6916 Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations

use. It is NASA policy that the

exemption at 22 CFR 125.4(b)(3) may

only be used when technical data

(including software) is exchanged with

a NASA foreign partner pursuant to the

terms of an international agreement in

furtherance of an international

collaborative effort. The contracting

officer must obtain the approval of the

Center Export Administrator before

granting the contractor the authority to

use this exemption.

1825.970–2 Contract clause.

Insert the clause at 1852.225–70,

Export Licenses, in all solicitations and

contracts, except in contracts with

foreign entities. Insert the clause with

its Alternate I when the NASA project

office indicates that technical data

(including software) is to be exchanged

by the contractor with a NASA foreign

partner pursuant to an international

agreement.

PART 1852—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

3. Section 1852.225–70 is added to

read as follows:

1852.225–70 Export Licenses.

As prescribed in 1825.970–2, insert

the following clause:

EXPORT LICENSES (FEB 2000)

(a) The Contractor shall comply with all

U.S. export control laws and regulations,

including the International Traffic in Arms

Regulations (ITAR), 22 CFR Parts 120–130,

and the Export Administration Regulations

(EAR), 15 CFR Parts 730–799, in the

performance of this contract. In the absence

of available license exemptions/exceptions,

the Contractor shall be responsible for

obtaining the appropriate licenses or other

approvals, if required, for exports of

hardware, technical data, and software, or for

the provision of technical assistance.

(b) The Contractor shall be responsible for

obtaining export licenses, if required, before

utilizing foreign persons in the performance

of this contract, including instances where

the work is to be performed on-site at [insert

name of NASA installation], where the

foreign person will have access to exportcontrolled technical data or software.

(c) The Contractor shall be responsible for

all regulatory record keeping requirements

associated with the use of licenses and

license exemptions/exceptions.

(d) The Contractor shall be responsible for

ensuring that the provisions of this clause

apply to its subcontractors.

(End of clause)

ALTERNATE 1 (FEB 2000)

As prescribed in 1825.970–2, add the

following paragraph (e) as Alternate I to the

clause:

(e) The Contractor may request, in writing,

that the Contracting Officer authorizes it to

export ITAR-controlled technical data

(including software) pursuant to the

exemption at 22 CFR 125.4(b)(3). The

Contracting Officer or designated

representative may authorize or direct the

use of the exemption where the data does not

disclose details of the design, development,

production, or manufacture of any defense

article.

[FR Doc. 00–3009 Filed 2–10–00; 8:45 am]

BILLING CODE 7510–01–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

RIN 1018–AD95

Additional Comments Sought on

Permit Regulations Relating to Habitat

Conservation Plans, Safe Harbor

Agreements, and Candidate

Conservation Agreements With

Assurances

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of request for additional

comment on final rule amending general

permitting regulations.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service) published a

final rule on June 17, 1999, amending

parts 13 and 17 of title 50 of the Code

of Federal Regulations (CFR). The final

rule, among other things, contained a

number of changes to existing Service

regulations that apply to permits issued

under the authority of the Endangered

Species Act of 1973, as amended (Act).

The changes were designed to alter the

applicability of the Service’s general

permitting regulations in 50 CFR part 13

to permits issued under section 10 of

the Act for Habitat Conservation Plans,

Safe Harbor Agreements, and Candidate

Conservation Agreements with

Assurances. We are seeking additional

public comment on a number of the

regulatory changes finalized in the June

17, 1999, rule. During the period in

which additional public comments are

solicited, the regulations published in

the final rule of June 17, 1999, will

remain in full force and effect. Based on

public comments received, we will

decide whether portions of the June 17,

1999 final rule should be reproposed.

Aspects of the June 17, 1999 final rule

that are not included in this document

are unaffected.

DATES: Comments must be received by

March 13, 2000.

ADDRESSES: Send any comments or

materials concerning this document 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

420, Arlington Square Building, 4401

North Fairfax Drive, Arlington, Virginia.

You must make an appointment to

examine these materials.

FOR FURTHER INFORMATION CONTACT:

Nancy Gloman, Chief, Division of

Endangered Species (Telephone 703/

358–2171, Facsimile 703/358–1735).

