing

conservation agreements and plans and

will consider any concerns expressed by

States during that process. Furthermore,

it is the applicant’s decision whether to

include species not listed under the

ESA, rather than later seek an

amendment if the species is listed.

Comment 32: Several commenters

stated that, without a listing under the

ESA, direct and indirect regulation of

non-listed species is beyond the legal

authority of the Service. Several other

commenters supported our proposal to

include only non-listed species as

covered species in a plan or agreement.

They stated that this change may help

preclude the listing of at-risk species

and allow applicants to seek regulatory

certainty through an incidental take

permit well before a species may

become listed.

Response: We clarified in the

preamble that we have the authority to

issue incidental take and enhancement

of survival permits for non-listed

species. This process provides more

options for entities to voluntarily be

proactive and obtain regulatory

certainty, allowing them to continue

their covered activities without

interruption if a species becomes listed.

The ESA does not prohibit take of non-

listed species. Therefore, the take

authorization through an incidental take

or enhancement of survival permit will

not go into effect until that species is

listed.

Comment 33: Several commenters

stated that we failed to address the most

costly and burdensome requirements for

incidental take and enhancement of

survival permits. They asserted that the

conservation agreement requirements,

including (a) detailed information and

defined outcomes of the conservation

measures, (b) measurable biological

goals and objectives of the conservation

measures, (c) the baseline condition of

the property to be enrolled, (d) the net

conservation benefit resulting from the

conservation measures, (e) detailed

monitoring, and (f) the ability for the

Service to include other unknown

requirements for issuance, are too

onerous and costly.

Response: The requirements are to

ensure that we can make the necessary

findings for issuance of the permit and

approval of the associated agreement or

plan. The biological goals and objectives

must be measurable for us to determine

that the conservation measures or

mitigation are achieving their purpose.

The monitoring requirements are

necessary to determine if the

conservation measures or mitigation are

being properly implemented and are

achieving the intended result. The

purpose of a conservation agreement is

to provide a net conservation benefit to

the covered species, and we must have

the necessary information, such as the

baseline condition and monitoring

information, to be able to make that

determination.

Comment 34: Many commenters

requested that the final rule include

reasonable timeframes for application

processing stating that, otherwise, the

proposed streamlining of the revised

regulations will not be realized. Several

commenters suggested application

processing and permit decision

timeframes comparable to those

performed under section 7 of the ESA.

They further stated that, while the

section 10 durations do not necessarily

need to replicate those existing for

section 7 consultations, communicating

expected timeframes for review would

help to ‘‘generate and share products

quickly.’’ To realize the time and cost

savings benefits envisioned, one

commenter stated that implementation

of this rule must be simple and

straightforward for both non-Federal

applicants and Service staff alike.

Response: We will develop timelines

on a project-by-project basis based on

coordination between the applicant and

the Service early in the development of

the conservation plan or agreement. We

recognize an applicant’s need for

transparency and consistency with

respect to the Service’s decision-making

timelines and the importance of reliable

timelines in the overall development of

a conservation plan or agreement. We

reiterate our commitment to timely

review of applications and permit

decision making. We will consider

whether to incorporate general timeline

goals into our handbooks.

Comment 35: In addition to deadlines

for application processing and permit

decisions, many commenters requested

the adoption of deadlines for the various

stages of plan and agreement

negotiation, especially for the stage

related to the Service’s determination on

whether an application is complete.

Other commenters asserted that a lack of

deadlines causes the process to move

too slowly.

Response: We are committed to timely

review of applications and permit

decision making, given our resources.

We will continue to evaluate our

process for determining whether an

application is complete and will

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consider developing timelines in our

handbooks.

Comment 36: One commenter

suggested that we clarify permit

duration by adding a reference in the

final rulemaking that states, ‘‘including

time necessary to establish or restore

habitat conditions.’’ Another commenter

stated that the duration of permits

language does not provide applicants,

permittees, participants, and enrollees

regulatory certainty or transparency as

to the duration of a permit and stated

we should incorporate regulatory text

that clarifies ‘‘permit durations’’ to

provide regulatory certainty and

repropose the rule to provide the

opportunity for informed comments.

Response: We find it is unnecessary to

add the suggested language because the

duration of an agreement or plan

already incorporates the time needed to

achieve habitat establishment or

restoration as outlined in the agreement

or plan. Because each plan and

agreement is unique, we cannot apply a

generic timeframe for permits and their

associated agreement or plan in the

regulations. The duration of the permit

must be sufficient for the permittee to

fulfill the commitments of the plan or

agreement. For instance, the duration of

an enhancement of survival permit must

be long enough to achieve the net

conservation benefit, and the timeframe

for this to occur must be discussed and

mutually agreed upon during the

development of the conservation

agreement with the property owner.

Comment 37: Several commenters

recommended that we prepare guidance

documents and templates for the

respective permit applications and

conservation agreements and plans. The

commenters stated that these documents

should be developed in collaboration

with stakeholders, including

landowners, to ensure their usefulness

and applicability. Another commenter

suggested we create a template with

boilerplate language and an online

submission platform.

Response: In 2016, the National

Marine Fisheries Service and the U.S.

Fish and Wildlife Service jointly

finalized the Habitat Conservation

Planning and Incidental Take Permit

Processing Handbook. The draft was

published in the Federal Register, and

the final document included revisions

based on comments received from the

public. We will update the handbook

after finalizing these regulations. A draft

handbook for conservation agreements

will be developed and published in the

Federal Register for public comment.

While the primary purpose is to provide

guidance to Service staff, the handbooks

will also be publicly available for

stakeholder use. We will consider

templates when we develop the

handbooks. We have online submission

of applications through ePermits.

Comment 38: One commenter

asserted that we should provide

guidance that requires plans to have

measurable goals for species recovery in

terms of both habitat quantity and

quality and species population

numbers.

Response: For conservation plans, the

five-point policy (65 FR 35242, June 1,

2000) and 2016 Habitat Conservation

Planning Handbook include guidance

on developing appropriate biological

goals and objectives. We require

measurable biological goals and

objectives for conservation strategies, if

appropriate. We also require measurable

goals for conservation agreements,

which are based on the covered species.

However, it may not be possible to

specify measurable goals for both

habitat and species population numbers.

For example, with species where

monitoring individuals is difficult, we

would use habitat as a surrogate for

population numbers.

Comment 39: Several commenters

asserted that we were adding new

incidental take permit issuance criteria

that would explicitly allow the Service

to add terms and conditions beyond

what an applicant has in their habitat

conservation plan. The commenters

stated that the requirements for

additional measures usually arise at the

end of the permitting process when the

applicant has completed their

conservation plan, delaying the issuance

of the permit. The commenters further

stated that the Service should remove or

narrow this language and work with

permittees early in the habitat

conservation plan development process

where additional measures may be

appropriate.

Response: In general, the Service has

the authority to require permit

conditions not included in the

conservation plan. Section 10(a)(2)(B)(v)

of the ESA provides the authority to

include as permit conditions any other

measures that are necessary or

appropriate for purposes of the plan (see

section 10(a)(2)(A)(iv)). However, we

did not add new incidental take permit

issuance criteria through the proposed

regulatory revisions. Rather, we

incorporated the language from former

§§ 17.22(b)(2)(ii) and 17.32(b)(2)(ii) into

§§ 17.22(b)(2)(i) and 17.32 (b)(2)(i),

which may have caused confusion.

Additionally, while we have the

statutory authority to require additional

measures, we rarely exercise this

authority without the consent of the

applicant.

Comment 40: Several commenters

supported our inclusion of a definition

for ‘‘programmatic plan’’ or

‘‘agreement’’ in the regulations. Another

commenter stated the Service should

expand and further the programmatic

approach to section 10 permits and

conservation agreements and plans to

address and mitigate the significant time

and cost burdens for individual

landowners.

Response: We utilize programmatic

agreements where appropriate and

where we have an entity that is willing

to be the permit holder for the

agreement. Because this entity must

have the resources to implement the

permit and associated programmatic

plan or agreement, the number of

programmatic agreements and plans that

have been finalized has been limited.

Comment 41: One commenter stated

that, although we included a definition

for programmatic permitting, the

proposed rule did not provide

additional explanation as to the

procedures that would promote and

incentivize the use of programmatic

permits. Another commenter suggested

that we should propose regulatory text

explaining how programmatic habitat

conservation plans and incidental take

permit processes work.

Response: Given the complexity and

variability of programmatic plans and

agreements, it is not feasible to include

the suggested explanation in the

regulations. Rather, the appropriate

place to explain the development

process, advantages, and other details

regarding programmatic plans and

agreements is in our handbooks.

Comment 42: Several commenters

asserted that the regulations should

include a condition that the Service

must involve State wildlife agencies in

the development and approval of

conservation agreements and

conservation plans within their

respective States and concurrence on

species to be covered under those

agreements and plans. One commenter

requested that we consult with State

agencies when establishing baseline

conditions for enhancement of survival

permittees.

Response: While we decline to

include a requirement in the regulations

that we must involve State wildlife

agencies in the development and

approval of conservation agreements

and plans, we encourage applicants to

work with State wildlife agencies during

development of agreements and plans.

In addition, we often involve States in

developing conservation agreements,

particularly in discussions to determine

baseline conditions and monitoring

requirements to demonstrate that the

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agreement achieves a net conservation

benefit. Likewise, we closely coordinate

with State wildlife agencies during our

review of plans and agreements. Each of

our handbooks contains a section

dedicated to coordination with States,

underscoring the importance of this

collaboration.

Comment 43: Some commenters were

concerned that additional take

authorizations may be required by

States and possibly other regulatory

entities and suggested that we include a

statement in 50 CFR 17.2 indicating that

take authorization provided in part 17 is

for ESA-related take only. The

commenters also asserted that all

sections in 50 CFR 17.22 and 17.32 for

permits should have a paragraph on

permit conditions, that includes a

condition to obtain, if required, State

take authorization for the State-listed

species. The commenters also stated

that the Service should amend 50 CFR

17.22 and 17.32 to include a

requirement for permit applicants to

obtain any necessary State

authorizations before being federally

approved. In addition, several

commenters requested continued

involvement in such evaluations and

recommended that the Service consider

including language in the rule to

account for State involvement in the

species and habitat evaluation

processes.

Response: Because not all States have

a permitting process or require permits

for all species that could be covered in

an enhancement of survival or

incidental take permit (e.g., insects), we

decline to include this recommendation

in the final regulations. It is common

practice for the Service to recommend

coordination with State wildlife

agencies, Tribes, and stakeholders as

applicants are developing their plans or

agreements. The issuance of an

incidental take or enhancement of

survival permit does not absolve an

applicant from obtaining other required

State, Tribal, and local permits.

Comment 44: One commenter

suggested that we add the following

language to § 17.22(c)(6):

‘‘Implementation of the terms of a

conservation benefit agreement must be

consistent with applicable State, local,

or Tribal government laws and

regulations.’’

Response: We decline to add this

language to our regulations, which is

unnecessary given that applicants must

certify on the application that they are

operating consistent with other Federal,

State, and Tribal laws. However, we

added ‘‘Tribal’’ to the definition of

‘‘property owner,’’ as follows:

‘‘sufficient to carry out the proposed

activities, subject to applicable State,

Tribal, and Federal laws and

regulations.’’

Comment 45: Several commenters

assert that streamlining the process for

developing conservation agreements

and plans, expanding outreach capacity

both within and outside of the Service

to work with landowners, and providing

dedicated support for the long-term

implementation of these agreements by

nongovernmental organizations and

other third-parties are among the most

significant actions that the Service

could take to expand the reach of these

tools and advance proactive

conservation and species recovery on

private land.

Response: The goal of our regulation

changes is to streamline and provide

more clarity on permits and their

associated plans and agreements, which

should increase conservation on non-

Federal lands. Outreach to

communities, property owners, local

and State government, other Federal

agencies, and Tribes is part of our work

to promote and increase the use of these

tools.

Comment 46: Several commenters

stated that, while the final rule may

help streamline procedures and

encourage consistency in review and

approval of permit applications, review

and approvals can be delayed regardless

of streamlining if there are insufficient

personnel or funding to assist applicants

in preparation and review of

applications. The commenters did not

foresee a major reduction in workload

for the Service as a result of the

proposed rule changes. To ensure

successful implementation of a final

rule, they requested that we allocate

dedicated funds to facilitate and support

voluntary conservation planning by

supporting at least one full-time

equivalent habitat conservation

planning staff person across each region

to support applicants and facilitate

review of section 10 permit

applications.

Response: We recognize the

importance of having staff dedicated to

support the work on these permits and

associated plans and agreements, and

we have staff in each of our regional

offices whose primary job is to work on

enhancement of survival and incidental

take permit applications. In addition,

we anticipate that the changes to the

regulations will result in more

efficiencies and shorten the time it takes

for our staff to review and finalize

permits, plans, and agreements.

Comment 47: Several commenters

asserted that we need more staff to

timely process incidental take and

enhancement of survival permit

applications or suggested, alternatively,

that we need to be more efficient in

processing permit applications,

including empowering field offices to

streamline planning and permitting.

Response: Currently we delegate

enhancement of survival and incidental

take permits that qualify for categorical

exclusion under NEPA (e.g., low-effect)

to our field offices, thus shortening the

review process for those plans and

agreements. We expect the revisions to

these regulations to make the process

more efficient by clarifying what is

needed for a complete application. We

will evaluate additional ways to

streamline our processes and consider

incorporating those processes in our

handbooks.

Comment 48: A commenter asserted

that the proposed rule only codifies

existing guidance—specifically, the

2016 Habitat Conservation Planning

Handbook, five-point policy, SHA

policy, and CCAA policy—and thus

does not appear to substantively change

the existing permit application process,

which is currently lengthy and

burdensome. The commenter states

support for the Service codifying

guidance and standardizing practices

across applications and regions, as

doing so will help resolve ambiguities

and challenges arising from different

interpretation of Service regulations.

However, the commenter asserted that

such codification, without further

amendments, will not change the

amount of time and resources needed to

obtain a section 10 permit and will not

significantly ameliorate the extent to

which this investment of time and

resources discourages members of the

regulated community from applying for

such permits.

Response: The purpose of the

regulatory revisions to §§ 17.22 and

17.32 is to clarify and codify long-held

policy and guidance into the

regulations. We acknowledge that these

revisions do not fundamentally change

the section 10 permit application

processes, but we conclude they will

improve plan and agreement

negotiations, expediting the process and

addressing, at least in part, the

commenter’s concerns about the

investment of time and resources by

applicants.

Comment 49: Several commenters

indicated that the section 10 permitting

is a burdensome process that involves

significant time and costs to draft,

negotiate, and receive approval for

either conservation agreements or

habitat conservation plans. They

asserted that, although we stated this

proposal aims to clarify and simplify the

process, we did not identify or provide

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mechanisms and support to reduce the

administrative burdens and costs that

often serve as barriers to individual

landowners participating in

conservation agreements or plans.

Response: We conclude that the

changes and the clarifications provided

in this final rule will improve the

process for developing plans and

agreements. We received several

recommendations to further improve the

process that we are considering and may

incorporate into our handbooks.

Comments That Apply to Enhancement

of Survival Permits Supported by

Conservation Agreements

Comment 50: One commenter

suggested revising the definition of

‘‘baseline’’ by adding the following

language at the end of the definition:

‘‘The Service shall determine baseline

condition after consulting with the

landowner, using the best available

science and ecological modeling

practices.’’

Response: Because we work closely

with landowners when developing

conservation agreements and use the

best available science to select the most

appropriate methods to determine the

baseline of a property, including the

suggested language in the regulations is

unnecessary.

