[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29091-29098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14082]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
RIN 1018-AE24
No Surprises Policy
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Proposed rule.
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SUMMARY: This proposed rule will codify the substance of the Endangered
Species Act (ESA) ``No Surprises'' policy issued by the Fish and
Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
in 1994 and included in the joint FWS and NMFS Endangered Species
Habitat Conservation Planning Handbook issued in November 1996 (61 FR
63854). The No Surprises policy provides regulatory assurances to the
holder of an incidental take permit issued under section 10(a) of the
ESA that no additional land use restrictions or financial compensation
will be required of the permit holder with respect to species
adequately covered by the permit, even if unforeseen circumstances
arise after the permit is issued indicating that additional mitigation
is needed for a given species covered by a permit. The proposed rule
contains proposed revisions to parts 17 (FWS) and 222 (NMFS) of Title
50 of the Code of Federal Regulations necessary to implement the
substance of the No Surprises policy. The proposed rule is published in
response to the March 21, 1997, settlement agreement in Spirit of the
Sage v. Babbitt, No. 1:96CV02503 (SS) (D. D.C.).
DATES: Comments on the proposed rule must be received by July 28, 1997.
ADDRESSES: For 50 CFR part 17, send any comments or materials
concerning the proposed changes to the Chief, Division of Endangered
Species, U.S. Fish and Wildlife Service, 452 ARLSQ, Washington, D.C.,
20240 (Telephone 703/358-2171, Facsimile 703/358-1735). You may examine
comments and materials received during normal business hours in room
452, Arlington Square Building, 4401 North Fairfax Drive, Arlington,
Virginia. For 50 CFR part 222, send any comments to Nancy Chu, Chief,
Endangered Species Division, National Marine Fisheries Service, Office
of Protected Resources, 1315 East-West Highway, Silver Spring, MD,
20910 (Telephone (301/713-1401). You must make an appointment to
examine these materials.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species (Telephone (703/358-2171); or Nancy Chu, National
Marine Fisheries Service, Chief, Endangered Species Division (Telephone
(301) 713-1401).
SUPPLEMENTARY INFORMATION: The Services firmly believe that they have
had sufficient authority under the Endangered Species Act (ESA) to
issue Habitat Conservation Plan (HCP) permits with No Surprises
assurances and continue to believe in the validity of those permits.
The Services also believe that the current process and those permits
issued in the past with the No Surprises assurances are legally
adequate and continue to assert the Services' authority to issue
individual HCP permits with the No Surprises assurances. Nevertheless,
the Services recognize the benefits of permanently codifying the No
Surprises policy as a rule in 50 CFR, as well as the value of
soliciting additional comments on the policy itself. Therefore, the
Services believed it served their purposes to settle the Spirit of the
Sage Council v. Babbitt, No. 1:96CV02503 (SS) (D. D.C.), lawsuit, which
challenged the procedures under which the No Surprises policy was
adopted and under which subsequent HCP permits were issued, by agreeing
to submit the No Surprises Policy to further public comment and to
consider public comment in drafting a final No Surprises rule.
These proposed regulations apply to the FWS and the NMFS
(collectively referred to as the Services). The background information
regarding the proposed rule is the same for the Services. The proposed
rule is, however, presented in two parts because the Services have
separate regulations for implementing the section 10 permitting
[[Page 29092]]
process. The first part is for the proposed changes in the FWS's
regulations found at 50 CFR 17.22 and 17.32, and the second part is for
the proposed changes in NMFS's regulations found at 50 CFR 222.
Background
Section 9 of the ESA generally prohibits the ``take'' of species
listed under the ESA as endangered. Pursuant to the broad grant of
regulatory authority over threatened species in section 4(d) of the
ESA, FWS and NMFS regulations generally prohibit take of species listed
as threatened. See, e.g., 50 CFR 17.31 and 17.21 (FWS). Section 3(18)
of the ESA defines take to mean ``to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.'' FWS regulations (50 CFR 17.3) define ``harm'' to
include ``significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.''
Section 10 of the ESA as originally enacted contained provisions
allowing the issuance of permits authorizing the taking of listed
species under very limited circumstances for non-Federal entities.