SUPPLEMENTARY INFORMATION: This

notice of request for additional

comment on the final rule, including the

background information for the rule,

that amended the general permitting

regulations applies to the U.S. Fish and

Wildlife Service only. Therefore, the use

of the terms Service and ‘‘we’’ in this

notice refers exclusively to the U.S. Fish

and Wildlife Service. The final rule was

published on June 17, 1999, at 64 FR

32706. We published a correction

document September 30, 1999, at 64 FR

52676 to correct certain errors that

appeared in the final regulations.

Background

The Service administers a variety of

conservation laws that authorize the

issuance of certain permits for otherwise

prohibited activities. In 1974, we

published 50 CFR part 13 to consolidate

the administration of various permitting

programs. Part 13 established a uniform

framework of general administrative

conditions and procedures that would

govern the application, processing, and

issuance of all Service permits. We

intended the general part 13 permitting

provisions to be in addition to, and not

in lieu of, other more specific permitting

requirements of Federal wildlife laws.

Subsequent to the 1974 publication of

part 13, we added many wildlife

regulatory programs to title 50 of the

CFR. For example, we added part 18 in

1974 to implement the Marine Mammal

Protection Act, modified and expanded

part 17 in 1975 to implement the

Endangered Species Act, and added part

23 in 1977 to implement the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora

(CITES). These parts contained their

own specific permitting requirements in

addition to the general permitting

provisions of part 13.

In most instances, the combination of

part 13’s general permitting provisions

and part 17’s specific permitting

provisions have worked well since

1975. However, in three areas of

emerging permitting policy under the

Act, the ‘‘one size fits all’’ approach of

part 13 has been inappropriately

Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations 6917

constraining and narrow. These three

areas involve Habitat Conservation

Planning, Safe Harbor Agreements, and

Candidate Conservation Agreements

with Assurances.

Congress amended section 10(a)(1) of

the Act in 1982 to authorize incidental

take permits associated with Habitat

Conservation Plans (HCP). Many HCP

permits involve long-term conservation

commitments that run with the affected

land for the life of the permit or longer.

We negotiate such long-term permits

recognizing that a succession of owners

may purchase or resell the affected

property during the term of the permit.

The Service does not view this system

as a problem, where the requirements of

such permits run with the land and

successive owners agree to the terms of

the HCP. Property owners similarly do

not view this arrangement as a problem

so long as we can easily transfer

incidental take authorization from one

purchaser to another.

In other HCP situations, the HCP

permittee may be a State or local agency

that intends to sub-permit or blanket the

incidental take authorization to

hundreds if not thousands of its

citizens. We do not view this activity as

a problem so long as the original agency

permittee abides by, and ensures

compliance with, the terms of the HCP.

The above HCP scenarios have not

been easily reconcilable with certain

sections of part 13. For example, 50 CFR

sections 13.24 and 13.25 impose

significant restrictions on permit right of

succession or transferability. While

these restrictions are well justified for

most wildlife permitting situations, they

have imposed inappropriate and

unnecessary limitations for HCP permits

where the term of the permit may be

lengthy and the parties to the HCP have

foreseen the desirability of simplifying

sub-permitting and permit transference

from one property owner to the next, or

from a State or local agency to citizens

under their jurisdiction.

Similar problems also could have

arisen in attempting to apply the general

part 13 permitting requirements to

permits issued under part 17 to

implement Safe Harbor or Candidate

Conservation Agreements with

Assurances. A major incentive for

property owner participation in the Safe

Harbor or Candidate Conservation

Agreements with Assurances programs

is the long-term certainty the programs

provide, including the certainty that the

incidental take authorization will run

with the land if it changes hands and

the new owner agrees to be bound by

the terms of the original Agreement.

Property owners could have viewed the

limitations in several sections (e.g.,

sections 13.24 and 13.25) as

impediments to the development of

these Agreements.

Because we believed that it was

appropriate to address the potential

conflicts between parts 13 and 17 of the

regulations, we promulgated revisions

to the regulations that specifically

identify in which instances the permit

procedures for HCP, Safe Harbor, and

Candidate Conservation Agreements

with Assurances permits will differ

from the general part 13 permit

procedures.