Comment 51: One commenter stated

that we should clarify that take from a

potential return to baseline will factor

into our issuance determinations and

that we will consider impacts to the

overall population of the covered

species in our analysis. Another

commenter sought clarification to the

issuance criteria at § 17.22(c)(2)(ii) and

suggested adding the following

language: ‘‘When making a decision to

approve a conservation benefit

agreement, the Service shall include

sufficient conditions to ensure that the

overall population of the covered

species will not be reduced if the land

is ultimately returned to baseline

conditions.’’ The commenter asserted

that this modification makes it clear that

we will fully account for take from a

potential return to baseline when we

issue enhancement of survival permits,

thereby reducing potential confusion for

all parties.

Response: When we issue an

enhancement of survival permit under a

conservation agreement, we conduct an

intra-service section 7 consultation, and

part of that consultation considers the

impacts of the permitted take to the

overall population of the species

including take from a potential return to

baseline.

Comment 52: One commenter

requested that we repropose the rule to

include information on how ‘‘baseline

conditions’’ should be determined

under our new definition for ‘‘baseline’’

and to provide a cost impact analysis for

this required determination.

Response: Because each species and

area covered by a conservation

agreement is unique, we cannot describe

how baseline will be determined for

each species. We use the best available

scientific information to identify the

appropriate method for determining

baseline for a species on a property. For

some species it may be possible to

conduct surveys to count individuals,

but for other species we may use habitat

conditions as the best method to

describe baseline conditions. In

addition, we cannot provide a cost

estimate for determining baseline

because that determination will vary by

species and size and location of the

agreement area.

Comment 53: Two commenters

requested that we revise the definition

of ‘‘baseline’’ by replacing ‘‘could’’ with

‘‘currently sustains’’ to more accurately

reflect existing conditions of the

enrolled land. One commenter asserted

that in the definition we should focus

on species status and enrolled land

conditions as they presently exist. The

commenter further asserted that, in the

definition of ‘‘baseline,’’ the addition of

the word ‘‘could’’ creates uncertainty

and potential disagreement on the

description of the baseline, the

determination of net conservation

benefit above baseline, and the lawful

return to baseline. The commenter

stated that baseline is an empirical

description of the starting condition of

habitat and species range and size, and

that forecasting, estimating, or debating

over habitat or population

characteristics is not needed to

determine baseline. Another commenter

stated that the baseline condition of a

landowner’s property should be

determined using actual conditions on

the ground at the time of the agreement

rather than hypothetical scenarios.

Response: To clarify that baseline

condition is the starting condition of the

property to be enrolled in a

conservation agreement, we revised the

definition of ‘‘baseline’’ by changing

‘‘could’’ to ‘‘currently sustains.’’

Comment 54: Another commenter

recommended that we add ‘‘across’’ to

the definition of ‘‘baseline’’ to maximize

participation and processing efficiency

as shown here: ‘‘Baseline condition

means population estimates and

distribution or habitat characteristics

across the enrolled land.’’ The

commenter asserted that the regulations

should focus on habitat conditions

across the entirety of the enrolled land

rather than on specific stands or tracts.

Response: The baseline for a property

to be enrolled in a conservation

agreement includes the species

population estimates or habitat

evaluation for the entire property. To

ensure that this concept is clear, we

added the word ‘‘across’’ to the

definition of ‘‘baseline.’’

Comment 55: One commenter stated

that the baseline condition should be

based on the time when the permit

application is deemed technically

complete rather than at the time when

the Service executes the document.

Response: The baseline condition is

based on when surveys or habitat

evaluations are completed and agreed

upon by the property owner. Baseline is

part of the draft agreement available for

public comment when we announce

receipt of the associated permit

application in the Federal Register;

therefore, the baseline should not

change after public comments are

received. In addition, the baseline is

unlikely to change between that time

and when we issue the permit and sign

the agreement, because the Service

rarely encounters substantial delays in

processing enhancement of survival

permits after publishing the notice of

availability in the Federal Register.

Comment 56: One commenter

asserted that the term ‘‘ongoing

activities’’ in the definition of ‘‘net

conservation benefit’’ can be misleading

and recommended that we replace it

with ‘‘property management actions,’’

defined as actions that are conducted as

part of property operations,

maintenance, modernization, or as

otherwise authorized by Service

consultation. The commenter also

suggested the inclusion of ‘‘otherwise

authorized by Service consultation’’ as a

means to allow other activities that are

unforeseen at the time the permit is

approved but aligned with the intent of

actions included in the ‘‘property

management actions’’ or similar

definition.

Response: We used the term ‘‘ongoing

activities’’ to limit the activities that

would be covered by an enhancement of

survival permit. ‘‘Property management

actions’’ would be too broad because, as

proposed by the commenter, new

activities under the term

‘‘modernization’’ could be included that

would not be appropriate to be covered

by the permit, such as inclusion of a

new pipeline. To issue an enhancement

of survival permit associated with a

conservation agreement, the Service

must find that the covered activities in

the conservation agreement provide a

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net conservation benefit to the covered

species.

Comment 57: One commenter

recommended that we modify the

definition of ‘‘baseline condition’’ and

the description in the preamble to

include scenarios where habitat does

not currently exist but would be

established under the conditions of a

conservation agreement.

Response: We find it unnecessary to

revise the definition of ‘‘baseline

condition’’ to include such scenarios

because that term refers to the

conditions on the property at the time

the conservation agreement is

developed, not a desired future state. A

property need not have habitat for the

covered species at the time the

agreement is developed. The agreement

would include conservation measures

aimed at creating species habitat over

the duration of the agreement.

Comment 58: One commenter

asserted that the definition of ‘‘baseline

condition’’ or guidance on its

application should ensure that an

applicant may establish baseline

conditions using a landscape or macro

framework rather than a habitat element

or micro perspective.

Response: Baseline condition is

established for the entire property

covered by a conservation agreement.

Using a landscape approach may be

appropriate for some properties, but that

approach would be determined on a

case-by-case basis.

Comment 59: One commenter

encouraged us to clarify the role of an

applicant’s choice to return a property

to baseline condition. The commenter

requested that State agencies be

thoroughly consulted, particularly for

non-listed species in which States retain

a primary jurisdictional interest, when

determining the processes by which an

assessment of baseline conditions will

be made, conditions monitored over the

duration of a permit and agreement and

beneficial conservation measures

preserved after the end of the permit

period and a return to baseline.

Response: The regulations allow the

applicant to make this choice about

returning a property to baseline. States

are important partners in species

conservation, and we will involve State

wildlife agencies when we develop

conservation agreements, including

discussing how we will determine the

baseline condition of a property for the

covered species.

Comment 60: One commenter

suggested adding a sentence to

§ 17.22(c)(8), ‘‘Discontinuance of permit

activity,’’ to clarify that a permittee

cannot return the property to baseline

until the permit has expired. The

commenter suggested adding the

sentence: ‘‘A permittee may not return

their property to baseline condition

until after the agreed upon permit

duration has expired.’’

Response: A property owner may

return the property to baseline

conditions at the end of the agreement

and prior to permit expiration, if this

option is identified in the conservation

agreement prior to issuance of the

permit. Alternatively, a property owner

may choose no longer to participate in

the conservation agreement and can

return the property to baseline

condition just prior to giving up their

permit. For any listed species covered

by the agreement and permit, the permit

must still be in place for the property

owner to return to baseline. We

determine that it is unnecessary to

include the suggested language in the

regulations and will provide additional

guidance on this concept in our

handbook.

Comment 61: Several commenters

stated that the newly proposed

definition of ‘‘net conservation benefit’’

omits an important pathway for

providing net conservation benefits

through maintaining existing habitat

conditions and continuing management

that is beneficial to species. They

asserted that we should revise the

definition of ‘‘net conservation benefit’’

and related application criteria to

provide for maintenance as well as

improvement in baseline conditions.

They further stated that we should

acknowledge and incorporate the

language in existing CCAA policy that

includes circumstances where the

species and habitat are already

adequately managed when assessing

whether the condition of the covered

species or the amount or quality of its

habitat is reasonably expected to be

greater at the end of the agreement

period than at the beginning.

Response: We revised the definition

of net conservation benefit to make it

clear that, in circumstances where a

property already contains suitable

habitat for the species and the

conservation measures include a

commitment by the property owner to

maintain and manage that habitat, the

property would meet the net

conservation benefit requirement and

could qualify for inclusion in a

conservation agreement.

Comment 62: One commenter

asserted that projects with long-term

climate benefits should be able to meet

the definition of net conservation

benefit. They also stated that the

definition of net conservation benefit

should be drafted in a way that

acknowledges that the climate change

benefits of a project should be

considered in the assessment and

supports creative mitigation solutions to

climate change.

Response: The duration of an

agreement must be long enough to

provide a net conservation benefit to the

covered species. While some projects

may provide long-term climate benefits,

the projects may not provide these

benefits during the timeframe of a

conservation agreement. However, we

could evaluate whether these types of

projects provide a specific net

conservation benefit to the species on a

case-by-case basis.

Comment 63: One commenter

asserted that the proposed definition of

‘‘net conservation benefit’’ fails to

emphasize the need for improved

survival of the covered species. The

commenter asserted that, by focusing on

improved habitat conditions, we give

away assurances without getting

effective conservation. Another

commenter stated that the definition of

net conservation benefit is not adequate

and that we should clarify that the

specific activity authorized must benefit

the species. The commenter further

stated that the definition should clarify

that net conservation benefit must be

sufficient to contribute to the recovery

of covered species in the wild and

increase the long-term survivability of

such species.

Response: The definition of ‘‘net

conservation benefit’’ provides for an

improvement of the covered species,

either through a direct benefit to

individuals (e.g., reintroduction) or by

creating or enhancing habitat.

Conservation agreements provide for

effective conservation by implementing

specific measures aimed to improve the

status of the species; previously issued

CCAAs have been shown to improve

species status such that listing is not

warranted.

Comment 64: Another commenter

asserted that, while the proposed

definition of ‘‘net conservation benefit’’

refers to the species’ status, the

proposed regulation considers only each

covered species’ existing baseline

condition on the enrolled land. The

commenter stated that this approach is

too restrictive and that the regulations

should also anticipate and encourage

improvements to species’ existing

baseline conditions on areas impacted

by covered activities, including through

spillover of recovered populations onto

adjacent or other lands.

Response: The net conservation

benefit determination is made for the

property that is enrolled in a

conservation agreement based on the

conservation measures that the property

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owner agrees to implement and taking

into consideration the ongoing activities

for which we authorize take through the

permit. We do not consider adjacent

land or other land that is beyond the

area covered by the agreement.

Comment 65: One commenter

recommended that we remove the

language ‘‘the amount or quality of its

habitat’’ because, in many cases,

benefits to habitat will reasonably be

expected to improve the status of the

species and, where they do not, there

would be no ‘‘net conservation benefit.’’

Response: While we agree that

benefits to habitat will result in

improvements to the status of the

species, we are retaining this language

to make it clear that the net

conservation benefit can be achieved

through habitat creation or

improvement.

Comment 66: One commenter

suggested that we recommend specific

conservation metrics when defining net

conservation benefit and that these

metrics might include changes in

habitat area, habitat connectivity, and

expected change in abundance, for

example.

Response: While conservation

agreements will include metrics to

monitor and determine effectiveness of

the conservation measures such as those

suggested by the commenter, we did not

specifically list these in the regulations.

However, we will discuss metrics

related to net conservation benefit

further in our handbook.

Comment 67: One commenter

suggested that, although a quantitative

target seems unworkable given the

variability of species and agreements at

issue, we should include a qualitative

target such as a meaningful or

substantial improvement, which could

be helpful while still allowing

reasonable flexibility.

Response: We are not including the

suggested language because it is

subjective and could be open to

interpretation. However, we will

include more explanation on this issue

in our handbook.

Comment 68: One commenter

asserted that we could further clarify the

definition of ‘‘net conservation benefit’’

by adding language specifically

confirming that the improvement in

condition must be expected to result

from the specific conservation measures

implemented. The commenter stated

that, although it is suggested by the

proposed language, further clarification

is needed to tie the improvement in

condition to the specific conservation

measures. The commenter asserted that

this tie could be accomplished by

inserting the phrase ‘‘because of the

implementation of the specific

conservation measures’’ immediately

after ‘‘that’’ the second time it appears,

so that the language would read ‘‘that,

because of the implementation of the

specific conservation measures, the

condition of the covered species . . . .’’

Response: We have revised the

definition of ‘‘net conservation benefit’’

by adding the word ‘‘conservation’’ to

make it clearer that the improvements to

the species’ status or habitat on the

enrolled property is a result of

implementing the agreed-to

conservation measures.

Comment 69: Another commenter

suggested a revision to the definition of

‘‘net conservation benefit’’ to require a

showing of improvement in the

condition of species already present on

the relevant property, unless the nature

of, or knowledge about, the species

makes such a showing unreasonably

difficult. They suggested the following

language: ‘‘. . . or, as appropriate for

each covered species not resident on the

property or each resident species for

which species status is not determinable

with a reasonable level of effort, the

amount or quality of its habitat.’’

Response: We decline to add the

suggested language because it is not

necessary as improvement of the species

is already incorporated into the

definition and is a requirement of a

conservation agreement either by

directly improving the population of the

species or by improving the habitat of

the species on the property. However,

further explanation on how to

determine baseline, and thus a net

conservation benefit, will be included in

our handbook.

Comment 70: One commenter

asserted that we need to clarify how

adverse impacts to covered species from

ongoing land or water use activities and

conservation measures will be

determined. They stated that this

clarification is especially important if

we intend to calculate adverse impacts

and then apply them as an offset to the

benefits of a conservation agreement.

Response: The adverse impacts to the

covered species from implementation of

the conservation measures or ongoing

land or water use activities would be

based on the biology of the specific

species. Monitoring can help to inform

this impact using species surveys or

habitat evaluation. Additionally, while

implementation of the conservation

measures could have some short-term

impacts, these measures will ultimately

benefit the species.

Comment 71: One commenter stated

that we should indicate that net

conservation benefits are determined

based on all voluntary actions by the

applicant that benefit the species,

whether new or continued, and not just

new actions to be taken under the

application.

Response: When we determine

whether a conservation agreement meets

the net conservation benefit

requirement, we look at all the

beneficial actions that the property

owner is taking on their property,

whether they are continuing actions or

implementing new measures. We

decline to revise the regulations to

include this clarification, but we will

discuss this issue further in our

handbook.

Comment 72: One commenter

proposed that the neighbor requirement

for applicants under § 17.22 (c)(1)(vii))

read as follows: ‘‘A description of the

enrollment process to provide

neighboring property owners incidental

take coverage under paragraph (c)(5)(ii)

of this section with an agreement to

supply proof that there has been a

reasonable effort to give neighbors

notice of the application, if applicable,

or any other measures developed to

protect the interests of neighboring

property owners.’’ Another commenter

asserted that the proposal should be

revised to guarantee this protection to

neighboring landowners. The

commenter stated that it could be done

by changing ‘‘may’’ to ‘‘shall’’ and

minimizing the burdens imposed on

neighboring landowners to obtain this

protection.

Response: We decline to include the

suggested addition to the neighboring

property provisions because

neighboring property owner provisions

are not a requirement of a conservation

agreement. The neighboring property

provision may be unnecessary in

situations where the species are not very

mobile or if suitable habitat is not

located on the property adjacent to the

enrolled property in the conservation

agreement. Requiring that every

agreement include neighboring property

owner provisions will create

unnecessary work in some cases.