However, both the government and the development community became
concerned that these permitting provisions were not sufficiently
flexible to address situations in which a property owner's otherwise
lawful activities might result in limited incidental take of a listed
species even if the person were willing to plan their activities
carefully to be consistent with the conservation of the species. As a
result, Congress included in the ESA Amendments of 1982 amendments to
section 10(a) to allow the FWS and NMFS to issue permits authorizing
the incidental take of listed species in the course of otherwise lawful
activities, provided activities are conducted according to a
conservation plan (or habitat conservation plan or HCP) designed to
further the long-term conservation of the species and to avoid jeopardy
to the continued existence of the species. In doing so, Congress
indicated it was acting to ``address the concerns of private landowners
who are faced with having otherwise lawful actions not requiring
Federal permits prevented by section 9 prohibitions against taking* * *
`` H.R. Rep. No. 835, 97th Cong., 2d Sess. 29 (1982) (hereafter ``Conf.
Report''). Congress modeled the 1982 HCP amendments after the
conservation plan developed by private landowners and local governments
to protect the habitat of two listed butterflies on San Bruno Mountain
in San Mateo County, while allowing development activities to proceed.
Congress recognized in enacting the section 10 HCP amendments
that: significant development projects often take many years to
complete and permits applicants may need long-term permits. In this
situation, and in order to provide sufficient incentives for the
private sector to participate in the development of such long-term
conservation plans, plans which may involve the expenditure of
hundreds of thousands if not millions of dollars, adequate
assurances must be made to the financial and development communities
that a section 10(a) permit can be made available for the life of
the project. Thus, the Secretary should have the discretion to issue
section 10(a) permits that run for periods significantly longer than
are commonly provided [for other types of permits]. (Conf. Report at
31).
Congress also recognized that long term HCP permits would present
unique issues that would have to be addressed if the permits were to
function properly to protect the interests of both the species involved
and the development community. For instance, Congress realized that
``circumstances and information may change over time and that the
original [habitat conservation] plan might need to be revised. To
address this situation the Committee expects that any plan approved for
a long-term permit will contain a procedure by which the parties will
deal with unforeseen circumstances.'' (Conf. Report at 31). More
importantly, Congress recognized that non-Federal property owners
seeking HCP permits would need to have economic and regulatory
certainty regarding the overall cost of species mitigation over the
life of the permit. As stated in the Conference Report on the 1982 ESA
amendments:
The Committee intends that the Secretary may utilize this
provision to approve conservation plans which provide long-term
commitments regarding the conservation of listed as well as unlisted
species and long-term assurances to the proponent of the
conservation plan that the terms of the plan will be adhered to and
that further mitigation requirements will only be imposed in
accordance with the terms of the plan. In the event that an unlisted
species addressed in the approved conservation plan is subsequently
listed pursuant to the Act, no further mitigation requirements
should be imposed if the conservation plan addressed the
conservation of the species and its habitat as if the species were
listed pursuant to the Act. (Conf. Report at 30 and 50 FR 39681-
39691 (Sept. 30, 1985)).
Congress thus allowed the Federal government to provide assurances
to non-Federal property owners through the section 10 incidental take
permit process. Non-Federal property owners would have economic and
regulatory certainty regarding the overall cost of species mitigation,
provided that the conservation plan adequately provided for the
affected species in the first instance, the permittee was complying in
good faith with the terms and conditions of the permit and the HCP, and
that the HCP was properly functioning.
In the proposed rule to implement the ESA's incidental take permit
provisions, the FWS expressly discussed Congress' statement that the
section 10 permitting process should be used to address multiple
species and unlisted species in exchange for regulatory assurances. (48
FR 31417 (July 8, 1983)). When the final incidental take permit rule
was published in 1985, the FWS responded to comments on the
consideration of unlisted species in HCPs by referring to the same
statement of Congressional intent and by reiterating that HCP
permittees have the option of addressing unlisted species in exchange
for long-term assurances, and that additional mitigation would only be
required in accordance with the terms and conditions of the original
HCP (58 FR 39681, 39683 (September 30, 1985)). The No Surprises Policy
issued on August 11, 1994, cites and relies upon the same statement of
the Congressional intent.
After the No Surprises policy was issued, it was the subject of a
public comment process when it was released as a key component of the
draft 1994 Habitat Conservation Planning Handbook (59 FR 65782,
December 21, 1994). The No Surprises policy was included in slightly
revised form in the final 1996 Habitat Conservation Planning Handbook
(61 FR 63854, December 2, 1996), and currently is being implemented. In
addition to this opportunity for public comment on the No Surprises
policy in general, the application of the policy and its assurances has
been and continues to be subject to an opportunity for public comment
on each proposed HCP permit under section 10(c) of the ESA. In
addition, because the act of issuing a HCP permit is a Federal
authorization subject to section 7(a)(2) of the ESA, the Services must
consult under section 7 on each proposed HCP permit.