Description/Overview of the Notice

Requesting Additional Comments

This notice seeks additional public

comment on the specific amendments to

parts 13 and 17, promulgated in the

June 17, 1999, final rule, that dictate

when the permitting requirements for

HCP, Safe Harbor, and Candidate

Conservation Agreements with

Assurances permits will vary from the

general part 13 requirements. We

believe specific regulatory amendments

will achieve the purpose of avoiding

potential conflicts between these

permits and the general part 13

requirements, while more clearly

informing potential applicants and the

interested public of the ways in which

the requirements for HCP, Safe Harbor,

and Candidate Conservation

Agreements with Assurances permits

differ from the general permit

requirements. The specific changes on

which we seek additional public

comment are as follows:

1. Section 13.21(b)(4) generally

prevents the Service from issuing a

permit for an activity that ‘‘potentially

threatens a wildlife or plant

population.’’ This provision is

unnecessary and might even be

confusing for issuance criteria for

permits under HCPs, Safe Harbor

Agreements, and Candidate

Conservation Agreements with

Assurances, since the HCP and

Candidate Conservation Agreements

with Assurances issuance criteria

already incorporate a requirement that

the permitted activity cannot be likely

to jeopardize the continued existence of

a species and since Safe Harbor

Agreement permits must meet a net

benefit test. The final rule therefore

revised the HCP permit issuance criteria

in sections 17.22(b)(2) and 17.32(b)(2) to

except HCP permits from section

13.21(b)(4) and included in the final

Safe Harbor Agreement and Candidate

Conservation Agreement with

Assurances permit regulations a similar

exception from section 13.21(b)(4)

(sections 17.22(c)(2) and (d)(2) and

17.32(c)(2) and (d)(2)).

2. Section 13.23(b) generally reserves

to the Service the right to amend

permits ‘‘for just cause at any time.’’ The

final rule revised this provision to

clarify that the Service’s reserved right

to amend HCP, Safe Harbor Agreement,

and Candidate Conservation Agreement

with Assurances permits must be

exercised consistently with the

assurances provided to HCP, Safe

Harbor Agreement, and Candidate

Conservation Agreement with

Assurances permit holders in their

permits and in the HCP, Safe Harbor

Agreement, and Candidate Conservation

Agreement with Assurances permit

regulations.

3. The final rule revised section 13.24

to provide a more streamlined approach

to rights of succession for HCP, Safe

Harbor Agreement, and Candidate

Conservation Agreement with

Assurances permits, and revised section

13.25 to provide for greater

transferability of these permits. The

restrictions that sections 13.24 and

13.25 previously imposed on permit

succession and transferability were

justified for most wildlife permitting

situations, but they were inappropriate

and unnecessary for HCP, Safe Harbor

Agreement, and Candidate Conservation

Agreement with Assurances permits.

These permits may involve substantial

long-term conservation commitments,

and the Service negotiates such longterm permits recognizing that there may

be succession or transfer in ownership

during the term of the permit. Revised

sections 13.24 and 13.25 allow this

transfer as long as the successor or

transferor owners meet the general

qualifications for holding the permit

and agree to the terms of the HCP, Safe

Harbor Agreement, or Candidate

Conservation Agreement with

Assurances. Under revised section

13.25(d), any person is under the direct

control of a State or local governmental

entity that has been issued a permit and

may carry out the activity authorized by

the permit if (1) that person is under the

jurisdiction of the governmental entity

and the permit provides that the person

may carry out the authorized activity, or

(2) the person has been issued a permit

by the governmental entity or executed

a written instrument with the

governmental entity pursuant to the

terms of an implementing agreement.

4. The final rule added a new

subparagraph (7) to sections 17.22(b)

and 17.32(b) to make clear that HCP

permittees remain responsible for

mitigation required under the terms of

their permits even after surrendering

their permits. We have required this

approach in many HCPs. The general

provision in section 13.26 was silent on

6918 Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations

this issue and could have been

interpreted as not requiring any further

actions after surrender of an incidental

take permit, even if mitigation were

owed under the terms of the permit for

take that had already occurred.