Comment 73: One commenter

suggested that we define neighboring

property owners based on the biology of

the species that the permit will cover

and not just in regard to immediately

adjacent neighboring property owners or

a neighboring property owner’s

proximity to the permitholder. The

comment asserted that a species-specific

definition will ensure that all

‘‘neighbors’’ within a species’ range will

be covered.

Response: We find that it is not

necessary to adopt this suggestion

because, when we include neighboring

property owner provisions in an

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enhancement of survival permit, we

already consider the biology of the

species to help determine which

properties would be appropriate to

include. For instance, it may not be

appropriate to include all neighboring

property owners within the species’

range because the species’ dispersal

capabilities may be limited and suitable

habitat may not exist on all proximate

properties.

Comment 74: One commenter

supported the proposed changes that

clarified considerations for extending

incidental take coverage to neighboring

property owners. The commenter noted

that the proposed rule suggests

enrollment procedures for adjacent

landowners should be contained in the

agreement and stated that the method of

providing incidental take coverage to

neighboring lands as written is flexible

and intended to be tailored to the

specific agreements and needs of

adjacent property owners. Another

commenter opposed the provision

allowing the Service to authorize

incidental take coverage for owners of

properties adjacent to properties

covered by the conservation agreement.

Response: Including neighboring

property owner provisions is an

important concept that can help to

encourage more property owners to

participate in a conservation agreement.

Knowing that their neighbors can be

covered for take that might occur as a

result of the species expanding beyond

the boundaries of the property enrolled

in an agreement can be an incentive for

enrollment, thus increasing the

conservation for listed and at-risk

species under the ESA.

Comment 75: One commenter stated

that the Service should revise the phrase

in the definition of ‘‘property owner’’

from ‘‘owners of water or other natural

resources’’ to ‘‘owners of rights to water

or other natural resources.’’

Response: We agree that water and

other natural resources are not owned

and have revised the regulation to

‘‘owners of rights to water or other

natural resources.’’

Comment 76: Several commenters

noted that we removed ‘‘a person with

a fee simple, leasehold, or’’ from the

definition of ‘‘property owner’’ and that

we did not explain the purpose or need

for this revision, or why these entities

are specifically being excluded as

property owners. The commenters

recommended that we specifically

include in the definition ‘‘permit and

lease holders of the enrolled property’’

as these entities may be the property

managers of such estates.

Response: We removed the specific

references to a person with a ‘‘fee

simple’’ or ‘‘leasehold’’ property interest

to simplify the definition of ‘‘property

owner.’’ The revised definition is

sufficiently broad to include persons

with fee simple or leasehold interests.

The threshold requirement to qualify as

a property owner is the legal ability to

implement the agreement.

Comment 77: One commenter stated

that we used the term ‘‘enrolled land’’

multiple times in the proposed rule, but

we have approved CCAAs in the past

that include other property interests,

including water rights. The commenter

suggested that we clarify that those

other property interests are covered by

the final regulations and requested that

we consistently refer to ‘‘property’’

throughout the rule, except where a

narrower scope is specifically intended.

Response: We have changed several

references from ‘‘enrolled land’’ to

‘‘enrolled property’’ as appropriate in

§ 17.22 in paragraphs (c)(1)(iv), (v), and

(viii), (c)(2)(ii), and (c)(4) and in § 17.32

in paragraphs (c)(1)(iv), (v), (viii),

(c)(2)(ii), and (c)(4).

Comment 78: Many commenters

supported the proposal to combine

CCAAs and SHAs into one agreement

type. Commenters stated that this

change will simplify the permit process

and will also provide applicants that

had previously applied for a CCAA with

the option of returning a property to

baseline conditions, which under

current regulations is an option

available only to SHA applicants. Other

commenters opposed combining CCAAs

and SHAs, stating that CCAAs and

SHAs should have different standards

for non-listed and listed species. They

asserted that the regulations as proposed

will set a higher regulatory hurdle for

conservation agreements for candidate

species (meant to avoid a listing) by

formalizing requirements that are as

stringent as post-listing agreements

(designed to aid in the recovery of a

listed species). The commenters stated

that combining the two agreements will

make it more onerous, burdensome, and

costly for applicants, permittees,

participants, and enrollees to overcome

the higher regulatory hurdles (a

recovery standard) to conserve

candidate species.

Response: We analyze the same

factors to decide whether to list a

species as we do to decide whether to

downlist or delist; we do not have

different standards for these

determinations. Agreements for non-

listed species have the same

requirements as for listed species: They

must provide a net conservation benefit

by addressing the threats to the species

on the enrolled property or otherwise

improving the status of the species.

Comment 79: One commenter wanted

to know if all programmatic agreements

established prior to a listing

automatically continue post-listing and,

if so, whether property owners must

enroll by a deadline, or whether

enrollment continues indefinitely. The

commenter also asserted that if

enrollments continued post-listing,

landowners would not have incentives

to enroll prior to listing because they

could wait until post-listing and still get

the same assurances against further

restrictions on land or resource use.

Response: Programmatic agreements

that are established prior to a covered

species becoming ESA-listed can

continue to allow enrollment of new

property owners under the agreement

post-listing. A property owner may want

to enroll prior to a species listing so that

ongoing covered activities on the

property can continue seamlessly

should the species be listed. If a

property owner waits until a species is

listed, enrollment will be delayed until

the application is completed.

Comment 80: One commenter stated

that conservation agreements, as

proposed, have the potential to reduce

timeframes and resources needed to

develop and implement the agreements.

However, the commenter suggested that

additional details regarding how

agreements will be executed pre- and

post-listing are needed. Further, the

commenter asked for clarification about

whether a conference opinion that

accompanies an enhancement of

survival permit supported by a

conservation agreement prior to listing

would be converted to a biological

opinion upon listing.

Response: Conservation agreements

that are developed prior to a species

being listed will continue seamlessly, as

outlined in the agreement, if the species

is listed. For non-listed species covered

by an agreement and permit, a

conference opinion would be completed

because permit issuance is a Federal

action requiring a section 7

consultation. If the species was

subsequently listed under the ESA, we

would convert the conference opinion

into a biological opinion.

Comment 81: One commenter stated

that the proposed definition of ‘‘goals

and objectives’’ is insufficient to ensure

that the goals can be met and measured.

Response: Each agreement is unique;

therefore, we cannot specify what

specific goals and objectives need to be

included. However, in general, the goals

and objectives need to be measurable

through monitoring and must help

determine if the net conservation benefit

is being achieved. Additional guidance

will be included in the handbook.

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Comment 82: Two commenters

encouraged the Service to clarify how it

will handle SHAs or CCAAs that are

under development at the time this

regulation is finalized. They asserted

that, given the time and resources

necessary to prepare these applications,

SHAs and CCAAs that are in the final

stages of the process should not have to

restart under a new regulatory

framework.

Response: We provided notice to

those entities that were working on a

CCAA or SHA prior to the finalization

of these regulations. The CCAAs or

SHAs that have already been noticed in

the Federal Register and are in the final

stages of permitting do not have to be

revised provided they meet issuance

criteria.

Comment 83: One commenter sought

clarity on whether this regulation alters

our policy on candidate conservation

agreements (CCAs), which do not

include an enhancement of survival

permit or provide assurances.

Response: The revision to our section

10 regulations does not alter our policy

on CCAs. While we do not issue permits

in conjunction with CCAs, they remain

an important conservation tool for non-

listed species.

Comments That Apply to Incidental

Take Permits Supported by a

Conservation Plan

Comment 84: Many commenters

expressed their support for codifying in

the regulations that incidental take

permits may be issued for non-listed

species without listed species included

on the permits. The commenters stated

that the provision will provide

additional flexibility to further the

statutory purpose of the ESA by

encouraging voluntary conservation of

species before they are listed.

Conversely, some commenters

expressed concern that a provision to

include only non-listed species in

incidental take permits oversteps the

Service’s authority by blurring the line

between State and Federal authority.

Some commenters suggested that we

require concurrence or approval from

States before issuing such incidental

take permits.

Response: Allowing for incidental

take permits to be issued for non-listed

species does not diminish or replace the

State’s authorities. Further, we will

continue to encourage applicants to

include State, Tribal, and other Federal

partners in the development and

implementation of conservation plans to

ensure consistency with other

authorities.

Comment 85: Several commenters

were confused by the proposed language

included in § 17.22(b)(1)(v)(A) where it

states that the habitat conservation plan

must explain the conservation measures

that will be taken to minimize and

mitigate the impacts of the incidental

take for all covered species

commensurate with the taking. They

interpreted this language to mean that

the requirement is to fully offset impacts

to covered species, contrary to the ESA

issuance criteria because of guidance

provided in the 2016 Habitat

Conservation Planning Handbook.

Response: The text at § 17.22(b)(1)

includes a list of information that must

be included in a conservation plan,

consistent with the requirements of

section 10(a)(2)(A) of the ESA. The

commenters conflated the requirements

in section 10(a)(2)(A) with the statutory

issuance criteria in section 10(a)(2)(B).

For a conservation plan, the revised

regulations clarify that the applicant

must describe the measures that the

applicant will take to minimize and

mitigate the impact of the taking

commensurate with the taking. We use

the term commensurate to mean in

proportion to. The example the

commenters referenced from the

handbook is taken out of context.

However, we will reevaluate the

example used during the upcoming

handbook update to reduce confusion.

Comment 86: Several commenters

asserted that the rule appears to

inappropriately shift conservation plan

permitting development to the Service

when ESA section 10 permits are

entirely voluntary and led by the

applicant.

Response: The decision to apply for a

section 10 permit is voluntary. Once the

decision is made to seek a permit, the

applicant is required to comply with the

statute and regulations and develop the

plan or agreement consistent with

policy and guidance. For incidental take

permits, that includes participating in

negotiations with the Service to ensure

the conservation plan meets the

statutory requirements of ESA section

10(a)(2)(A)(i)–(iv). The statutory text of

the ESA requires a conservation plan to

include ‘‘such other measures that the

Secretary may require as being

necessary or appropriate for purposes of

the plan.’’ This language demonstrates

Congress’ intent to provide the Service

with the authority to require that

applicants include appropriate

measures in a conservation plan and

reflects an expectation that we will

work with applicants on plan

development.

Comment 87: Several commenters

asserted that the application

completeness standard is equivalent to

determining whether the application

and its supporting plan meet the

statutory issuance criteria. They stated

that this front-loading of the process

gives the Service undue leverage in

negotiating the terms and conditions of

an incidental take permit and violates

existing policy that the incidental take

permit application process is applicant-

driven. Other commenters suggested

that, while the language does attempt to

clarify when applications are complete,

it gives the Service subjective authority

to determine when an application is

complete resulting in perpetual

indecision for applicants.

Response: The application process is

considered applicant-driven because it

is the applicant’s decision whether to

seek a permit. Once an applicant

decides to seek a permit and applies for

an incidental take permit, developing a

conservation plan is a prerequisite to

issuance of the permit and therefore the

conservation plan is an application

requirement. Through the conservation

plan, the applicant demonstrates to the

Service how the applicant intends to

meet the incidental take permit issuance

criteria. For the Service to determine

that the incidental take permit

application is complete, the supporting

conservation plan must include all the

required information as set forth in ESA

section 10(a)(2)(A) and the regulations

in §§ 17.22(b)(1) and 17.32(b)(1) and be

consistent with Service policy and

guidance. The level of detail in the

conservation plan must be sufficient for

the Service to conduct our required

analyses (e.g., NEPA and ESA section 7)

and to determine whether the

application meets permit issuance

criteria set forth in ESA section

10(a)(2)(B). The Service will not deem

an application complete or begin

processing the application until these

requirements are met. The Service’s

determination that the application is

complete, however, does not guarantee

that we will determine that the

application meets the incidental take

permit issuance criteria. Additional

guidance on this subject will be

included in the update to the handbook.

Comment 88: Many commenters

suggested that we should address the

inordinate length of time required to

process ESA section 10 permits,

asserting that the length of time for the

Service to deem an application

complete is often one of the key

complaints raised by applicants. The

commenters further asserted that we do

not clearly specify the requirements for

a complete application. The

commenters stated that, in practice, an

application is not complete until the

Service deems it so, which typically

involves lengthy negotiations between

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the Service and the applicant,

particularly with respect to habitat

conservation plans. They further stated

that the requirements for a complete

application, as provided in the current

and proposed regulations, are not

predictable. The commenters stated that

the requirements for a complete

application should be clearly set forth in

the regulations and transparent to

applicants.

Response: An incidental take permit

application will not be deemed

complete until we have determined that

the applicant’s supporting conservation

plan includes all the required

information as set forth in ESA section

10(a)(2)(A) and the regulations in

§§ 17.22(b)(1) and 17.32(b)(1) and is

consistent with current policy and

guidance. In addition, the conservation

plan must include a level of detail

sufficient for us to conduct our required

analyses (e.g., NEPA and ESA section 7)

and to determine whether the

application meets permit issuance

criteria as set forth in section

10(a)(2)(B). In addition to providing

guidance in an update to the handbook,

we will also consider developing a

policy to outline a more formal process

to determine whether an application is

complete, along with a potential

timeline, to provide more predictability.

Comment 89: Several commenters

stated that the statute does not contain

a reference to processing complete

applications and does not give the

Service the ability to deem applications

incomplete and withhold processing

them. Others asserted that the Service

should instead process the application

as is and formally deny the permit.

Response: An incidental take permit

application and the related conservation

plan must include the necessary

information required by the statute and

regulations. Only after that information

is provided can we evaluate the

application and associated conservation

plan. The conservation plan must

contain sufficient detail for us to

determine whether the application

meets the issuance criteria set forth in

ESA section 10(a)(2)(B). Processing an

incomplete application is inefficient

and ineffective.

Comment 90: Several commenters

recommended that we could incentivize

participation in the incidental take

permit program by addressing

disincentives related to the length and

expense of the process. The commenters

asserted that we could adopt

mechanisms to resolve key areas of

dispute that frequently arise during

permit negotiations and that can become

very protracted and lead to significant

applicant frustration. Some commenters

suggested adopting dispute resolution

processes similar to other Federal

agencies or developing an internal

elevation process through the chain-of-

command within the Service to resolve

disputes.

Response: We will explore options

and consider developing a policy to

incorporate dispute resolution into the

conservation planning process.

Comment 91: Several commenters

stated that we do not have the authority

to add permit terms not agreed to by an

incidental take permit applicant.

Response: Both the statute in section

10(a)(2)(A)(iv) and 10(a)(2)(B)(v) and the

regulations in §§ 17.22(b)(1)(xi) and

17.32(b)(1)(xi) provide the Service with

the authority to add terms and

conditions, but this authority is rarely

exercised without the consent of the

applicant.

Comment 92: One commenter raised

concerns that we changed the

requirements for funding assurance to

accounting of funding to be consistent

with the handbook. The commenter also

asserted that guidance provided in

chapter 9 of the handbook includes

impractical financial analysis

requirements that were added without

the opportunity for public comment.

Response: Based on lessons learned,

we made this change in the regulations

to clarify that funding assurances

described in the conservation plan must

include a detailed accounting of how

the applicant intends to fund plan

implementation over the permit term.

Some applicants mistakenly believed

that providing an assurance, which is

simply a promise of funding, was

sufficient. The guidance in chapter 9 of

the handbook provides many examples

and possible options to meet the

funding assurance requirements, and

the public was provided an opportunity

to comment. The draft Habitat

Conservation Planning Handbook was

published in the Federal Register on

June 28, 2016, and requested that public

comments be received by August 29,

2016 (81 FR 41986). The final handbook

was published on December 21, 2016

(81 FR 93702).