The regulatory and economic assurances provided to permittees
through this proposed rule is limited to the HCP permitting process.
Under the proposed rule, these assurances would continue to be
incorporated into the section 10 HCP permit the Services issue to a
permittee.
[[Page 29093]]
The FWS administers a variety of conservation laws that authorize
the issuance of certain permits for otherwise prohibited activities.
Part 13 of Title 50 of the Code of Federal Regulations consolidates the
administration of various FWS permitting programs. Part 13 provides a
uniform framework of general administrative conditions and procedures
that govern the application, processing, and issuance of all FWS
permits. In addition to Part 13, the FWS has added several more
specific wildlife regulatory programs to Title 50 of the Code of
Federal Regulations. For example, the FWS added Part 18 to implement
the Marine Mammal Protection Act and modified and expanded Part 17 to
implement the ESA. These parts contained their own specific permitting
requirements in addition to the general permitting provisions of Part
13. This proposed rule would permanently codify the No Surprises policy
through amendments to 50 CFR Part 17 (for FWS) and 50 CFR Part 222 (for
NMFS).
Description/Overview of Proposed No Surprises Rule
The information presented below briefly describes the No Surprises
policy and this proposed rule.
To address the problem of maintaining regulatory assurances and
providing regulatory certainty in exchange for conservation
commitments, the FWS and the NMFS jointly established a ``No
Surprises'' policy for HCPs on August 11, 1994. The No Surprises policy
set forth a clear commitment by the FWS and the NMFS that, to the
extent consistent with the requirements of the ESA and other Federal
laws, the government will honor its agreements under a negotiated and
approved HCP for which the permittee is in good faith implementing the
HCP's terms and conditions. The specific nature of these provisions
will vary among HCPs depending upon individual habitat and species
needs.
The No Surprises policy and this proposed rule provide certainty
for non-Federal property owners in ESA HCP planning through the
following assurances:
In negotiating ``unforeseen circumstances'' provisions
for HCPs, the Services will not require the commitment of additional
land or financial compensation beyond the level of mitigation which
was otherwise adequately provided for a species under the terms of a
properly functioning HCP. Moreover, the Services will not seek any
other form of additional mitigation from an HCP permittee except
under unforeseen circumstances.
This means that if unforeseen circumstances occur during the life
of an HCP, the Services will not require additional lands or property
interests, additional funds, or additional restrictions on lands or
other natural resources released under an HCP for development or use
from any permittee who, in good faith, is adequately implementing or
has fully implemented their commitments under an approved HCP. Once an
HCP permit has been issued and its terms are being complied with, the
permittee may remain secure regarding the agreed upon cost of
mitigation, because no additional mitigation land or property
interests, funding, or land use restrictions will be requested by the
issuing Service. The permittee would not be responsible for any other
forms of additional mitigation, unrelated to the categories noted in
the previous sentence, except where unforeseen circumstances exist.
The legislative history of the 1982 ESA amendments noted above in
the ``Background'' section illustrates the two primary goals of the HCP
program: (1) adequately minimizing and mitigating for the incidental
take of listed species; and (2) providing regulatory assurances to
section 10 permittees that the terms of an approved HCP will not change
over time, or that necessary changes will be minimized to the maximum
extent possible, and will be mutually agreed to by the applicant. How
to reconcile these objectives remains one of the central challenges of
the HCP program.
``Unforeseen circumstances'' has been broadly defined to include a
variety of changing circumstances that may occur over the life of an
ongoing HCP. However, it is important to distinguish between
``unforeseen circumstances'' and ``changed circumstances.'' ``Changed
circumstances'' are not uncommon during the course of an HCP and can
reasonably be anticipated and planned for (e.g., the listing of new
species, modifications in the project or activity as described in the
original HCP, or modifications in the HCP's monitoring program).
``Unforeseen circumstances,'' however, means changes in circumstances
surrounding an HCP that were not, or could not, be anticipated by HCP
participants and the Services at the time of the HCP's negotiation and
development and that result in a substantial and adverse change in the
status of a covered species.
With respect to anticipated and possible changed circumstances, the
HCP should discuss measures developed by the applicant and the Services
to meet such changes over time, possibly by incorporating adaptive
management measures for covered species in the HCP. HCP planners should
identify potential problems in advance and identify specific strategies
or protocols in the HCP for dealing with them, so that adjustments can
be made as necessary without having to amend the HCP.