5. The final rule modified the permit

revocation criteria in section 13.28(a) to

provide that the section 13.28(a)(5)

criterion shall not apply to HCP, Safe

Harbor Agreement, and Candidate

Conservation Agreement with

Assurances permits. The Service

determined that it would be more

appropriate to refer instead to the

statutory issuance criterion in 16 U.S.C.

1539(a)(2)(B)(iv) that prohibits the

issuance of an incidental take permit

unless the Service finds the permit is

not likely to jeopardize the continued

existence of the species. The final rule

therefore included in the specific

regulations for HCP permits a provision

(sections 17.22(b)(8) and 17.32(b)(8))

that allows a permit to be revoked if

continuing the permitted activity would

be inconsistent with 16 U.S.C.

1539(a)(2)(B)(iv). The final rule also

included similar provisions for the Safe

Harbor Agreement and Candidate

Conservation Agreement with

Assurances permits (sections 17.22(c)(7)

and (d)(7), and sections 17.32(c)(7) and

(d)(7)).

In keeping with the ‘‘No Surprises’’

rule (sections 17.22(b)(5)–(6) and

17.32(b)(5)–(6)), these provisions would

allow the Service to revoke an HCP

permit as a last resort in the narrow and

unlikely situation in which an

unforeseen circumstance results in

likely jeopardy to a species covered by

the permit and the Service has not been

successful in remedying the situation

through other means. The Service is

firmly committed, as required by the No

Surprises rule, to utilizing its resources

to address any such unforeseen

circumstances. These principles also

apply to Safe Harbor Agreement and

Candidate Conservation Agreement with

Assurances permits.

6. The final rule revised section 13.50

to allow more flexibility where the

permittee is a State or local

governmental entity and has thus taken

a leadership role and is assisting in

implementation of the permit program.

7. The final rule added a new

subparagraph (5) to sections 17.22(c)

and (d) and 17.32(c) and (d) to provide

the same ‘‘No Surprises’’ assurances for

Safe Harbor Agreement and Candidate

Conservation Agreement with

Assurance permits that already apply to

HCPs.

To ensure that we have promulgated

the most effective regulations possible,

we seek additional comment on the

above described amendments of June

17, 1999, to Title 50, Chapter I,

subchapter B of the CFR, as set forth

below for the convenience of the reader.

The amendments contain the corrected

language included in the September 30,

1999 correction document. Bear in mind

that these changes are currently in

effect, and no new revision to the CFR

will result from this document.

§ 13.23 Amendment of permits.

* * * * *

(b) 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 any such amendment of a

permit issued under §§ 17.22(b) through (d)

or 17.32(b) through (d) of this subchapter

shall be consistent with the requirements of

§§ 17.22(b)(5), (c)(5), and (d)(5) or 17.32(b)(5),

(c)(5), and (d)(5) of this subchapter,

respectively.

* * * * *

§ 13.24 Right of succession by certain

persons.

(a) Certain persons other than the permittee

are authorized to carry on a permitted

activity for the remainder of the term of a

current permit, provided they comply with

the provisions of paragraph (b) of this

section. Such persons are the following:

(1) The surviving spouse, child, executor,

administrator, or other legal representative of

a deceased permittee; or

(2) A receiver or trustee in bankruptcy or

a court-designated assignee for the benefit of

creditors.

(b) In order to qualify for the authorization

provided in this section, the person or

persons desiring to continue the activity shall

furnish the permit to the issuing officer for

endorsement within 90 days from the date

the successor begins to carry on the activity.

(c) In the case of permits issued under

§§ 17.22(b) through (d) or 17.32(b) through

(d) of this subchapter B, the successor’s

authorization under the permit is also subject

to a determination by the Service that:

(1) The successor meets all of the

qualifications under this part for holding a

permit;

(2) The successor has provided adequate

written assurances that it will provide

sufficient funding for the conservation plan

or Agreement and will implement the

relevant terms and conditions of the permit,

including any outstanding minimization and

mitigation requirements; and

(3) The successor has provided such other

information as the Service determines is

relevant to the processing of the request.