Comment 93: One commenter stated

that projects federalized either through

Federal funding or mechanisms similar

to Federal Highway Administration

delegations should be entitled to enroll

in programmatic habitat conservation

plans and take advantage of the

streamlining opportunity those plans

provide.

Response: During development of

programmatic conservation plans, we

encourage applicants to consider

streamlining opportunities by

coordinating with other Federal and

State permitting agencies to participate

in the plan. If this streamlined

enrollment opportunity is not included

in an existing programmatic plan, the

permittee may amend the plan and

request to amend the permit to add the

activities that were not analyzed in the

original programmatic plan.

Comment 94: One commenter

suggested that we include in the

regulations a requirement that all

habitat conservation plans include a

determination as to whether they

contribute to species recovery under the

ESA or merely avoid jeopardy.

Response: The statutory language in

the permit issuance criteria in ESA

section 10(a)(2)(B) states that ‘‘the taking

will not appreciably reduce the

likelihood of the survival and recovery

of the species in the wild.’’ Therefore,

the statute does not place the burden of

recovery on applicants. Rather, the

applicable standard is that our issuance

of the incidental take permit cannot

reduce the species’ likelihood of

recovery in the wild. However, in our

set of findings, which is part of the

permit decision process, we may

consider including a statement

explaining how our issuance of the

permit contributes to the recovery goals

for the species.

Comment 95: One commenter

suggested that we define ‘‘maximum

extent practicable’’ in the regulations or

revise the handbook to state that what

an applicant has proposed in a habitat

conservation plan represents the most

that the applicant can practicably

accomplish and thus satisfies the

maximum extent practicable criteria.

Another commenter states that the

maximum extent practicable standard

does not require applicants to fully

offset the impacts from the taking.

Response: Chapter 9.5 of the

handbook provides guidance on how

the maximum extent practicable

standard can be met. The revised

regulations do not require applicants to

fully offset the impact of the taking and

do not change the maximum extent

practicable standard.

Comment 96: Several commenters

recommended that the Service allow

research as a mitigation option for

incidental take permits to encourage

additional participation in conservation

plans. Other commenters objected to

allowing research as mitigation, stating

that doing so would authorize take

without properly mitigating the impacts

of the taking. To address this concern,

these commenters recommended that, if

research is allowed as mitigation, the

regulations should clarify that both the

research and the informed conservation

must be requirements of the associated

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incidental take permit and the

mitigation must offset the impacts of the

taking, not just inform future

conservation.

Response: As stated in our mitigation

policy, research that is directly linked to

reducing threats or that provides a

quantifiable benefit to the species may

be appropriate under certain

circumstances.

Comment 97: One commenter stated

that a specific reference to ‘‘climate

change’’ should be added to the

examples provided in the definition of

‘‘changed circumstances.’’

Response: We added ‘‘effects of

climate change’’ in the list of examples

in the definition of ‘‘changed

circumstances.’’

Comment 98: One commenter stated

that the Service’s proposed regulatory

changes to ‘‘unforeseen circumstances’’

omits the existing regulatory

requirement that the Service cannot

impose, without the permittee’s

consent, additional conservation or

mitigation measures upon an incidental

take permit permittee who is properly

implementing their habitat conservation

plan.

Response: The revised regulations do

not include revisions regarding

‘‘changed’’ or ‘‘unforeseen

circumstances.’’ We inadvertently

omitted retention of current

§§ 17.22(b)(5)(i)–(iii) and 17.32(b)(5)(i)–

(iii) in the proposed rule; this final rule

corrects that error, so those paragraphs,

which were missing from the proposed

rule, will be retained via this final rule.

Comments on the Rulemaking Required

Determinations

The following comments pertain to

our analyses in the preamble to the

proposed rule in the Required

Determinations portion, in which we

addressed several statutes and Executive

orders that govern the Federal

rulemaking process.

Comment 99: In regard to our

determination under the Regulatory

Flexibility Act (RFA), one commenter

requested that we provide to the public

for review and comment all the

information developed throughout this

process that led to our decision that the

proposed regulatory revisions would not

have a significant economic impact on

a substantial number of small entities.

Response: The information that we

used to determine that the regulations

will not have a significant economic

impact is outlined in the proposed rule.

As set forth in that document, we

determined that we were not required to

conduct an RFA analysis because this

rule would not significantly change the

way that we currently implement the

section 10 program or expand the reach

of species protections.

Comment 100: One commenter

expressed concern regarding statutory

mandates, particularly the RFA and the

National Environmental Policy Act

(NEPA), asserting that we in essence

exempted ourselves from compliance.

The commenter stated that an RFA

analysis would have demonstrated that

many regulated entities cannot afford

the permit application process or to

sustain the performance levels required

to participate in such agreements over

the long term. The commenter asserted

that not performing these analyses

contributes to the Service’s failure to

comprehend the need for more

affordable conservation activities that

can substantially contribute to species

recovery and conservation without

causing financial hardship for those

who participate.

Response: We complied with all

regulatory requirements in promulgating

this rule. Regarding the RFA, we are not

required to conduct an RFA analysis

because we determined that this rule

will not have a significant economic

effect on a substantial number of small

entities. To the extent that the

regulatory revisions affect the

documents required to support a permit

application, they clarify the

requirements for those documents but

do not impose additional requirements

that would result in significant

increased costs to small entities. In

regard to NEPA, we determined that a

categorical exclusion from NEPA

requirements applies to this rulemaking

action because, when the Service

processes an application for an

enhancement of survival or incidental

take permit, the decision is subject to

the NEPA process at that time.

In terms of creating more affordable

opportunities for individuals to

voluntarily participate in conservation,

property owners can reduce costs by

participating in a programmatic

agreement instead of seeking to

establish an agreement for an individual

property.

Comment 101: Several commenters

stated that we must complete a NEPA

analysis on the proposed rule, including

issuing an environmental assessment or

environmental impact statement that

analyzes the impacts of the proposed

action and alternatives, or determining

that a categorical exclusion applies to

this rulemaking.

Response: As stated in the preamble

to the proposed rule and also in this

final rule, we have complied with NEPA

by determining that the rule is covered

by a categorical exclusion found at 43

CFR 46.210(i). We explained this

determination in an environmental

action statement that is posted in the

docket for this rule.

Comment 102: In regard to our request

for comments specific to the Paperwork

Reduction Act, one commenter

provided recommendations regarding

clarifying the form titles for the

application forms, specifically to revise

the form titles regarding applications for

amendments. The commenter was also

concerned that the language for

justifying an amendment is not

consistent with the No Surprises Rule.

Response: The form titles will not be

revised because there are not separate

forms for amendments. Each form (3–

200–54, 3–200–56, 3–200–59, and 3–

200–60) can be used either to apply for

a new permit or to amend or renew a

permit as specified within Section E of

each form. Additionally, we have

removed the inconsistent language from

our description of the forms.

Required Determinations

Regulatory Planning and Review—

Executive Orders 12866 and 13563

Executive Order 12866 provides that

the Office of Information and Regulatory

Affairs (OIRA) in the Office of

Management and Budget (OMB) will

review all significant rules. OIRA has

determined that this rule is not

significant.

Executive Order 13563 reaffirms the

principles of E.O. 12866 while calling

for improvements in the nation’s

regulatory system to promote

predictability, to reduce uncertainty,

and to use the best, most innovative,

and least burdensome tools for

achieving regulatory ends. The

Executive order directs agencies to

consider regulatory approaches that

reduce burdens and maintain flexibility

and freedom of choice for the public

where these approaches are relevant,

feasible, and consistent with regulatory

objectives. E.O. 13563 provides that

regulations must be based on the best

available science and that the

rulemaking process must allow for

public participation and an open

exchange of ideas. We have developed

this rule in a manner consistent with

E.O. 13563, and in particular the

requirement of retrospective analysis of

existing rules to make the agency’s

regulatory program more effective or

less burdensome in achieving the

regulatory objectives.

Required Determinations

Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(as amended by the Small Business

Regulatory Enforcement Fairness Act

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(SBREFA) of 1996; 5 U.S.C. 601 et seq.),

whenever a Federal agency is required

to publish a notice of rulemaking for

any proposed or final rule, it must

prepare, and make available for public

comment, a regulatory flexibility

analysis that describes the effect of the

rule on small entities (i.e., small

businesses, small organizations, and

small government jurisdictions).

However, no regulatory flexibility

analysis is required if the head of an

agency, or their designee, certifies that

the rule will not have a significant

economic impact on a substantial

number of small entities. SBREFA

amended the Regulatory Flexibility Act

to require Federal agencies to provide a

statement of the factual basis for

certifying that a rule will not have a

significant economic impact on a

substantial number of small entities. We

have determined that this rule would

not have a significant economic impact

on a substantial number of small entities

for the following reasons.

The rule revises the implementing

regulations to clarify existing statutory

requirements that govern the Service’s

processing of applications for ESA

section 10(a) permits. The rule does not

significantly change the way that we

currently implement the section 10

program or expand the reach of species

protections. To the extent that the

revisions relate to the documents

required to support a permit

application, the revisions clarify the

requirements for those documents but

do not impose additional requirements

that would result in significant

increased costs to small entities. Even if

some increased costs are associated with

meeting requirements in the rule, we

anticipate that those costs will be offset

by the revisions that streamline and

clarify the application and decision-

making process, which will save

applicants and permittees time and

money. Therefore, no external entities,

including small businesses, small

organizations, or small governments,

will experience significant economic

impacts from this rule. Because we

certify that this rule will not have a

significant economic impact on a

substantial number of small entities, a

regulatory flexibility analysis is not

required.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501 et

seq.):

(a) On the basis of information

contained in the Regulatory Flexibility

Act section above, this rule would not

‘‘significantly or uniquely’’ affect small

governments. We have determined and

certify pursuant to the Unfunded

Mandates Reform Act, 2 U.S.C. 1502,

that this rule will not impose a cost of

$100 million or more in any given year

on local or State governments or private

entities. A small government agency

plan is not required. As explained

above, small governments will not be

affected because the rule does not

impose additional requirements on any

city, county, or other local municipality.

(b) This rule will not produce a

Federal mandate on State, local, or

Tribal governments or the private sector

of $100 million or greater in any year;

that is, this rule is not a ‘‘significant

regulatory action’’’ under the Unfunded

Mandates Reform Act. This rule will

impose no obligations on State, local, or

Tribal governments.

Takings (E.O. 12630)

In accordance with Executive Order

12630, this rule does not have

significant takings implications. This

rule does not constitute a ‘‘taking’’ of

private property interests, nor will it

directly affect private property. A

takings implication assessment is not

required because this rule: (1) will not

effectively compel a property owner to

suffer a physical invasion of property;

and (2) will not deny all economically

beneficial or productive use of the land

or aquatic resources. This rule

substantially advances a legitimate

government interest (conservation and

recovery of endangered species,

threatened species, and non-listed

species of conservation concern) and

will not present a barrier to all

reasonable and expected beneficial use

of private property.

Federalism (E.O. 13132)

In accordance with Executive Order

13132, we have considered whether this

rule will have significant federalism

effects and have determined that a

federalism summary impact statement is

not required. This rule pertains only to

those entities voluntarily applying for a

permit under section 10 of the ESA and

will not have substantial direct effects

on the States, on the relationship

between the Federal Government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.

Civil Justice Reform (E.O. 12988)

This rule will not unduly burden the

judicial system and meets the applicable

standards provided in sections 3(a) and

3(b)(2) of Executive Order 12988. This

rule clarifies the needs associated with

development of the required documents

to support an application for a permit

under section 10 of the ESA.

Government-to-Government

Relationship With Tribes

In accordance with Executive Order

13175, ‘‘Consultation and Coordination

with Indian Tribal Governments,’’ and

the Department of the Interior’s manual

at 512 DM 2, we considered the possible

effects of this rule on federally

recognized Indian Tribes. We will

continue to collaborate/coordinate with

Tribes on issues related to federally

listed species and their habitats, and we

will provide notification of this rule to

federally recognized Tribes prior to

publication. See Joint Secretarial Order

3206 (‘‘American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities,

and the Endangered Species Act,’’ June

5, 1997).

Paperwork Reduction Act of 1995 (PRA)

This rule contains existing and new

information collections. All information

collections require approval by the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act of 1995 (PRA, 44 U.S.C. 3501 et

seq.). We may not conduct or sponsor,

and you are not required to respond to,

a collection of information unless it

displays a currently valid OMB control

number. The OMB has reviewed and

approved the information collection

requirements associated with permit

applications, reports, and related

information collections associated with

native endangered and threatened

species and assigned the OMB Control

Number 1018–0094 (expires 02/29/

2024, and in accordance with 5 CFR

1320.10, an agency may continue to

conduct or sponsor this collection of

information while the submission is

pending at OMB).

In accordance with the PRA and its

implementing regulations at 5 CFR

1320.8(d)(1), we provided the general

public and other Federal agencies with

an opportunity to comment on our

proposal to revise OMB Control Number

1018–0094. This input helped us assess

the impact of our information collection

requirements and minimize the public’s

reporting burden. It also helped the

public understand our information

collection requirements and provide the

requested data in the desired format.

As part of our continuing effort to

reduce paperwork and respondent

burdens, and in accordance with 5 CFR

1320.8(d)(1), we invite the public and

other Federal agencies to comment on

any aspect of this proposed information

collection, including:

(1) Whether or not the collection of

information is necessary for the proper

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performance of the functions of the

agency, including whether or not the

information will have practical utility;

(2) The accuracy of our estimate of the

burden for this collection of

information, including the validity of

the methodology and assumptions used;

(3) Ways to enhance the quality,

utility, and clarity of the information to

be collected; and

(4) Ways to minimize the burden of

the collection of information on those

who are to respond, including through

the use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

response.

Comments that you submit in

response to this proposed rulemaking

are a matter of public record. Before

including your address, phone number,

email address, or other personal

identifying information in your

comment, you should be aware that

your entire comment—including your

personal identifying information—may

be made publicly available at any time.

While you can ask us in your comment

to withhold your personal identifying

information from public review, we

cannot guarantee that we will be able to

do so.

The Endangered Species Act (16

U.S.C. 1531 et seq.) was established to

provide a means to conserve the

ecosystems upon which endangered and

threatened species depend, to provide a

program for the conservation of these

endangered and threatened species, and

to take the appropriate steps that are

necessary to bring any endangered or

threatened species to the point where

measures provided for under the Act are

no longer necessary. Section 10(a)(1)(A)

of the ESA authorizes us to issue

permits for otherwise prohibited

activities in order to enhance the

propagation or survival of the affected

species. Section 10(a)(1)(B) of the ESA

authorizes us to issue permits if the

taking is incidental to the carrying out

of an otherwise lawful activity. ESA

section 10(d) requires that such permits

be applied for in good faith and, if

granted, will not operate to the

disadvantage of endangered species, and

will be consistent with the purposes of

the Act.

All Service permit applications are

tailored to a specific activity based on

the requirements for specific types of

permits. We collect standard identifier

information for all applications for

permits, such as the name of the

applicant and the applicant’s address,

telephone numbers, if applicable, tax

identification number, email address,

description of activity being requested

under the ESA, and, after the permit has

been issued, a report (description of

activity that was conducted under that

permit). Standardization of general

information common to the application

forms makes the filing of applications

easier for the public and helps to

expedite our review.