The ``Unforeseen Circumstances'' section of the HCP should be more
limited. This section should discuss how to deal in the future with
those changes in the circumstances surrounding the HCP that cannot be
anticipated by HCP negotiators. While HCP permittees will not be
responsible for additional mitigation measures if unforeseen
circumstances arise, other methods of responding to the needs of the
affected species, such as governmental action and voluntary
conservation measures by the permittee, remain available to assure the
requirements of the ESA are satisfied.
Consequently, the No Surprises policy and this proposed rule also
provide that:
If additional mitigation measures are subsequently
deemed necessary to provide for the conservation of a species that
was otherwise adequately covered under the terms of a properly
functioning HCP, the obligation for such measures will not rest with
the HCP permittee.
This means that in cases where the status of a species addressed
under an HCP unexpectedly worsens, the primary obligation for
implementing additional conservation measures would be borne by the
Federal government, other government agencies, private conservation
organizations, or other private landowners who have not yet developed
an HCP.
``Adequately covered'' under an HCP for listed species refers to
any species addressed in an HCP that has satisfied the permit issuance
criteria under section 10(a)(2)(B) of the ESA. For unlisted species,
the term refers to any species that is addressed in an HCP as if it
were listed pursuant to section 4 of the ESA, and is covered by HCP
conditions that would satisfy permit issuance criteria under section
10(a)(2)(B) of the ESA if the species were actually listed. No
Surprises assurances apply only to species that are ``adequately
covered'' in the HCP. Species should not be included in the HCP permit
if data gaps or insufficient information makes it impossible to craft
conservation/mitigation measures for them. In many cases, however, data
gaps can be overcome through the inclusion of adaptive management
clauses in the HCP.
[[Page 29094]]
If unforeseen circumstances warrant the requirement of
additional mitigation from an HCP permittee who is in compliance
with the HCP's obligations, such mitigation will maintain the
original terms of the HCP to the maximum extent possible. Further,
any such changes will be limited to modifications within Conserved
Habitat areas or to the HCP's operating conservation program for the
affected species. Additional mitigation requirements will not
involve the payment of additional compensation or apply to parcels
of land available for development or land management under the
original terms of the HCP without the consent of the HCP permittee.
This means that if unforeseen circumstances are found to exist, the
Services will consider additional mitigation measures. However, such
measures must be as close as possible to the terms of the original HCP
and must be limited to modifications within any Conserved Habitat area
or to adjustments in lands that are already set aside by the HCP in the
HCP's operating conservation program. Any such adjustments or
modifications will not include requirements for additional land
protection, payment of additional funds, or apply to lands otherwise
available for development or use under the HCP, unless the permittee
consents to such additional measures. ``Modifications within Conserved
Habitat areas or to the HCP's operating conservation program'' means
changes to plan areas explicitly designated for habitat protection or
other conservation uses under the HCP, or changes that redirect or
increase the intensity, range, or effectiveness of the HCP's operating
program, provided that any such changes do not impose new restrictions
or financial compensation on the permittee's activities. Thus, if an
HCP conservation program originally included a mixture of predator
depredation control and captive breeding, but subsequent research or
information demonstrated that one of these was considerably more
effective that the other, the Services would be able to request an
adjustment in the proportionate use of these tools, provided that such
an adjustment did not increase the overall costs to the HCP permittee.
The policy and this proposed rule also set out criteria for
determining whether and when unforeseen circumstances arise.
The Services will have the burden of demonstrating that
such unforeseen circumstances exist using the best scientific and
commercial data available. Their findings must clearly be documented
and based upon reliable technical information regarding the status
and habitat requirements of the affected species.
In deciding whether any unforeseen circumstances exist
which might warrant requiring additional mitigation from an HCP
permittee, the Services will consider, but not be limited to, the
following factors: (a) size of the current range of affected
species; (b) percentage of range adversely affected by the HCP; (c)
percentage of range conserved by the HCP; (d) ecological
significance of that portion of the range affected by the HCP; (e)
level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the HCP; (f)
whether the HCP was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria
for assessing the biological success of the HCP; and (g) whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected
species in the wild.
The first of these two criteria, on the burden of proof, is self-
explanatory. The second identifies some factors to be considered by the
Services in determining whether biologically significant unforeseen
circumstances exist. Generally, the inquiry would focus on the level of
biological peril to the affected species covered by the HCP and the
degree to which the welfare of those species is tied to a particular
HCP. For example, if a species is declining rapidly, and the HCP
encompasses an ecologically insignificant portion of the species'
range, then unforeseen circumstances typically would not exist because
the overall effect of the HCP upon the species would be negligible or
insignificant. Conversely, if a species is declining rapidly and if the
HCP encompasses a majority of the species' range, then unforeseen
circumstances probably would exist.