§ 13.25 Transfer of permits and scope of

permit authorization.

(a) Except as otherwise provided for in this

section, permits issued under this part are

not transferable or assignable.

(b) Permits issued under §§ 17.22(b)

through (d) or 17.32(b) through (d) of this

subchapter B may be transferred in whole or

in part through a joint submission by the

permittee and the proposed transferee, or in

the case of a deceased permittee, the

deceased permittee’s legal representative and

the proposed transferee, provided the Service

determines that:

(1) The proposed transferee meets all of the

qualifications under this part for holding a

permit;

(2) The proposed transferee has provided

adequate written assurances that it will

provide sufficient funding for the

conservation plan or Agreement and will

implement the relevant terms and conditions

of the permit, including any outstanding

minimization and mitigation requirements;

and

(3) The proposed transferee has provided

such other information as the Service

determines is relevant to the processing of

the submission.

(c) Except as otherwise stated on the face

of the permit, any person who is under the

direct control of the permittee, or who is

employed by or under contract to the

permittee for purposes authorized by the

permit, may carry out the activity authorized

by the permit.

(d) In the case of permits issued under

§§ 17.22(b) through (d) or 17.32(b) through

(d) of this subchapter to a State or local

governmental entity, a person is under the

direct control of the permittee where:

(1) The person is under the jurisdiction of

the permittee and the permit provides that

such person(s) may carry out the authorized

activity; or

(2) The person has been issued a permit by

the governmental entity or has executed a

written instrument with the governmental

entity, pursuant to the terms of the

implementing agreement.

§ 13.28 Permit revocation.

(a) * * *

(5) Except for permits issued under

§§ 17.22(b) through (d) or 17.32(b) through

(d) 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.

* * * * *

§ 13.50 Acceptance of liability.

Except as otherwise limited in the case of

permits described in § 13.25 (d), any person

holding a permit under this subchapter B

assumes all liability and responsibility for

the conduct of any activity conducted under

the authority of such permit.

§ 17.22 Permits for scientific purposes,

enhancements of propagation or survival,

or for incidental taking.

* * * * *

(b) * * *

(2) Issuance criteria. (i) Upon receiving an

application completed in accordance with

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

will decide whether or not a permit should

be issued. The Director shall consider the

general issuance criteria in § 13.21(b) of this

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

* * * * *

(7) 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

Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations 6919

implementing agreement, habitat

conservation plan, or permit even after

surrendering the permit to the Service

pursuant to § 13.26 of this subchapter. The

permit shall be deemed canceled only upon

a determination by the Service that such

minimization and mitigation measures have

been implemented. Upon surrender of the

permit, no further take shall be authorized

under the terms of the surrendered permit.

(8) Criteria for revocation. A permit issued

under this paragraph (b) may not be revoked

for any reason except those set forth in

§ 13.28(a)(1) through (4) of this subchapter or

unless continuation of the permitted activity

would be inconsistent with the criterion set

forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the

inconsistency has not been remedied in a

timely fashion.

(c)(1) Application requirements for permits

for the enhancement of survival through Safe

Harbor Agreements. ***

(2) Issuance criteria. Upon receiving an

application completed in accordance with

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

will decide whether or not to issue a permit.

The Director shall consider the general

issuance criteria in § 13.21(b) of this

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

* * * * *

(5) Assurances provided to permittee. (i)

The assurances in paragraph (c)(5)(ii) of this

section apply only to Safe Harbor permits

issued in accordance with paragraph (c)(2) of

this section where the Safe Harbor

Agreement is being properly implemented,

and apply only with respect to species

covered by the Agreement and permit. These

assurances cannot be provided to Federal

agencies. The assurances provided in this

section apply only to Safe Harbor permits

issued after July 19, 1999.

(ii) If additional conservation and

mitigation measures are deemed necessary,

the Director may require additional measures

of the permittee, but only if such measures

are limited to modifications within

conserved habitat areas, if any, for the

affected species and maintain the original

terms of the Safe Harbor Agreement to the

maximum extent possible. 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 Safe Harbor Agreement

without the consent of the permittee.