The information that we collect is the

minimum necessary for us to determine

if the applicant/permittee meets, or

continues to meet, permit issuance

requirements. Respondents submit

application forms periodically as

needed. Submission of reports is

generally on an annual basis, but for

some activities (such as activities

associated with sea turtles), may be on

a more frequent basis, as needed (see

those specific reporting forms). This

information collection request includes

minor modifications to the layout and

content of the currently approved

application forms so that they:

(a) Are easier to understand and

complete,

(b) Minimize the number of

completed pages the applicant must

submit, and

(c) Accommodate future electronic

permitting in the Service’s new ePermits

System.

In addition to the application forms,

permit holders must submit the reports

in accordance with their permits issued

based on 50 CFR part 17. Some Service

annual reports associated with permits

are in the 3–202 series of forms, each

tailored to a specific activity based on

the requirements for specific types of

permits. In some cases, we developed

specific information collection forms to

facilitate and standardize the reporting

and review, and to facilitate

development of electronic forms and

electronic reporting and retrieval of that

information.

Annual reporting of permit

compliance is required in most cases

under the authority of section

10(a)(1)(A) and 10(a)(1)(B) of the ESA

and its implementing regulations in 50

CFR part 17. These reports allow us to

evaluate the proper implementation of

the conservation agreement or plan,

ensure take authorization has not been

exceeded, formulate further research,

and develop and adjust management

and recovery plans for the species.

The proposed revisions to existing

and new reporting and/or recordkeeping

requirements identified below require

approval by OMB:

(1) (REVISED) Application—FWS

Form 3–200–54, ‘‘Enhancement of

Survival Permits Associated with

Conservation Benefit Agreements’’—

This application can be used for a single

species or multiple species. Agreements

may vary widely in size, scope,

structure, and complexity, and in the

activities they address. We revised this

application form to align with the

regulation revisions, which includes

referencing one ‘‘conservation benefit

agreement’’ instead of the two prior

agreement types, adding a question

asking if the applicant requests to return

to baseline upon permit expiration,

clarifying language regarding

amendments, and adding clarifying

language regarding authorized agents.

(2) (NEW) Application Amendments—

Enhancement of Survival Permits (FWS

Form 3–200–54)—Permittees may

request amendments to a permit, or the

Service may amend a permit for just

cause upon a written finding of

necessity. Amendments comprise

changes to the permit authorization or

conditions. This includes, but is not

limited to, an increase or decrease in the

estimated amount of take or changes in

ownership of a project. The permittee

must apply for amendments to the

permit by submitting a description of

the modified activity and the changed

impacts. These are considered

substantive amendments and incur a

fee. Permittees do not require a new

permit if there is a change in the legal

individual or business name, or in the

mailing address of the permittee. A

permittee is required to notify the

issuing office within 10 calendar days of

such change. This provision does not

authorize any change in location of the

conduct of the permitted activity when

approval of the location is a qualifying

condition of the permit.

(3) (NEW) Permit Transfers—

Enhancement of Survival Permits—

Permits issued under these regulations

may be transferred in whole or in part

through a joint submission by the

permittee and the proposed transferee,

or in the case of a deceased permitted,

the deceased permittee’s legal

representative and the proposed

transferee. Transferring permits does not

incur a fee.

(4) (REVISED) Conservation Benefit

Agreement—As part of the application

process associated with Form 3–200–54,

applicants must submit a conservation

benefit agreement. A conservation

benefit agreement must include the

following:

i. Conservation Measures—A

complete description of the

conservation measure or measures,

including the location of the activity or

activities to be covered by the permit

and their intended outcome for the

covered species.

ii. Covered Species—The common

and scientific names of the covered

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species for which the applicant will

conduct conservation measures and may

need authorization for take.

iii. Goals and Objectives—The

measurable biological goals and

objectives of the conservation measures

in the agreement.

iv. Enrollment Baseline—The baseline

condition of the property or area to be

enrolled.

v. Net Conservation Benefit—A

description of how the measures are

reasonably expected to improve each

covered species’ existing baseline

condition on the enrolled property and

result in a net conservation benefit as

defined at § 17.3.

vi. Monitoring—The steps the

applicant will take to monitor and

adaptively manage to ensure the goals

and objectives of the agreement are met,

the responsibilities of all parties are

carried out, and the agreement will be

properly implemented.

vii. Neighboring Property Owners—A

description of the enrollment process to

provide neighboring property owners

take coverage under 50 CFR

17.22(c)(5)(ii) or 17.32(c)(5)(ii), if

applicable.

viii. Return to Baseline Condition—

The applicant’s choice between

including authorization to return

enrolled property to baseline condition

or forgoing that authorization. For

applicants seeking authority to return to

baseline condition, a description of

steps that may be taken to return the

property to baseline condition and

measures to reduce the effects of the

take to the covered species.

ix. Additional Actions—Any other

measures that the Director may require

as necessary or appropriate in order to

meet the issuance criteria in 50 CFR

17.22(c)(2) or 17.32(c)(2) or to avoid

conflicts with other Service

conservation efforts.

(5) (REVISED) Application—FWS

Form 3–200–56, ‘‘Incidental Take

Permits Associated with Habitat

Conservation Plans’’—Those who

believe their otherwise-lawful activities

will result in the ‘‘incidental take’’ of a

listed wildlife species may choose to

seek a permit. The purpose of the

incidental take permit is to exempt non-

Federal entities—such as States, local

governments, businesses, corporations,

and private landowners—from the

prohibitions of section 9. The permittee

also has assurances from the Service

through the ‘‘No Surprises’’ regulation.

We made several revisions to the

application form to be consistent with

the regulations, which include

clarifying amendments and removing

any language regarding implementing

agreements.

(6) (NEW) Application Amendments—

Incidental Take (FWS Form 3–200–56)—

Amendments to a permit may be

requested by the permittee, or the

Service may amend a permit for just

cause upon a written finding of

necessity. Amendments comprise

changes to the permit authorization or

conditions. This includes, but is not

limited to, an increase or decrease in the

requested amount of take or changes in

ownership of a project. The permittee

must apply for amendments to the

permit by submitting a description of

the modified activity and the changed

impacts. These changes are considered

substantive and incur a fee. A permittee

is not required to obtain a new permit

if there is a change in the legal

individual or business name, or in the

mailing address of the permittee. A

permittee is required to notify the

issuing office within 10 calendar days of

such change. This provision does not

authorize any change in location of the

conduct of the covered activity when

approval of the location is a qualifying

condition of the permit.

(7) (NEW) Permit Transfers—

Incidental Take—Permits issued under

these regulations may be transferred in

whole or in part through a joint

submission by the permittee and the

proposed transferee, or in the case of a

deceased permitted, the deceased

permittee’s legal representative and the

proposed transferee. Transferring

permits does not incur a fee.

(8) (REVISED) Habitat Conservation

Plan—As part of the application

process, applicants are also required to

submit a habitat conservation plan with

their completed Form 3–200–56. A

habitat conservation plan must include

the following:

i. Project Description—A complete

description of the project including

purpose, location, timing, and proposed

covered activities.

ii. Covered Species—As defined in

§ 17.3, common and scientific names of

species sought to be covered by the

permit, as well as the number, age, and

sex of those individuals, if known.

iii. Goals and Objectives—The

measurable biological goals and

objectives of the conservation plan.

iv. Anticipated Take—Expected

timing, geographic distribution, type

and amount of take, and the likely

impact of take on the species.

v. Conservation Program, that

explains the:

•Conservation measures that will be

taken to minimize and mitigate the

impacts of the incidental take for all

covered species commensurate with the

taking;

•Roles and responsibilities of all

entities involved in implementation of

the conservation plan;

•Changed circumstances and the

planned responses in an adaptive

management plan; and

•Procedures for dealing with

unforeseen circumstances.

vi. Conservation Timing—The timing

of mitigation relative to the incidental

take of covered species.

vii. Permit Duration—The rationale

for the requested permit duration.

viii. Monitoring—Monitoring of the

effectiveness of the mitigation and

minimization measures, progress

towards achieving the biological goals

and objectives, and permit compliance.

ix. Funding Needs and Sources—An

accounting of the costs for properly

implementing the conservation plan and

the sources and methods of funding.

x. Alternative Actions—The

alternative actions to the taking the

applicant considered and the reasons

why such alternatives are not being

used.

xi. Additional Actions—Other

measures that the Director requires as

necessary or appropriate, including

those necessary or appropriate to meet

the issuance criteria or other statutory

responsibilities of the Service.

(9) (REVISED) Form 3–200–59,

‘‘Recovery Permit Application Form’’—

This application form is used to apply

for a permit for any act otherwise

prohibited by section 9 for scientific

purposes or to enhance the propagation

or survival of the affected species.

The data acquired from the issuance

of recovery permits is valuable to the

decisions that the Service and its

partners make regarding land

acquisition, land management,

consultations under section 7 of the

ESA, recovery plans, and downlisting or

delisting.Data from these federally

issued permits is used on a landscape

level. Without recovery permits, our

basic knowledge about the abundance,

stability, and resiliency of populations,

habitat use and requirements,

geographic ranges, and diseases of

federally listed species would be much

more limited. Regulations at 50 CFR

13.25(a) and (b) prohibit permit

transfers for this permit type.

We revised Form 3–200–59 to fix

typos, incorporate references to

ePermits, and update links to the

Service website.

(10) (REVISED) Form 3–200–60,

Interstate Commerce Application

Form’’—This application form is used to

apply for an interstate commerce permit

that allows for take otherwise prohibited

by section 9 of the ESA. Interstate

commerce permits authorize the

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purchase and sale of listed species

across State lines. For wildlife, the

buyer obtains interstate commerce

permits are obtained by the buyer; for

plants, the seller obtains the permits.

Regulations at 50 CFR 13.25(a) and (b)

prohibit permit transfers for this permit

type.

We revised Form 3–200–60 to fix

typos, incorporate references to

ePermits, update links to the Service

website, and add information in section

E (question A7) to ensure that

applicants provide information

necessary for the permit decision as

required by regulation.

(11) (NEW) Application Amendments

(FWS Forms 3–200–59 and 3–200–60)—

The permittee may request amendments

to a permit. Amendments comprise

changes to the permit authorization or

conditions. Amendments include, but

are not limited to, an increase or

decrease in the estimated amount of

take, changes in species or numbers of

species requested, or a change in the

geographic location where take is

authorized. The permittee must apply

for amendments to the permit by

submitting a description of the modified

activity and the changed impacts. These

are considered substantive amendments

and incur a fee. A permittee is not

required to obtain a new permit if there

is a change in the legal individual or

business name, or in the mailing

address of the permittee. A permittee

must notify the issuing office within 10

calendar days of such change. This

provision does not authorize any change

in location of the conduct of the

permitted activity when approval of the

location is a qualifying condition of the

permit.

(12) (REVISED) Form 3–2530,

‘‘California/Nevada/Klamath Basin, OR,

Recovery Permit Annual Summary

Report Form’’—We propose to change

the ‘‘TE’’ field to ‘‘permit number’’ on

each page of the form.

We also propose to renew the existing

information collection requirements

identified below:

(1) Annual Reports (Enhancement of

Survival Permit Associated with

Conservation Benefit Agreements)—

Annual reports associated with

conservation benefit agreements are

non-form requirements and are required

by Federal permitting regulations under

50 CFR 13.45, unless otherwise

specified in the permit. Reports contain

information regarding the

implementation of conservation

measures and the amount of take that

may have occurred during the reporting

year, both of which are essential to

ensuring compliance with the permit.

Permittees may submit the information

in any format they choose.

(2) Notifications (Take)—Private

landowners who have an enhancement

of survival permit (and accompanying

conservation benefit agreement) must

notify us if their land management

activities incidentally take a listed or

candidate species covered under their

permit.

(3) Notifications (Change in Property

Owner)—We issue enhancement of

survival permits to the landowners, and

their name is printed on the permit. If

ownership of the property changes, this

permit does not automatically transfer

to the new property owner. Therefore,

we ask the permittee to notify us if there

is a change in property ownership so

that we may work with the new

property owner to determine if they

want to continue the agreement and

permit and then update the permit as

appropriate.

(4) Annual Reports (Habitat

Conservation Plans)—Annual reports

associated with conservation plans are

non-form requirements and are required

by Federal permitting regulations under

50 CFR 13.45, unless otherwise

specified in the permit. Reports contain

information regarding the

implementation of the habitat

conservation plan, including carrying

out the minimization and mitigation

measures and the amount of take that

has occurred, both of which are

essential to ensuring compliance with

the permit. Permittees may submit the

information in any format they choose.

(5) Annual Reports (Recovery and

Interstate Commerce)—Annual reports

associated with recovery permits are

non-form requirements, except for a few

species where there are taxa-specific

OMB-approved reporting forms.

Interstate commerce permits require

reports upon the receipt of wildlife.

Interstate commerce’s annual sales of

plants also require reports. Both the

recovery permits and interstate

commerce permits require reporting as

required by Federal permitting

regulations under 50 CFR 13.45, unless

otherwise specified in the permit.

Recovery permit reports contain

information regarding the activities

conducted under the permit and the

amount of take that has occurred, both

of which are essential to ensuring

compliance with the permit. Permittees

may submit the information in any

format they choose unless an OMB-

approved form exists for the species for

which they are reporting; otherwise,

they may elect to use a taxa-specific

form if is available.

(6) Request to Revise List of

Authorized Individuals—When a new,

renewed, or amended permit is issued,

the list of authorized individuals (LAI)

is typically at the end of a permit on

Regional Office letterhead. The LAI

captures those expressly authorized to

perform otherwise prohibited activities

on an active permit.

When a permittee requests changes to

the individuals authorized on a permit,

the Field Office reviews the

qualifications. It then issues an updated

standalone LAI with the new and

current qualified individuals. Issuance

of a standalone LAI is considered an

administrative change to maintain an

up-to-date list of those authorized for

the permit’s species/activities. Since

there are no revisions to the previously

authorized species or geographic

localities on the permit itself, the action

is purely a streamlining measure for the

regions to manage the high volume of

personnel changes without issuing an

amendment or new permit.

(7) Notification (Escape of Wildlife)—

If a recovery or interstate commerce

permit authorizes activities that include

keeping wildlife in captivity, for health

and safety reasons, we ask the permittee

to immediately notify us if any of the

captive wildlife escape.

(8) Annual Reports Associated with

Native Endangered and Threatened

Species Under the ESA—We use the

following annual report forms specific

to particular species for activities

associated with native endangered and

threatened species permits under the

ESA. The Service designed the forms to

facilitate the electronic reporting

specifically for each species. The

Service will use the reported data to

evaluate the success of the permitted

project, formulate further research, and

develop and adjust management and

recovery plans for the species. The data

will also inform 5-year reviews and

species status assessments conducted

under the ESA.

•Form 3–202–55b, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Midwestern Bat Reporting Form’’;

•Form 3–202–55c, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Southeastern Bat Reporting Form’’;

•Form 3–202–55d, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Northeastern Bat Reporting Form’’;

•Form 3–202–55e, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Plains/Rockies Bat Reporting Form’’;

•FWS Form 3–202–55f, ‘‘Non-

Releasable Sea Turtle Annual Report’’;

•FWS Form 3–202–55g, ‘‘Sea Turtle

Rehabilitation’’;

•Form 3–2523, ‘‘Midwest Geographic

Area: Freshwater Mussel Reporting

Form’’;

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•Form 3–2526, ‘‘Midwest Geographic

Area: Bumble Bee Reporting Form’’;

•Form 3–2530, ‘‘California/Nevada/

Klamath Basin, OR, Recovery Permit

Annual Summary Report Form’’;

•Form 3–2532, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Alaska Bat Reporting Form’’;

•Form 3–2533, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Northwestern Bat Reporting Form’’; and

•Form 3–2534, ‘‘U.S. Fish and

Wildlife Service Geographic Area:

Western Bat Reporting Form’’.