The policy and this proposed rule provide additional assurances
where an HCP is designed to provide an overall net benefit to the
covered species.
The Services will not seek additional mitigation for a
species from an HCP permittee where the terms of a properly
functioning HCP agreement were designed to provide an overall net
benefit for the species and contained measurable criteria for the
biological success of the HCP which have been or are being met.
This provision means that the Services will not attempt to impose
additional mitigation measures of any type where the HCP meets these
standards. This provision is intended to encourage HCP applicants to
develop HCPs that provide an overall net benefit to affected species.
However, it does not mean that an HCP must in fact have achieved a net
benefit to the affected species in order for the ``no additional
mitigation'' provision to apply. Rather, it will be sufficient if the
HCP agreement contains a clearly articulated set of criteria for
achieving a net benefit and an adequate monitoring program for
measuring progress toward the net benefit goal, and the HCP has been
and continues to meet the criteria.
For listed species, an overall net benefit is defined as the
cumulative results of the management activities identified in an HCP
that provide for an increase in a species' population and/or the
enhancement, restoration or maintenance of covered species' suitable
habitat within the HCP planning area, taking into account the length of
the permit and the incidental taking allowed by the permit. In
addition, the benefit must be sufficient to contribute to the recovery
of the covered species if undertaken by other property owners similarly
situated. For unlisted species, overall net benefit is defined as
management activities identified in an HCP that would remove the
threats to the species and eliminate the need to list the covered
species, again, if undertaken on a broader scale by other property
owners similarly situated.
A ``properly functioning HCP'' means any HCP whose commitments or
provisions have been or are being fully implemented by the permittee
and in which the permittee is in full compliance with the terms and
conditions of the permit.
Nothing in this policy/rule will be construed to limit
or constrain the Services or any other governmental agency from
taking additional actions at its own expense to protect or conserve
a species included in an HCP.
This means the Services can intercede on behalf of a species at
their own expense at any time and be consistent with the assurances
provided the permittee under this policy and the permit. Neither is
there anything in the No Surprises policy or this proposed rule that
prevents the Services from requesting a permittee to voluntarily
undertake additional mitigation on behalf of affected species, though
of course the permittee is under no obligation to comply.
In fact, FWS and NMFS have a wide array of authorities and
resources that can be utilized to provide additional protection for
threatened or endangered species included in an HCP. In meeting their
commitment under the No Surprises policy and this proposed rule
(consistent with their obligations under the ESA), it is extremely
unlikely that the Services would have to resort to protective or
conservation action requiring new appropriations of funds by Congress.
In such an unlikely event, such actions would necessarily be
[[Page 29095]]
subject to the requirements of the Anti-Deficiency Act and the
availability of funds appropriated by the Congress.
Permit-Shield Provision
In addition to proposing to codify as a rule the substance of the
existing No Surprises policy, the Services propose to add a new permit-
shield provision. See Secs. 17.22(b)(6), 17.32(b)(6), and 222.22(h).
The purpose of the permit-shield provision is to create a presumption
that a holder of an incidental take permit is operating in compliance
with sections 9 and 10 of the ESA when complying with a valid
incidental take permit, regardless of changes in circumstances and
regardless of whether the incidental take permit was approved under
either the No Surprises policy or this proposed rule. Although the
permit-shield provision and the No Surprises proposed rule (if it did
not have a permit-shield component) have the same objective--
reliability as an incentive for habitat conservation--they have
different emphases and use different methods. No Surprises allows
applicants and the Services to reach a binding agreement on the amount
of habitat conservation and mitigation that will be required over the
life of the permit. The permit-shield provision would act to prevent or
discourage subsequent enforcement actions where the permit holder is
acting in compliance with the requirements of the permit.
The permit-shield rule would limit the Services' prosecutorial
discretion under section 11(e) of the ESA, 16 U.S.C. 1540(e), so as to
protect the assurances given in incidental take permits regardless of
changed circumstances and regardless of whether the assurances were
approved under a formal No Surprises rule or policy.