(6) Additional actions. Nothing in this rule

will be construed to limit or constrain the

Director, any Federal, State, local, or Tribal

government agency, or a private entity, from

taking additional actions at its own expense

to protect or conserve a species included in

a Safe Harbor Agreement.

(7) Criteria for revocation. A permit issued

under this paragraph (c) may not be revoked

for any reason except those set forth in

§ 13.28(a)(1) through (4) of this subchapter or

unless continuation of the permitted activity

would be inconsistent with the criterion set

forth in § 17.22(c)(2)(iii) and the

inconsistency has not been remedied in a

timely fashion.

(8) Duration of permits. The duration of

permits issued under this paragraph (c) must

be sufficient to provide a net conservation

benefit to species covered in the

enhancement of survival permit. In

determining the duration of a permit, the

Director will consider the duration of the

planned activities, as well as the positive and

negative effects associated with permits of

the proposed duration on covered species,

including the extent to which the

conservation activities included in the Safe

Harbor Agreement will enhance the survival

and contribute to the recovery of listed

species included in the permit.

(d)(1) Application requirements for permits

for the enhancement of survival through

Candidate Conservation Agreements with

Assurances. ***

(2) Issuance criteria. Upon receiving an

application completed in accordance with

paragraph (d)(1) of this section, the Director

will decide whether or not to issue a permit.

The Director shall consider the general

issuance criteria in § 13.21(b) of this

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

* * * * *

(5) Assurances provided to permittee in

case of changed or unforeseen

circumstances. The assurances in this

paragraph (d)(5) apply only to permits issued

in accordance with paragraph (d)(2) where

the Candidate Conservation with Assurances

Agreement is being properly implemented,

and apply only with respect to species

adequately covered by the Candidate

Conservation with Assurances Agreement.

These assurances cannot be provided to

Federal agencies.

(i) Changed circumstances provided for in

the Agreement. If additional conservation

and mitigation measures are deemed

necessary to respond to changed

circumstances and were provided for in the

Agreement’s operating conservation program,

the permittee will implement the measures

specified in the Agreement.

(ii) Changed circumstances not provided

for in the Agreement. If additional

conservation and mitigation measures are

deemed necessary to respond to changed

circumstances and such measures were not

provided for in the Agreement’s operating

conservation program, the Director will not

require any conservation and mitigation

measures in addition to those provided for in

the Agreement without the consent of the

permittee, provided the Agreement is being

properly implemented.

(iii) Unforeseen circumstances. (A) In

negotiating 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

Agreement 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 Agreement is being

properly implemented, but only if such

measures are limited to modifications within

conserved habitat areas, if any, or to the

Agreement’s operating conservation program

for the affected species, and maintain the

original terms of the Agreement to the

maximum extent possible. 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 Agreement 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 Director will consider,

but not be limited to, the following factors:

(1) Size of the current range of the affected

species;

(2) Percentage of range adversely affected

by the Agreement;

(3) Percentage of range conserved by the

Agreement;

(4) Ecological significance of that portion

of the range affected by the Agreement;

(5) Level of knowledge about the affected

species and the degree of specificity of the

species’ conservation program under the

Agreement; 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 rule

will be construed to limit or constrain the

Director, any Federal, State, local, or Tribal

government agency, or a private entity, from

taking additional actions at its own expense

to protect or conserve a species included in

a Candidate Conservation with Assurances

Agreement.

(7) Criteria for revocation. A permit issued

under this paragraph (d) may not be revoked

for any reason except those set forth in

§ 13.28(a)(1) through (4) of this subchapter or

unless continuation of the permitted activity

would be inconsistent with the criterion set

forth in paragraph (d)(2)(iii) of this section

and the inconsistency has not been remedied

in a timely fashion.

(8) Duration of the Candidate Conservation

Agreement. The duration of a Candidate

Conservation Agreement covered by a permit

issued under this paragraph (d) must be

sufficient to enable the Director to determine

that the benefits of the conservation measures

in the Agreement, when combined with those

benefits that would be achieved if it is

assumed that the conservation measures

would also be implemented on other

necessary properties, would preclude or

remove any need to list the species covered

by the Agreement.