Copies of the draft forms are available

to the public by submitting a request to

the Service Information Collection

Clearance Officer using one of the

methods identified in

ADDRESSES

.

Title of Collection: Federal Fish and

Wildlife Permit Applications and

Reports—Native Endangered and

Threatened Species; 50 CFR parts 10,

13, and 17.

OMB Control Number: 1018–0094.

Form Numbers: FWS Forms 3–200–

54, 3–200–56, 3–200–59, 3–200–60, 3–

202–55a through 3–202–55g, 3–2523, 3–

2526, 3–2530, and 3–2532 through 3–

2534.

Type of Review: Revision of a

currently approved collection.

Respondents/Affected Public:

Individuals; private sector; and State/

local/Tribal governments.

Total Estimated Number of Annual

Respondents: 5,380.

Total Estimated Number of Annual

Responses: 5,380.

Estimated Completion Time per

Response: Varies from 30 minutes to

2,080 hours, depending on activity.

Total Estimated Number of Annual

Burden Hours: 220,660.

Respondent’s Obligation: Required to

obtain or retain a benefit.

Frequency of Collection: On occasion

for applications; annually or on

occasion for reports and notifications.

Total Estimated Annual Nonhour

Burden Cost: $19,415,460 (primarily

associated with application processing

and administrative fees).

On February 9, 2023, we published in

the Federal Register (88 FR 8380) a

proposed rule (RIN 1018–BF99) that

announced our intention to request

OMB approval of the revisions to this

collection explained above and the

simultaneous renewal of OMB Control

No. 1018–0094. In that proposed rule,

we solicited comments for 60 days on

the information collections in this

submission, ending on April 10, 2023.

Summaries of comments addressing the

information collections contained in

this rule, as well as the agency response

to those comments, can be found in the

Summary of Comments and Responses

section of this rule, as well as in the

information collection request

submitted to OMB on the RegInfo.gov

website. Send your written comments

and suggestions on this information

collection by the date indicated in

DATES

to the Service Information

Collection Clearance Officer, U.S. Fish

and Wildlife Service, MS: PRB/PERMA

(JAO), 5275 Leesburg Pike, Falls

Church, VA 22041–3803 (mail); or by

email to Info_Coll@fws.gov. Please

reference OMB Control Number 1018–

0094 in the subject line of your

comments.

National Environmental Policy Act

We analyzed this rule in accordance

with the criteria of the National

Environmental Policy Act (NEPA; 42

U.S.C. 4321 et seq.), the Department of

the Interior regulations on

Implementation of NEPA (43 CFR

46.10–46.450), and the Department of

the Interior Manual (516 DM 8).

We find that the categorical exclusion

found at 43 CFR 46.210(i) applies to the

regulation changes. At 43 CFR 46.210(i),

the Department of the Interior has found

that the following categories of actions

would not individually or cumulatively

have a significant effect on the human

environment and are, therefore,

categorically excluded from the

requirement for completion of an

environmental assessment or

environmental impact statement:

Policies, directives, regulations, and

guidelines: that are of an administrative,

financial, legal, technical, or procedural

nature; or whose environmental effects are

too broad, speculative, or conjectural to lend

themselves to meaningful analysis and will

later be subject to the NEPA process, either

collectively or case-by-case.

This exclusion applies to this

rulemaking action because, when the

Service processes an application for an

enhancement of survival permit or

incidental take permit, the decision is

subject to the NEPA process at that time.

Energy Supply, Distribution or Use (E.O.

13211)

Executive Order 13211 requires

agencies to prepare statements of energy

effects when undertaking certain

actions. The revised regulations are not

expected to affect energy supplies,

distribution, or use. Therefore, this

action is a not a significant energy

action, and no statement of energy

effects is required.

Authority

We issue this rule under the authority

of the Endangered Species Act, as

amended (16 U.S.C. 1531 et seq.).

List of Subjects

50 CFR Part 13

Administrative practice and

procedure, Exports, Fish, Imports,

Plants, Reporting and recordkeeping

requirements, Transportation, Wildlife.

50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Plants, Reporting and

recordkeeping requirements,

Transportation, Wildlife.

Regulation Promulgation

Accordingly, we amend parts 13 and

17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as set

forth below:

PART 13—GENERAL PERMIT

PROCEDURES

■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

■2. Amend § 13.23 by revising the

section heading and paragraph (b) to

read as follows:

§ 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 § 17.22(b) or (c) of

this subchapter will be consistent with

the requirements of § 17.22(b)(5) or

(c)(5) of this subchapter and amendment

of a permit issued under § 17.32(b) or (c)

of this subchapter will be consistent

with the requirements of § 17.32(b)(5) or

(c)(5) of this subchapter.

* * * * *

■3. Amend § 13.24 by revising the

section heading and paragraph (c)

introductory text to read as follows:

§ 13.24 Rights of succession by certain

persons.

* * * * *

(c) In the case of permits issued under

the regulations in this subchapter in

§ 17.22(b) and (c), §17.32(b) and (c), or

50 CFR part 22, the successor’s

authorization under the permit is also

subject to our determination that:

* * * * *

■4. Amend § 13.25 by revising

paragraphs (b) and (c) and the

introductory text of paragraph (e) to

read as follows:

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§ 13.25 Transfer of permits and scope of

permit authorization.

* * * * *

(b) Permits issued under the

regulations in this subchapter in

§ 17.22(b) and (c), §17.32(b) and (c), or

50 CFR part 22 may be transferred to a

successor subject to our determination

that the proposed transferee:

(1) Meets all of the qualifications

under this part for holding a permit;

(2) Has provided adequate written

assurances of sufficient funding for the

conservation measures, conservation

plan, or conservation benefit agreement,

and will implement the relevant terms

and conditions of the permit, including

any outstanding minimization and

mitigation requirements; and

(3) Has provided other information

that we determine is relevant to the

processing of the submission.

(c) In the case of the transfer of

property subject to an agreement and

permit issued under § 17.22(c) or

§ 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

§ 17.22(b) and (c) or §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:

* * * * *

■5. Amend § 13.28 by revising

paragraph (a)(5) to read as follows:

§ 13.28 Permit revocation.

(a) * * *

(5) Except for permits issued under

§ 17.22(b) and (c) or §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

■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

■7. Amend § 17.2 by:

■a. Revising paragraph (a);

■b. Redesignating paragraphs (b)

through (e) as paragraphs (c) through (f);

and

■c. Adding a new paragraph (b).

The revision and addition read as

follows:

§ 17.2 Scope of regulations.

(a) The regulations of this part apply

only to endangered and threatened

wildlife and plants, except for § 17.22(b)

and (c) and § 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.

* * * * *

■8. Amend § 17.3 by:

■a. Revising the definition for

‘‘Adequately covered’’;

■b. Adding in alphabetical order

definitions for ‘‘Applicant’’ and

‘‘Baseline condition’’;

■c. Revising the definition for

‘‘Changed circumstances’’;

■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

■e. Revising the definition for

‘‘Property owner’’.

The revisions and additions read as

follows:

§ 17.3 Definitions.

* * * * *

Adequately covered means, with

respect to species listed pursuant to

section 4 of the Act, that a proposed

conservation plan has satisfied the

permit issuance criteria under section

10(a)(2)(B) of the Act for the species

covered by the plan, and, with respect

to non-listed species, that a proposed

conservation plan has satisfied the

permit issuance criteria under section

10(a)(2)(B) of the Act that would apply

if the non-listed species covered by the

plan were listed. For the Service to

cover a species under a conservation

plan, it must be identified as a covered

species on the section 10(a)(1)(B)

permit.

* * * * *

Applicant means the person(s), as

defined in the Act, who is named and

identified on the application and, by

signing the application, assumes the

responsibility for implementing the

terms of an issued permit. Other parties

including, without limitations, affiliates,

associates, subsidiaries, corporate

families, and assigns of an applicant are

not applicants or permittees unless, in

accordance with applicable regulations,

an application or permit has been

amended to include them or unless a

permit has been transferred consistent

with § 13.25.

* * * * *

Baseline condition means population

estimates and distribution or habitat

characteristics across the enrolled

property that currently sustains seasonal

or permanent use by the covered species

at the time a conservation benefit

agreement is executed by the Service

and the property owner, or by a

programmatic permit holder and the

property owner, under §§ 17.22(c) and

17.32(c) of this part, as applicable.

* * * * *

Changed circumstances are changes

in circumstances affecting a species or

geographic area covered by a

conservation plan that can reasonably

be anticipated by the plan’s developers

and the Service for which responses can

be identified in a conservation plan

(e.g., the listing of new species, effects

of climate change, or a fire or other

natural catastrophic event in areas

prone to those events).

* * * * *

Covered activity means an action or

series of actions that causes take of a

covered species and for which take is

authorized by a permit under § 17.22(b)

and (c) or § 17.32(b) and (c), as

applicable.

Covered species means any species

that are included in a conservation plan

or agreement and for which take is

authorized through an incidental take or

enhancement of survival permit.

(1) Covered species include species

listed as endangered or threatened.

(2) Covered species may include

species that are proposed or candidates

for listing, at-risk species, or species that

have other Federal protective status. An

at-risk species is a non-listed species the

status of which is declining and that is

at risk of becoming a candidate for

listing under the Act; at-risk species

may include, but are not limited to,

State-listed species, species identified

by States as species of greatest

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conservation need, or species with State

heritage ranks of G1 or G2.

(3) An incidental take or enhancement

of survival permit need not include a

listed species.

* * * * *

Net conservation benefit means the

cumulative benefit provided through

implementation of a conservation

benefit agreement that is designed to

improve the existing baseline condition

of a covered species by reducing or

eliminating threats, or otherwise

improving the status of covered species,

minus the adverse impacts to covered

species from ongoing land or water use

activities and conservation measures, so

that the condition of the covered species

or the amount or quality of its habitat

is reasonably expected to be greater with

implementation of the agreement than

without it. If the Service determines that

the species and habitat are already

adequately managed to the benefit of the

species, a net conservation benefit will

be achieved if the property owner

commits to continuing the species’

management for a specified period of

time, including addressing any likely

future threats that are under the

property owner’s control, with the

anticipation that the population will

increase, habitat quality will improve,

or both.

* * * * *

Permit area means the geographic

area where the take permit applies. The

permit area must be delineated in the

permit and be included within a

conservation plan or agreement.

Permittee means the named applicant

who has been issued a permit and who

assumes responsibility for

implementing the permit. Other parties

including, without limitation, affiliates,

associates, subsidiaries, corporate

families, and assigns of a permittee are

not permittees unless the permit has

been amended or transferred consistent

with § 13.25.

Plan area means the geographic area

where covered activities, including

mitigation, described in the

conservation plan associated with an

incidental take permit may occur. The

plan area must be identified in the

conservation plan.

* * * * *

Programmatic permit associated with

a conservation benefit agreement means

an enhancement of survival permit

issued under § 17.22(c) or §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 § 17.22(b) or

§ 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 § 17.22(b) and (c)

and § 17.32(b) and (c), means a person

or other entity with a property interest

(including owners of rights to water or

other natural resources) sufficient to

carry out the proposed activities, subject

to applicable State, Tribal, and Federal

laws and regulations.

* * * * *

Subpart C—Endangered Wildlife

■9. Amend § 17.22 by:

■a. Revising the section heading and

paragraphs (b), (c), and (d); and

■b. Removing paragraph (e).

The revisions read as follows:

§ 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

§ 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

§ 17.3, common and scientific names of

species sought to be covered by the

permit, as well as the number, age, and

sex, if known.

(iii) Goals and objectives. The

measurable biological goals and

objectives of the conservation plan.

(iv) Anticipated take. Expected

timing, geographic distribution, type

and amount of take, and the likely

impact of take on the species.

(v) Conservation program, that

explains the:

(A) Conservation measures that will

be taken to minimize and mitigate the

impacts of the incidental take for all

covered species commensurate with the

taking;

(B) Roles and responsibilities of all

entities involved in implementation of

the conservation plan;

(C) Changed circumstances and the

planned responses in an adaptive

management plan; and

(D) Procedures for dealing with

unforeseen circumstances.

(vi) Conservation timing. The timing

of mitigation relative to the incidental

take of covered species.

(vii) Permit duration. The rationale for

the requested permit duration.

(viii) Monitoring. Monitoring of the

effectiveness of the mitigation and

minimization measures, progress

towards achieving the biological goals

and objectives, and permit compliance.

The scope of the monitoring program

should be commensurate with the scope

and duration of the conservation

program and the project impacts.

(ix) Funding needs and sources. An

accounting of the costs for properly

implementing the conservation plan and

the sources and methods of funding.

(x) Alternative actions. The

alternative actions to the taking the

applicant considered and the reasons

why such alternatives are not being

used.

(xi) Additional actions. Other

measures that the Director requires as

necessary or appropriate, including

those necessary or appropriate to meet

the issuance criteria or other statutory

responsibilities of the Service.

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (b)(1) of this section, the

Director will decide whether a permit

should be issued. The Director will

consider the general issuance criteria in

§ 13.21(b) of this subchapter, except for

§ 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.

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(vi) The measures and conditions, if

any, required under paragraph (b)(1)(xi)

of this section will be met.

(vii) The applicant has provided any

other assurances the Director requires to

ensure that the conservation plan will

be implemented.

(3) Permit conditions. In addition to

the general conditions set forth in part

13 of this subchapter, every permit

issued under the regulations in this

section will contain terms and

conditions that the Director deems

necessary or appropriate to carry out the

purposes of the permit and the

conservation plan including, but not

limited to, additional conservation

measures, if any, that may be required

pursuant to paragraph (b)(1)(xi) of this

section, specified deadlines, and

monitoring and reporting requirements

deemed necessary for determining

whether the permittee is complying

with those terms and conditions. The

Director will rely upon existing

reporting requirements to the maximum

extent practicable.

(4) Permit duration and effective date.

In determining the duration of a permit,

the Director will consider the duration

of the activities for which coverage is

requested; the time necessary to fully

minimize and mitigate the impacts of

the taking; and uncertainties related to

the impacts of the taking, success of the

mitigation, and external factors that

could affect the success of the

conservation plan.

(i) Permits issued under this

paragraph (b) become effective for listed

covered species upon the date the

permittee signs the incidental take

permit, which must occur within 90

calendar days of issuance. For non-

listed covered species, the permit’s take

authorization becomes effective upon

the effective date of the species’ listing

provided the permittee signed the

permit within 90 calendar days of

issuance and has properly implemented

the conservation plan.

(ii) The permit expires on the date

indicated on the face of the permit.

(5) Assurances provided to permittee

in case of changed or unforeseen

circumstances. The assurances in this

paragraph (b)(5) apply only to incidental

take permits issued in accordance with

paragraph (b)(2) of this section where

the conservation plan is being properly

implemented and the permittee is

properly complying with the incidental

take permit. The assurances apply only

with respect to species covered by the

conservation plan. These assurances do

not apply to Federal agencies or to

incidental take permits issued prior to

March 25, 1998. The assurances

provided in incidental take permits

issued prior to March 25, 1998, remain

in effect, and those permits will not be

revised.

(i) Changed circumstances provided

for in the plan. If additional

conservation and mitigation measures

are deemed necessary to respond to

changed circumstances and were

provided for in the plan’s operating

conservation program, the permittee

will implement the measures specified

in the plan.