Required Determinations
A major purpose of this proposed rule is to provide section
10(a)(1)(B) permittees regulatory assurances through the issuance of
the permit. From the Federal government's perspective, implementation
of this rule would not result in additional expenditures to the
permittee that are above and beyond that already required through the
section 10(a)(1)(B) permitting process. There are, however, benefits
derived from HCPs for both the non-Federal entities and species covered
by the HCPs. HCPs are mechanisms that allow non-Federal entities to
continue with economic development, while conserving those species
covered by the permit. Benefits to the covered species include
conserving lands and waters that the species depends on, decreasing
habitat fragmentation, removing threats to candidate, proposed, or
other unlisted species, and advancing the recovery of some listed
species. Non-Federal program participants are then provided regulatory
assurances as a result of the applying for an incidental take permit
under section 10(a)(1)(B) of the ESA for those species that are
adequately covered by the permit, if the HCP is functioning properly.
The Services have determined that the proposed rule would not result in
significant costs of implementation to non-Federal program
participants.
Information Collection/Paperwork Reduction Act
No significant effects are expected on non-Federal cooperators
exercising their option to enter into the HCP planning program because
there is no additional information required during the HCP development
or processing phase to provide these regulatory assurances.
The Services have examined this proposed rule under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirement
associated with incidental take permits other than those already
approved under the Paperwork Reduction Act of 1995 for incidental take
permits with OMB approval #1018-0022 which expires July 31, 1997. The
Service requested renewal of the OMB approval and in accordance with 5
CFR 1320 will not continue to collect the information, if the approval
has expired, until OMB approval has been obtained.
Economic Analysis
This proposed rule was not subject to review by the Office of
Management and Budget under Executive Order 12866. The Services have
determined that there will be no additional costs placed on the non-
Federal entity associated with this proposed regulation. The No
Surprises Policy was drafted in 1994, went through a public comment
period as part of the draft 1994 Habitat Conservation Planning Handbook
(59 FR 65782, December 21, 1994), was included in the final 1996
Habitat Conservation Planning Handbook (61 FR 63854, December 2, 1996),
and currently is being implemented. The assurances provided to
permittees through these proposed rules apply to the HCP permitting
process, and the Services have determined that there will be no
additional information required of non-Federal entities through the HCP
permitting process to provide these assurances to the permittee.
The Assistant Secretary for the Department of Interior certified to
the Chief Counsel for Advocacy of the Small Business that a review
under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has
revealed that this rulemaking would not have a significant effect on a
substantial number of small entities, which includes businesses,
organizations, or governmental jurisdictions. This proposed rule will
provide non-Federal program participants regulatory assurances as a
result of the applying for an incidental take permit under section
10(a)(1)(B) of the Act. No significant effects are expected on non-
Federal cooperators exercising their option to enter into the HCP
planning program because there will be no additional information
required through the HCP process to provide these regulatory
assurances. Therefore, this rule would have a minimal effect on such
entities. The National Marine Fisheries Service has also reviewed this
rule under the Regulatory Flexibility Act of 1980 and concurs with the
above certification.
The implementation of the No Surprises policy does not require any
additional data not already required by the HCP process. Regulatory
assurances are provided to the permittee if the HCP is functioning
properly, and if all the terms and conditions of the HCP, permit, or
Implementing Agreement are all being met. The underlying economic basis
of comparing the ``with and without'' the proposed rule was used to
determine if there existed any potential economic effects from
implementing this policy. Since the rule is being implemented with
existing data, there are no incremental costs being imposed on non-
federal landowners. The benefits generated by this rule are being
shared by the Services (i.e., less habitat fragmentation, habitat
management, and protection for covered species) and by non-federal
landowners (i.e., assurances that approved HCPs will allow for future
economic uses of private land without further mitigation).
There are no data to determine if there are any effects on
businesses from this rule. If such effects occur they are more likely
to be benefits to landowners than costs. Until specific HCPs are
approved it is not possible to determine effects on commodity prices,
competition or jobs. However, any economic effects are likely to be
benefits. There is a positive effect expected on the environment as
species habitat is protected. No effect on public health and safety is
expected from this rule. Therefore, this rule most likely would not
have a significant effect on a substantial number of small entities.
[[Page 29096]]
The Services have determined and certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et. seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities. No additional information will
be required from a non-Federal entity though the HCP.
Civil Justice Reform
The Departments have determined that these proposed regulations
meet the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
National Environmental Policy Act
The Department has determined that the issuance of the proposed
rule is categorically excluded under the Department of Interior's NEPA
procedures in 516 DM 2, Appendix 1.10. NMFS concurs with the Department
of Interior's determination that the issuance of the proposed rule
qualifies for a categorical exclusion and falls within the categorical
exclusion criteria in NOAA 216-3 Administrative Order, Environmental
Review Procedure.