* * * * *

§ 17.32 Permits—general.

* * * * *

(b) * * *

(2) Issuance criteria. (i) Upon receiving an

application completed in accordance with

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

will decide whether or not a permit should

be issued. The Director shall consider the

6920 Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations

general issuance criteria in 13.21(b) of this

subchapter, except for 13.21(b)(4), * * *

* * * * *

(7) 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, habitat

conservation plan, or permit even after

surrendering the permit to the Service

pursuant to § 13.26 of this subchapter. The

permit shall be deemed canceled only upon

a determination by the Service that such

minimization and mitigation measures have

been implemented. Upon surrender of the

permit, no further take shall be authorized

under the terms of the surrendered permit.

(8) Criteria for revocation. A permit issued

under this paragraph (b) may not be revoked

for any reason except those set forth in

§ 13.28(a)(1) through (4) of this subchapter or

unless continuation of the permitted activity

would be inconsistent with the criterion set

forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the

inconsistency has not been remedied in a

timely fashion.

(c)(1) Application requirements for permits

for the enhancement of survival through Safe

Harbor Agreements. ***

(2) Issuance criteria. Upon receiving an

application completed in accordance with

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

will decide whether or not to issue a permit.

The Director shall consider the general

issuance criteria in § 13.21(b) of this

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

* * * * *

(5) Assurances provided to permittee. (i)

The assurances in subparagraph (ii) of this

paragraph (c)(5) apply only to Safe Harbor

permits issued in accordance with paragraph

(c)(2) of this section where the Safe Harbor

Agreement is being properly implemented,

and apply only with respect to species

covered by the Agreement and permit. These

assurances cannot be provided to Federal

agencies. The assurances provided in this

section apply only to Safe Harbor permits

issued after July 19, 1999.

(ii) If additional conservation and

mitigation measures are deemed necessary,

the Director may require additional measures

of the permittee, but only if such measures

are limited to modifications within

conserved habitat areas, if any, for the

affected species and maintain the original

terms of the Safe Harbor Agreement to the

maximum extent possible. 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 Safe Harbor Agreement

without the consent of the permittee.

(6) Additional actions. Nothing in this rule

will be construed to limit or constrain the

Director, any Federal, State, local, or Tribal

government agency, or a private entity, from

taking additional actions at its own expense

to protect or conserve a species included in

a Safe Harbor Agreement.

(7) Criteria for revocation. A permit issued

under this paragraph (c) may not be revoked

for any reason except those set forth in

§§ 13.28(a)(1) through (4) of this subchapter

or unless continuation of the permitted

activity would be inconsistent with the

criterion set forth in §§ 17.22(c)(2)(iii) and

the inconsistency has not been remedied in

a timely fashion.

(8) Duration of permits. The duration of

permits issued under this paragraph (c) must

be sufficient to provide a net conservation

benefit to species covered in the

enhancement of survival permit. In

determining the duration of a permit, the

Director will consider the duration of the

planned activities, as well as the positive and

negative effects associated with permits of

the proposed duration on covered species,

including the extent to which the

conservation activities included in the Safe

Harbor Agreement will enhance the survival

and contribute to the recovery of listed

species included in the permit.

(d)(1) Application requirements for permits

for the enhancement of survival through

Candidate Conservation Agreements with

Assurances. ***

(2) Issuance criteria. Upon receiving an

application completed in accordance with

paragraph (d)(1) of this section, the Director

will decide whether or not to issue a permit.

The Director shall consider the general

issuance criteria in § 13.21(b) of this

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

* * * * *

(5) Assurances provided to permittee in

case of changed or unforeseen

circumstances. The assurances in this

paragraph (d)(5) apply only to permits issued

in accordance with paragraph (d)(2) where

the Candidate Conservation with Assurances

Agreement is being properly implemented,

and apply only with respect to species

adequately covered by the Candidate

Conservation with Assurances Agreement.

These assurances cannot be provided to

Federal agencies.