(ii) Changed circumstances not

provided for in the plan. If additional

conservation and mitigation measures

are deemed necessary to respond to

changed circumstances and were not

provided for in the plan’s operating

conservation program, the Director will

not require any conservation and

mitigation measures in addition to those

provided for in the plan without the

consent of the permittee, provided the

Director determines that the plan is

being properly implemented.

(iii) Unforeseen circumstances. (A) In

negotiating a response to unforeseen

circumstances, the Director will not

require the commitment of additional

land, water, or financial compensation

or additional restrictions on the use of

land, water, or other natural resources

beyond the level otherwise agreed upon

for the species covered by the

conservation plan without the consent

of the permittee.

(B) If additional conservation and

mitigation measures are deemed

necessary to respond to unforeseen

circumstances, the Director may require

additional measures of the permittee

where the conservation plan is being

properly implemented, but only if such

measures:

(1) Are limited to modifications

within conserved habitat areas, if any,

or to the conservation plan’s operating

conservation program for the affected

species; and

(2) Maintain the original terms of the

conservation plan to the maximum

extent possible.

(3) Additional conservation and

mitigation measures will not involve the

commitment of additional land, water,

or financial compensation, or additional

restrictions on the use of land, water, or

other natural resources otherwise

available for development or use under

the original terms of the conservation

plan, without the consent of the

permittee.

(C) The Director will have the burden

of demonstrating that unforeseen

circumstances exist, using the best

scientific and commercial data

available. These findings must be

clearly documented and based upon

reliable technical information regarding

the status and habitat requirements of

the affected species. The factors to be

considered by the Director include, but

are not limited to, the following:

(1) Size of the current range of the

affected species;

(2) Percentage of range adversely

affected by the conservation plan;

(3) Percentage of range conserved by

the conservation plan;

(4) Ecological significance of that

portion of the range affected by the

conservation plan;

(5) Level of knowledge about the

affected species and the degree of

specificity of the species’ conservation

program under the conservation plan;

and

(6) Whether failure to adopt

additional conservation measures would

appreciably reduce the likelihood of

survival and recovery of the affected

species in the wild.

(6) Additional actions. Nothing in this

section will be construed to limit or

constrain the Director, any Federal,

State, local, or Tribal government

agency, or a private entity from taking

additional actions, at their own expense,

to protect or conserve a species

included in a conservation plan.

(7) Permit amendment or renewal.

Any amendment or renewal of an

existing permit issued under this part is

a new agency decision and is therefore

subject to all current relevant laws and

regulations. The application will be

evaluated based on the current policies

and guidance in effect at the time of the

amendment or renewal decision.

Evaluation of an amendment extends

only to the portion(s) of the

conservation plan or permit for which

the amendment is requested.

Amendment or renewal applications

must meet issuance criteria based upon

the best available commercial and

scientific data at the time of the permit

decision.

(8) Discontinuance of permit activity.

Notwithstanding the provisions of

§ 13.26 of this subchapter, a permittee

under this paragraph (b) remains

responsible for any outstanding

minimization and mitigation measures

required under the terms of the permit

for take that occurs prior to surrender of

the permit and such minimization and

mitigation measures as may be required

pursuant to the termination provisions

of an implementing agreement,

conservation plan, or permit even after

surrendering the permit to the Service

pursuant to § 13.26 of this subchapter.

The Service will deem the permit

canceled only upon a determination that

such minimization and mitigation

measures have been implemented. Upon

surrender of the permit, no further take

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by the permittee will be authorized

under the terms of the surrendered

permit.

(9) Criteria for revocation. A permit

issued under this paragraph (b) may not

be revoked for any reason except:

(i) The reasons set forth in

§ 13.28(a)(1) through (4) of this

subchapter; or

(ii) If continuation of the permitted

activity would be inconsistent with the

criterion set forth in 16 U.S.C.

1539(a)(2)(B)(iv) and the inconsistency

has not been remedied.

(c)(1) Application requirements for an

enhancement of survival permit

associated with conservation benefit

agreements. The applicant must submit

Form 3–200–54, the processing fee (if

applicable), and a conservation benefit

agreement. The Service will process the

application when the Director

determines the application has met all

statutory and regulatory requirements

for a complete application. A

conservation benefit agreement must

include the following:

(i) Conservation measures. A

complete description of the

conservation measure or measures,

including the location of the activity or

activities to be covered by the permit,

and their intended outcome for the

covered species.

(ii) Covered species. The common and

scientific names of the covered species

for which the applicant will conduct

conservation measures and may need

authorization for take.

(iii) Goals and objectives. The

measurable biological goals and

objectives of the conservation measures

in the agreement.

(iv) Enrollment baseline. The baseline

condition of the property or area to be

enrolled as defined in § 17.3.

(v) Net conservation benefit. A

description of how the measures are

reasonably expected to improve each

covered species’ existing baseline

condition on the enrolled property and

result in a net conservation benefit as

defined at § 17.3.

(vi) Monitoring. The steps the

applicant will take to monitor and

adaptively manage to ensure the goals

and objectives of the conservation

benefit agreement are met, the

responsibilities of all parties are carried

out, and the conservation benefit

agreement will be properly

implemented.

(vii) Neighboring property owners. A

description of the enrollment process to

provide neighboring property owners

take coverage under paragraph (c)(5)(ii)

of this section, if applicable, or any

other measures developed to protect the

interests of neighboring property

owners.

(viii) Return to baseline condition.

The applicant’s choice between

including authorization to return the

enrolled property to baseline condition

or forgoing that authorization. For

applicants seeking authority to return to

baseline condition, a description of

steps that may be taken to return the

property to baseline condition and

measures to reduce the effects of the

take to the covered species.

(ix) Additional actions. Any other

measures that the Director may require

as necessary or appropriate to meet the

issuance criteria in paragraph (c)(2) of

this section or to avoid conflicts with

other Service conservation efforts.

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (c)(1) of this section, the

Director will decide whether to issue a

permit. The Director will consider the

general issuance criteria in § 13.21(b) of

this subchapter, except for § 13.21(b)(4),

and may issue the permit if the Director

finds:

(i) The take will be incidental to an

otherwise lawful activity or purposeful

if it is necessary for the implementation

of the conservation benefit agreement

and will be in accordance with the

terms of the agreement.

(ii) The implementation of the terms

of the conservation benefit agreement is

reasonably expected to provide a net

conservation benefit to the affected

covered species on the enrolled

property that is included in the permit

and for each individual property within

a programmatic conservation benefit

agreement, based upon: condition of the

species or habitat, effects of

conservation measures, and anticipated

impacts of any permitted take.

(iii) The direct and indirect effects of

any authorized take are unlikely to

appreciably reduce the likelihood of

survival and recovery in the wild of any

listed species.

(iv) Implementation of the terms of

the conservation benefit agreement will

not conflict with any ongoing

conservation or recovery programs for

listed species and the covered species

included in the permit.

(v) The applicant has shown a

capability for and commitment to

implementing all terms of the

conservation benefit agreement.

(3) Permit conditions. In addition to

any applicable general permit

conditions set forth in part 13 of this

subchapter, every permit issued under

this paragraph (c) is subject to the

following special conditions:

(i) The participating property owner

must notify the Service of any transfer

of property subject to a conservation

benefit agreement, at least 30 calendar

days prior to the transfer.

(ii) The permittee must give the

Service reasonable advance notice

(generally at least 30 calendar days) of

when take of any covered species is

expected to occur, to provide the

Service an opportunity to relocate

affected individuals of the species, if

possible and appropriate.

(iii) Any additional requirements or

conditions the Director deems necessary

or appropriate to carry out the purposes

of the permit and the conservation

benefit agreement.

(4) Permit duration and effective date.

The duration of permits issued under

paragraph (c) of this section must be

sufficient to provide a net conservation

benefit to species covered in the

enhancement of survival permit on the

enrolled property.

(i) In determining the duration of a

permit, the Director will consider the

duration of the planned activities, the

uncertainties related to the impacts of

the taking, and the positive and negative

effects of the planned activities covered

by the permit on species covered by the

conservation benefit agreement.

(ii) Permits issued under this

paragraph (c) become effective for listed

covered species upon the date the

permittee signs the enhancement of

survival permit, which must be within

90 calendar days of issuance. For non-

listed covered species, the take

authorized through the permit becomes

effective upon the effective date of the

species’ listing provided the permittee

signed the permit within 90 calendar

days of issuance and has properly

implemented the conservation benefit

agreement since signing the permit.

(5) Assurances. The assurances in

paragraph (c)(5)(i) of this section apply

only to enhancement of survival permits

issued in accordance with paragraph

(c)(2) of this section where the

conservation benefit agreement is being

properly implemented, apply only with

respect to species covered by the permit,

and are effective until the permit

expires. The assurances provided in this

section apply only to enhancement of

survival permits issued after July 19,

1999.

(i) Permittee and participating

property owners. The Director and the

permittee may agree to revise or modify

the conservation measures set forth in a

conservation benefit agreement if the

Director determines that those revisions

or modifications do not change the

Director’s prior determination that the

conservation benefit agreement is

reasonably expected to provide a net

conservation benefit to the covered

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species. However, the Director may not

require additional or different

conservation measures to be undertaken

by a permittee without the consent of

the permittee.

(ii) Neighboring property owners. The

Director may provide take coverage in

the enhancement of survival permit for

owners of properties adjacent to

properties covered by the conservation

benefit agreement through enrollment

procedures contained in the agreement.

The take covered and the method of

providing take coverage will be tailored

to the specific conservation benefit

agreement and needs of adjacent

property owners. One method is to have

the neighboring property owner sign a

certificate that applies the authorization

and assurances in the permit to the

neighboring property owner. The

certificate must:

(A) Establish a baseline condition for

the covered species on their property;

and

(B) Give permission to the Service, the

permittee, or a representative of either

to enter the property, with reasonable

notice, to capture and relocate, salvage,

or implement measures to reduce

anticipated take of the covered species.

(6) Additional actions. Nothing in this

section will be construed to limit or

constrain the Director, any Federal,

State, local, or Tribal government

agency, or a private entity from taking

additional actions, at their own expense,

to protect or conserve a species

included in a conservation benefit

agreement.

(7) Permit amendment or renewal.

Any amendment or renewal of an

existing permit issued under this part is

a new agency decision and is therefore

subject to all current relevant laws and

regulations. The application will be

evaluated based on the current policies

and guidance in effect at the time of the

amendment or renewal decision.

Evaluation of an amendment extends

only to the portion(s) of the

conservation benefit agreement or

permit for which the amendment is

requested. Amendment or renewal

applications must meet issuance criteria

based upon the best available

commercial and scientific data at the

time of the permit decision.

(8) Discontinuance of permit activity.

Notwithstanding the provisions of

§ 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 § 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 § 13.26 of

this subchapter.

(ii) The permit will be deemed

canceled only upon a determination by

the Service that those conservation

measure(s) have been implemented and

the permittee has had ample time to

return the permittee’s property to

baseline condition, if the permit

authorized take associated with return

to baseline and if the permittee chooses

to exercise that authorization.

(iii) Upon surrender of the permit, no

further take will be authorized under

the terms of the surrendered permit, and

the assurances in paragraph (c)(5)(i) of

this section will no longer apply.

(9) Criteria for revocation. The

Director may not revoke a permit issued

under paragraph (c) of this section

except as provided in this paragraph

(c)(9).

(i) The Director may revoke a permit

for any reason set forth in § 13.28(a)(1)

through (4) of this subchapter. The

Director may revoke a permit if

continuation of the covered activity

would either:

(A) Appreciably reduce the likelihood

of survival and recovery in the wild of

any covered species; or

(B) Directly or indirectly alter

designated critical habitat such that the

value of that critical habitat is

appreciably diminished for both the

survival and recovery of a covered

species.

(ii) Before revoking a permit for either

of the reasons in paragraphs (c)(9)(i)(A)

or (B) of this section, the Director, with

the consent of the permittee, will pursue

all appropriate options to avoid permit

revocation. These options may include,

but are not limited to, extending or

modifying the existing permit, capturing

and relocating the species,

compensating the property owner to

forgo the activity, purchasing an

easement or fee simple interest in the

property, or arranging for a third-party

acquisition of an interest in the

property.

(d) Objection to permit issuance. (1)

In regard to any notice of a permit

application published in the Federal

Register, any interested party that

objects to the issuance of a permit, in

whole or in part, may, during the

comment period specified in the notice,

request notification of the final action to

be taken on the application. A separate

written request must be made for each

permit application. Such a request must

specify the Service’s permit application

number and state the reasons why the

interested party believes the applicant

does not meet the issuance criteria

contained in this section and § 13.21 of

this subchapter, or other reasons why

the permit should not be issued.

(2) If the Service decides to issue a

permit despite objections received

pursuant to paragraph (d)(1) of this

section, the Service will, at least 10 days

prior to issuance of the permit, make

reasonable efforts to contact by

telephone, or other expedient means,

any party who has made a request

pursuant to paragraph (d)(1) of this

section and inform that party of the

issuance of the permit. However, the

Service may reduce the time period or

dispense with such notice if the Service

determines that time is of the essence

and that delay in issuance of the permit

would:

(i) Harm the specimen or population

involved; or

(ii) Unduly hinder the actions

authorized under the permit.

(3) The Service will notify any party

filing an objection and request for notice

under paragraph (d)(1) of this section of

the final action taken on the application,

in writing. If the Service has reduced or

dispensed with the notice period

referred to in paragraph (d)(2) of this

section, the Service will include its

reasons in such written notice.

Subpart D—Threatened Wildlife

■10. Amend § 17.32 by:

■a. Revising the section heading and

paragraphs (b) and (c); and

■b. Removing paragraph (d).

The revisions read as follows:

§ 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

§ 17.31 or §§17.40 through 17.48

submits Form 3–200–56, a processing

fee (if applicable), and a conservation

plan. The Service will process the

application when the Director

determines the application is complete.

A conservation plan must include the

following:

(i) Project description. A complete

description of the project, including

purpose, location, timing, and proposed

covered activities.

(ii) Covered species. As defined in

§ 17.3, common and scientific names of

species sought to be covered by the

permit, as well as the number, age, and

sex, if known.

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(iii) Goals and objectives. The

measurable biological goals and

objectives of the conservation plan.

(iv) Anticipated take. Expected

timing, geographic distribution, type

and amount of take, and the likely

impact of take on the species.

(v) Conservation program: That

explains the:

(A) Conservation measures that will

be taken to minimize and mitigate the

impacts of the incidental take for all

covered species commensurate with the

taking;

(B) Roles and responsibilities of all

entities involved in implementation of

the conservation plan;

(C) Changed circumstances and the

planned responses in an adaptive

management plan; and

(D) Procedures for dealing with

unforeseen circumstances.

(vi) Conservation timing. The timing

of mitigation relative to the incidental

take of covered species.

(vii) Permit duration. The rationale for

the requested permit duration.

(viii) Monitoring. Monitoring of the

effectiveness of the mitigation and

minimization measures, progress

towards achieving the biological goals

and objectives, and permit compliance.

The scope of the monitoring program

should be commensurate with the scope

and duration of the conservation

program and the project impacts.

(ix) Funding needs and sources. An

accounting of the costs for properly

implementing the conservation plan and

the sources and methods of funding.

(x) Alternative actions. The

alternative actions to the taking the

applicant considered and the reasons

why such alternatives are not being

used.

(xi) Additional actions. Other

measures that the Director requires as

necessary or appropriate, including

those necessary or appropriate to meet

the issuance criteria or other statutory

responsibilities of the Service.