Public Comments Solicited
The Services submit this proposed rule for public comment.
Particularly, comments are sought on:
(1) The applicability of the No Surprises assurance to the HCP
process in general;
(2) Alternative means, if any, for providing the No Surprises
assurances to property owners who apply for an HCP permit;
(3) The applicability of the No Surprises assurances to species
adequately covered by a section 10(a)(1)(B) permit;
(4) The permit-shield provision; and
(5) The proposed regulatory changes to 50 CFR Parts 17 and 222.
The Services will take into consideration the comments and any
additional information received by the Services by July 28, 1997, and
such will be considered in the development of a final rule.
List of Subjects
50 CFR Part 17
Endangered and threatened species, Export, Import, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 222
Administrative practices and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
For the reasons set out in the preamble, the Services propose to
amend title 50, chapter I, subchapter B; and to amend title 50, chapter
II, subchapter C of the Code of Federal Regulations, as set forth
below:
PART 17--[AMENDED]
Subpart C--Endangered Wildlife
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. New paragraphs (b)(5) and (b)(6) are added to Sec. 17.22 to read
as follows:
Sec. 17.22 Permits for scientific purposes, enhancement of propagation
or survival, or for incidental taking.
* * * * *
(b) * * *
(5) Permit assurances. (i) Permit assurances will apply to
incidental take permits that are issued in accordance with paragraph
(b)(2) of this section for those species that are adequately provided
for under properly functioning conservation plans. Such assurances will
apply to those permittees who in good faith have complied with the
required terms and conditions of the permit and the conservation plan.
(ii) In negotiating unforeseen circumstances provisions for
conservation plans, the Director will not require the commitment of
additional land, property interests, or financial compensation beyond
the level of mitigation which was otherwise adequately provided for a
species under the terms of a properly functioning conservation plan.
Moreover, the Director will not seek any other form of additional
mitigation from a permittee except under unforeseen circumstances.
(iii) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(iv) If unforeseen circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas, if any, or to the conservation plan's
operating conservation program for the affected species. Additional
mitigation requirements will not involve the payment of additional
compensation or apply to parcels of land or property interests
available for development or land management under the original terms
of the conservation plan without the consent of the permittee.
(v) The following criteria must be used for determining whether and
when unforeseen circumstances arise, where the government could request
review of certain aspects of the conservation plan's program.
(A) The Director will have the burden of demonstrating that such
unforeseen circumstances exist, using the best scientific and
commercial data available. The Director's findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species.
(B) In deciding whether any unforeseen circumstances exist which
might warrant requiring additional mitigation from a permittee, the
Director will consider, but not be limited to, the following factors:
size of the current range of affected species; percentage of range
adversely affected by the conservation plan; percentage of range
conserved by the conservation plan; ecological significance of that
portion of the range affected by the conservation plan; level of
knowledge about the affected species and the degree of specificity of
the species' conservation program under the conservation plan; whether
the conservation plan was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria for
assessing the biological success of the conservation plan; and whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected species
in the wild.
(vi) The Director will not seek additional mitigation for a species
from a permittee where the terms of a properly functioning conservation
plan agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(vii) Nothing in this rule will be construed to limit or constrain
the Director or any other governmental agency from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(6) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the
[[Page 29097]]
requirements of sections 9 and 10 of the ESA with respect to the
species covered by the permit regardless of changes in circumstances,
policy, and regulation, unless a change in statute or court order
specifically requires that assurances given in the original permit be
modified or withdrawn.
* * * * *
Subpart D--Threatened Wildlife [Amended]
3. New paragraphs (b)(5) and (b)(6) are added to Sec. 17.32 to read
as follows:
Sec. 17.32 Permits--General.
* * * * *
(b)* * *
(5) Permit assurances. (i) Permit assurances will apply to
incidental take permits that are issued in accordance with paragraph
(b)(2) of this section for those species that are adequately provided
for under properly functioning conservation plans. Such assurances will
apply to those permittees who in good faith have complied with the
required terms and conditions of the permit and the conservation plan.
(ii) In negotiating unforeseen circumstances provisions for
conservation plans, the Director will not require the commitment of
additional land, or financial compensation beyond the level of
mitigation which was otherwise adequately provided for a species under
the terms of a properly functioning conservation plan. Moreover, the
Director will not seek any other form of additional mitigation from a
permittee except under unforeseen circumstances.