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (b)(1) of this section, the

Director will decide whether a permit

should be issued. The Director will

consider the general issuance criteria in

§ 13.21(b) of this subchapter, except for

§ 13.21(b)(4). In making a decision, the

Director will consider the anticipated

duration and geographic scope of the

applicant’s planned activities, including

the amount of covered species’ habitat

that is involved and the degree to which

covered species and their habitats are

affected. The Director will issue the

permit if the Director finds:

(i) The taking will be incidental to,

and not the purpose of, carrying out an

otherwise lawful activity.

(ii) The applicant will, to the

maximum extent practicable, minimize

and mitigate the impacts of the taking.

(iii) The applicant will ensure that

adequate funding for the conservation

plan implementation will be provided.

(iv) The applicant has provided

procedures to deal with unforeseen

circumstances.

(v) The taking will not appreciably

reduce the likelihood of the survival

and recovery of the species in the wild.

(vi) The measures and conditions, if

any, required under paragraph (b)(1)(xi)

of this section will be met.

(vii) The applicant has provided any

other assurances the Director requires to

ensure that the conservation plan will

be implemented.

(3) Permit conditions. In addition to

the general conditions set forth in part

13 of this subchapter, every permit

issued under the regulations in this

section will contain terms and

conditions that the Director deems

necessary or appropriate to carry out the

purposes of the permit and the

conservation plan, including, but not

limited to, additional conservation

measures, if any, that may be required

pursuant to paragraph (b)(1)(xi) of this

section, specified deadlines, and

monitoring and reporting requirements

deemed necessary for determining

whether the permittee is complying

with those terms and conditions. The

Director will rely upon existing

reporting requirements to the maximum

extent practicable.

(4) Permit duration and effective date.

In determining the duration of a permit,

the Director will consider the duration

of the activities for which coverage is

requested; the time necessary to fully

minimize and mitigate the impacts of

the taking; and uncertainties related to

the impacts of the taking, success of the

mitigation, and external factors that

could affect the success of the

conservation plan.

(i) Permits issued under this

paragraph (b) become effective for listed

covered species upon the date the

permittee signs the incidental take

permit, which must occur within 90

calendar days of issuance. For non-

listed covered species, the permit’s take

authorization becomes effective upon

the effective date of the species’ listing

provided the permittee signed the

permit within 90 calendar days of

issuance and has properly implemented

the conservation plan.

(ii) The permit expires on the date

indicated on the face of the permit.

(5) Assurances provided to permittee

in case of changed or unforeseen

circumstances. The assurances in this

paragraph (b)(5) apply only to incidental

take permits issued in accordance with

paragraph (b)(2) of this section where

the conservation plan is being properly

implemented and the permittee is

properly complying with the incidental

take permit. The assurances apply only

with respect to species covered by the

conservation plan. These assurances do

not apply to Federal agencies or to

incidental take permits issued prior to

March 25, 1998. The assurances

provided in incidental take permits

issued prior to March 25, 1998, remain

in effect, and those permits will not be

revised.

(i) Changed circumstances provided

for in the plan. If additional

conservation and mitigation measures

are deemed necessary to respond to

changed circumstances and were

provided for in the plan’s operating

conservation program, the permittee

will implement the measures specified

in the plan.

(ii) Changed circumstances not

provided for in the plan. If additional

conservation and mitigation measures

are deemed necessary to respond to

changed circumstances and were not

provided for in the plan’s operating

conservation program, the Director will

not require any conservation and

mitigation measures in addition to those

provided for in the plan without the

consent of the permittee, provided the

Director determines that the plan is

being properly implemented.

(iii) Unforeseen circumstances. (A) In

negotiating a response to unforeseen

circumstances, the Director will not

require the commitment of additional

land, water, or financial compensation

or additional restrictions on the use of

land, water, or other natural resources

beyond the level otherwise agreed upon

for the species covered by the

conservation plan without the consent

of the permittee.

(B) If additional conservation and

mitigation measures are deemed

necessary to respond to unforeseen

circumstances, the Director may require

additional measures of the permittee

where the conservation plan is being

properly implemented, but only if such

measures:

(1) Are limited to modifications

within conserved habitat areas, if any,

or to the conservation plan’s operating

conservation program for the affected

species; and

(2) Maintain the original terms of the

conservation plan to the maximum

extent possible.

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(3) Additional conservation and

mitigation measures will not involve the

commitment of additional land, water,

or financial compensation or additional

restrictions on the use of land, water, or

other natural resources otherwise

available for development or use under

the original terms of the conservation

plan, without the consent of the

permittee.

(C) The Director will have the burden

of demonstrating that unforeseen

circumstances exist, using the best

scientific and commercial data

available. These findings must be

clearly documented and based upon

reliable technical information regarding

the status and habitat requirements of

the affected species. The factors to be

considered by the Director include, but

are not limited to, the following:

(1) Size of the current range of the

affected species;

(2) Percentage of range adversely

affected by the conservation plan;

(3) Percentage of range conserved by

the conservation plan;

(4) Ecological significance of that

portion of the range affected by the

conservation plan;

(5) Level of knowledge about the

affected species and the degree of

specificity of the species’ conservation

program under the conservation plan;

and

(6) Whether failure to adopt

additional conservation measures would

appreciably reduce the likelihood of

survival and recovery of the affected

species in the wild.

(6) Additional actions. Nothing in this

section will be construed to limit or

constrain the Director, any Federal,

State, local, or Tribal government

agency, or a private entity from taking

additional actions, at their own expense,

to protect or conserve a species

included in a conservation plan.

(7) Permit amendment or renewal.

Any amendment or renewal of an

existing permit issued under this part is

a new agency decision and is therefore

subject to all current relevant laws and

regulations. The application will be

evaluated based on the current policies

and guidance in effect at the time of the

amendment or renewal decision.

Evaluation of an amendment extends

only to the portion(s) of the

conservation plan or permit for which

the amendment is requested.

Amendment or renewal applications

must meet issuance criteria based upon

the best available commercial and

scientific data at the time of the permit

decision.

(8) Discontinuance of permit activity.

Notwithstanding the provisions of

§ 13.26 of this subchapter, a permittee

under this paragraph (b) remains

responsible for any outstanding

minimization and mitigation measures

required under the terms of the permit

for take that occurs prior to surrender of

the permit and such minimization and

mitigation measures as may be required

pursuant to the termination provisions

of an implementing agreement,

conservation plan, or permit even after

surrendering the permit to the Service

pursuant to § 13.26 of this subchapter.

(i) The Service will deem the permit

canceled only upon a determination that

such minimization and mitigation

measures have been implemented.

(ii) Upon surrender of the permit, no

further take by the permittee will be

authorized under the terms of the

surrendered permit.

(9) Criteria for revocation. A permit

issued under this paragraph (b) may not

be revoked for any reason except:

(i) The reasons set forth in

§ 13.28(a)(1) through (4) of this

subchapter; or

(ii) If continuation of the permitted

activity would be inconsistent with the

criterion set forth in 16 U.S.C.

1539(a)(2)(B)(iv) and the inconsistency

has not been remedied.

(c)(1) Application requirements for an

enhancement of survival permit

associated with conservation benefit

agreements. The applicant must submit

Form 3–200–54, the processing fee (if

applicable), and a conservation benefit

agreement. The Service will process the

application when the Director

determines the application has met all

statutory and regulatory requirements

for a complete application. A

conservation benefit agreement must

include the following:

(i) Conservation measures. A

complete description of the

conservation measure or measures,

including the location of the activity or

activities to be covered by the permit,

and their intended outcome for the

covered species.

(ii) Covered species. The common and

scientific names of the covered species

for which the applicant will conduct

conservation measures and may need

authorization for take.

(iii) Goals and objectives. The

measurable biological goals and

objectives of the conservation measures

in the agreement.

(iv) Enrollment baseline. The baseline

condition of the property or area to be

enrolled as defined in § 17.3.

(v) Net conservation benefit. A

description of how the measures are

reasonably expected to improve each

covered species’ existing baseline

condition on the enrolled property and

result in a net conservation benefit as

defined at § 17.3.

(vi) Monitoring. The steps the

applicant will take to monitor and

adaptively manage to ensure the goals

and objectives of the conservation

benefit agreement are met, the

responsibilities of all parties are carried

out, and the conservation benefit

agreement will be properly

implemented.

(vii) Neighboring property owners. A

description of the enrollment process to

provide neighboring property owners

take coverage under paragraph (c)(5)(ii)

of this section, if applicable, or any

other measures developed to protect the

interests of neighboring property

owners.

(viii) Return to baseline condition.

The applicant’s choice between

including authorization to return the

enrolled property to baseline condition

or forgoing that authorization. For

applicants seeking authority to return to

baseline condition, a description of

steps that may be taken to return the

property to baseline condition and

measures to reduce the effects of the

take to the covered species.

(ix) Additional actions. Any other

measures that the Director may require

as necessary or appropriate to meet the

issuance criteria in paragraph (c)(2) of

this section or to avoid conflicts with

other Service conservation efforts.

(2) Issuance criteria. Upon receiving

an application completed in accordance

with paragraph (c)(1) of this section, the

Director will decide whether to issue a

permit. The Director will consider the

general issuance criteria in § 13.21(b) of

this subchapter, except for § 13.21(b)(4),

and may issue the permit if the Director

finds:

(i) The take will be incidental to an

otherwise lawful activity or purposeful

if it is necessary for the implementation

of the conservation benefit agreement

and will be in accordance with the

terms of the agreement.

(ii) The implementation of the terms

of the conservation benefit agreement is

reasonably expected to provide a net

conservation benefit to the affected

covered species on the enrolled

property that is included in the permit

and for each individual property within

a programmatic conservation benefit

agreement, based upon: condition of the

species or habitat, effects of

conservation measures, and anticipated

impacts of any permitted take.

(iii) The direct and indirect effects of

any authorized take are unlikely to

appreciably reduce the likelihood of

survival and recovery in the wild of any

listed species.

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(iv) Implementation of the terms of

the conservation benefit agreement will

not conflict with any ongoing

conservation or recovery programs for

listed species and the covered species

included in the permit.

(v) The applicant has shown a

capability for and commitment to

implementing all terms of the

conservation benefit agreement.

(3) Permit conditions. In addition to

any applicable general permit

conditions set forth in part 13 of this

subchapter, every permit issued under

this paragraph (c) is subject to the

following special conditions:

(i) The participating property owner

must notify the Service of any transfer

of property subject to a conservation

benefit agreement, at least 30 calendar

days prior to the transfer.

(ii) The permittee must give the

Service reasonable advance notice

(generally at least 30 calendar days) of

when take of any covered species is

expected to occur, to provide the

Service an opportunity to relocate

affected individuals of the species, if

possible and appropriate.

(iii) Any additional requirements or

conditions the Director deems necessary

or appropriate to carry out the purposes

of the permit and the conservation

benefit agreement.

(4) Permit duration and effective date.

The duration of permits issued under

paragraph (c) of this section must be

sufficient to provide a net conservation

benefit to species covered in the

enhancement of survival permit on the

enrolled property.

(i) In determining the duration of a

permit, the Director will consider the

duration of the planned activities, the

uncertainties related to the impacts of

the taking, and the positive and negative

effects of the planned activities covered

by the permit on species covered by the

conservation benefit agreement.

(ii) Permits issued under this

paragraph (c) become effective for listed

covered species upon the date the

permittee signs the enhancement of

survival permit, which must be within

90 calendar days of issuance. For non-

listed covered species, the take

authorized through the permit becomes

effective upon the effective date of the

species’ listing provided the permittee

signed the permit within 90 calendar

days of issuance and has properly

implemented the conservation benefit

agreement since signing the permit.

(5) Assurances. The assurances in

paragraph (c)(5)(i) of this section apply

only to enhancement of survival permits

issued in accordance with paragraph

(c)(2) of this section where the

conservation benefit agreement is being

properly implemented, apply only with

respect to species covered by the permit,

and are effective until the permit

expires. The assurances provided in this

section apply only to enhancement of

survival permits issued after July 19,

1999.

(i) Permittee and participating

property owners. The Director and the

permittee may agree to revise or modify

the conservation measures set forth in a

conservation benefit agreement if the

Director determines that those revisions

or modifications do not change the

Director’s prior determination that the

conservation benefit agreement is

reasonably expected to provide a net

conservation benefit to the covered

species. However, the Director may not

require additional or different

conservation measures to be undertaken

by a permittee without the consent of

the permittee.

(ii) Neighboring property owners. The

Director may provide take coverage in

the enhancement of survival permit for

owners of properties adjacent to

properties covered by the conservation

benefit agreement through enrollment

procedures contained in the agreement.

The take covered and the method of

providing take coverage will be tailored

to the specific conservation benefit

agreement and needs of adjacent

property owners. One method is to have

the neighboring property owner sign a

certificate that applies the authorization

and assurances in the permit to the

neighboring property owner. The

certificate must:

(A) Establish a baseline condition for

the covered species on their property;

and

(B) Give permission to the Service, the

permittee, or a representative of either

to enter the property, with reasonable

notice, to capture and relocate, salvage,

or implement measures to reduce

anticipated take of the covered species.

(6) Additional actions. Nothing in this

section will be construed to limit or

constrain the Director, any Federal,

State, local, or Tribal government

agency, or a private entity from taking

additional actions, at their own expense,

to protect or conserve a species

included in a conservation benefit

agreement.

(7) Permit amendment or renewal.

Any amendment or renewal of an

existing permit issued under this part is

a new agency decision and is therefore

subject to all current relevant laws and

regulations. The application will be

evaluated based on the current policies

and guidance in effect at the time of the

amendment or renewal decision.

Evaluation of an amendment extends

only to the portion(s) of the

conservation benefit agreement or

permit for the which the amendment is

requested. Amendment or renewal

applications must meet issuance criteria

based upon the best available

commercial and scientific data at the

time of the permit decision.

(8) Discontinuance of permit activity.

Notwithstanding the provisions of

§ 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 § 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 § 13.26 of

this subchapter.

(ii) The permit will be deemed

canceled only upon a determination by

the Service that those conservation

measure(s) have been implemented and

the permittee has had ample time to

return the permittee’s property to

baseline condition, if the permit

authorized take associated with return

to baseline and if the permittee chooses

to exercise that authorization.

(iii) Upon surrender of the permit, no

further take will be authorized under

the terms of the surrendered permit, and

the assurances in paragraph (c)(5)(i) of

this section will no longer apply.

(9) Criteria for revocation. The

Director may not revoke a permit issued

under this paragraph (c) except as

provided in this paragraph (c)(9).

(i) The Director may revoke a permit

for any reason set forth in § 13.28(a)(1)

through (4) of this subchapter. The

Director may revoke a permit if

continuation of the covered activity

would either:

(A) Appreciably reduce the likelihood

of survival and recovery in the wild of

any covered species; or

(B) Directly or indirectly alter

designated critical habitat such that the

value of that critical habitat is

appreciably diminished for both the

survival and recovery of a covered

species.

(ii) Before revoking a permit for either

of the reasons in paragraphs (c)(9)(i)(A)

or (B) of this section, the Director, with

the consent of the permittee, will pursue

all appropriate options to avoid permit

revocation. These options may include,

but are not limited to, extending or

modifying the existing permit, capturing

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and relocating the species,

compensating the property owner to

forgo the activity, purchasing an

easement or fee simple interest in the

property, or arranging for a third-party acquisition of an interest in the

property.

Shannon A. Estenoz,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 2024–07602 Filed 4–11–24; 8:45 am]

BILLING CODE 4333–15–P

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Published date	12 April 2024
Record Number	2024-07602
Citation	89 FR 26070
Court	Fish And Wildlife Service
Section	Rules and Regulations

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

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