(iii) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(iv) If unforeseen circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas, if any, or to the conservation plan's
operating conservation program for the affected species. Additional
mitigation requirements will not involve the payment of additional
compensation or apply to parcels of land, or property interests
available for development or land management under the original terms
of the conservation plan without the consent of the permittee.
(v) The following criteria must be used for determining whether and
when unforeseen circumstances arise, where the government could request
review of certain aspects of the conservation plan's program.
(A) The Director will have the burden of demonstrating that such
unforeseen circumstances exist, using the best scientific and
commercial data available. The Director's findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species.
(B) In deciding whether any unforeseen circumstances exist which
might warrant requiring additional mitigation from a permittee, the
Director will consider, but not be limited to, the following factors:
size of the current range of affected species; percentage of range
adversely affected by the conservation plan; percentage of range
conserved by the conservation plan; ecological significance of that
portion of the range affected by the conservation plan; level of
knowledge about the affected species and the degree of specificity of
the species' conservation program under the conservation plan; whether
the conservation plan was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria for
assessing the biological success of the conservation plan; and whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected species
in the wild.
(vi) The Director will not seek additional mitigation for a species
from a permittee where the terms of a properly functioning conservation
plan agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(vii) Nothing in this rule will be construed to limit or constrain
the Director or any other governmental agency from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(6) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the requirements of sections 9
and 10 of the ESA with respect to the species covered by the permit
regardless of changes in circumstances, policy, and regulation, unless
a change in statute or court order specifically requires that
assurances given in the original permit be modified or withdrawn.
* * * * *
PART 222--[AMENDED]
Subpart C--Endangered Fish or Wildlife Permits
4. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under
16 U.S.C. 1361 et seq.
5. New paragraphs (g) and (h) are added to Sec. 222.22 to read as
follows:
Sec. 222.22 Permits for the incidental taking of endangered species.
* * * * *
(g) Permit assurances. (1) Permit assurances will only apply to
permits for Habitat Conservation Plans that are issued in accordance
with paragraph (c) of this section for those species that are
adequately provided for under properly functioning conservation plans.
Such assurances will apply to those permittees who in good faith have
complied with the required terms and conditions of the permit and the
conservation plan.
(2) In negotiating the unforeseen circumstances provisions for
conservation plans, NMFS will not require the commitment of additional
land, water, or financial compensation beyond the level of mitigation
that was otherwise adequately provided for a species under the terms of
a properly functioning conservation plan. Moreover, NMFS will not seek
any other form of additional mitigation from a permittee except under
extraordinary circumstances.
(3) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(4) If extraordinary circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas or to the conservation plan's operating
conservation program for the affected species. Additional mitigation
requirements will not involve the payment of additional compensation or
apply to parcels of land available for development or land/water
management
[[Page 29098]]
under the original terms of the conservation plan without the consent
of the permittee:
(5) The following criteria must be used for determining whether and
when extraordinary circumstances arise, where the government could
request review of certain aspects of the conservation plan's program.
(i) NMFS will have the burden of demonstrating that such
extraordinary circumstances exist, using the best scientific and
commercial data available. Their findings must be clearly documented
and based upon reliable technical information regarding the status and
habitat requirements of the affected species.
(ii) In deciding whether any extraordinary circumstances exist
which might warrant requiring additional mitigation from a permittee,
NMFS will consider, but not be limited to, the following factors:
(A) Size of the current range of affected species;
(B) Percentage of range adversely affected by the conservation
plan;
(C) Percentage of range conserved by the conservation plan;
(D) Ecological significance of that portion of the range affected
by the conservation plan;
(E) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan;
(F) Whether the conservation plan was originally designed to
provide an overall net benefit to the affected species and contained
measurable criteria for assessing the biological success of the
conservation plan; and
(G) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(6) NMFS will not seek additional mitigation for a species from a
permittee where the terms of a properly functioning conservation plan
agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(7) Nothing in this rule will be construed to limit or constrain
NMFS or any other governmental agency from taking additional actions at
its own expense to protect or conserve a species included in a
conservation plan.
(h) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the requirements of section 9
and 10 the ESA with respect to the species covered by the permit
regardless of changes in circumstances, policy, and regulation, unless
a change in statute or court order specifically requires that
assurances given in the original permit be modified or withdrawn.
Dated: May 21, 1997.
Donald J. Barry,
Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of
the Interior.
Dated: May 22, 1997.
Rolland A. Schmitten,
Acting Administrator for Fisheries, National Marine Fisheries Service.
[FR Doc. 97-14082 Filed 5-23-97; 2:23 pm]
BILLING CODE 4310-55-P