(i) Changed circumstances provided for in

the Agreement. If additional conservation

and mitigation measures are deemed

necessary to respond to changed

circumstances and were provided for in the

Agreement’s operating conservation program,

the permittee will implement the measures

specified in the Agreement.

(ii) Changed circumstances not provided

for in the Agreement. If additional

conservation and mitigation measures are

deemed necessary to respond to changed

circumstances and such measures were not

provided for in the Agreement’s operating

conservation program, the Director will not

require any conservation and mitigation

measures in addition to those provided for in

the Agreement without the consent of the

permittee, provided the Agreement is being

properly implemented.

(iii) Unforeseen circumstances. (A) In

negotiating 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

Agreement 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 Agreement is being

properly implemented, but only if such

measures are limited to modifications within

conserved habitat areas, if any, or to the

Agreement’s operating conservation program

for the affected species, and maintain the

original terms of the Agreement to the

maximum extent possible. 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 Agreement 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 Director will consider,

but not be limited to, the following factors:

(1) Size of the current range of the affected

species;

(2) Percentage of range adversely affected

by the Agreement;

(3) Percentage of range conserved by the

Agreement;

(4) Ecological significance of that portion

of the range affected by the Agreement;

(5) Level of knowledge about the affected

species and the degree of specificity of the

species’ conservation program under the

Agreement; 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 rule

will be construed to limit or constrain the

Director, any Federal, State, local, or Tribal

government agency, or a private entity, from

taking additional actions at its own expense

to protect or conserve a species included in

a Candidate Conservation with Assurances

Agreement.

(7) Criteria for revocation. A permit issued

under this paragraph (d) may not be revoked

for any reason except those set forth in

§ 13.28(a)1) through (4) of this subchapter or

unless continuation of the permitted activity

would be inconsistent with the criterion set

forth in paragraph (d)(2)(iii) of this section

and the inconsistency has not been remedied

in a timely fashion.

(8) Duration of the Candidate Conservation

Agreement. The duration of a Candidate

Conservation Agreement covered by a permit

issued under this paragraph (d) must be

sufficient to enable the Director to determine

that the benefits of the conservation measures

in the Agreement, when combined with those

benefits that would be achieved if it is

assumed that the conservation measures

Federal Register / Vol. 65, No. 29 / Friday, February 11, 2000 / Rules and Regulations 6921

would also be implemented on other

necessary properties, would preclude or

remove any need to list the species covered

by the Agreement.

Authority: The authority for this notice is

the Endangered Species Act of 1973, as

amended, 16 U.S.C. 1531 et seq.

Dated: February 1, 2000.

Donald J. Barry,

Assistant Secretary, Fish, Wildlife, and Parks,

Department of the Interior.

[FR Doc. 00–2870 Filed 2–10–00; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 991210331–0017–02; I.D.

102899B]

RIN 0648–AN34

Fisheries of the Exclusive Economic

Zone off Alaska; Inshore Fee System

for Repayment of the Loan to

Harvesters of Pollock from the

Directed Fishing Allowance Allocated

to the Inshore Component Under

Section 206(b)(1) of the American

Fisheries Act (AFA); Correction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule; correction.

SUMMARY: NMFS published in the

Federal Register of February 3, 2000, a

document implementing an inshore fee

system for all pollock harvested under

the inshore component (IC) of the

Bering Sea/Aleutian Islands (BS/AI)

directed fishing allowance under

section 206(b)(1) of the AFA. The fee

system provides the means of repaying

a $75 million loan to reduce fishing

capacity in that fishery. Fees are first

due and payable under the inshore fee

system on February 10, 2000. Although

the fee system provisions were

established in a separate subpart G of

part 679, the section numbering was

duplicated inadvertently in another

recently published BS/AI rule. The

intent of this rule is to correct that error

by renumbering the sections of Subpart

G as §§ 679.70–679.76.

DATES: Effective February 10, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael L. Grable, (301) 713–2390.

SUPPLEMENTARY INFORMATION: NMFS

published a document in the Federal

Register of February 3, 2000, (65 FR

5278)establishing a new subpart G

consisting of §§ 679.60–679.66 to

implement an inshore fee system for all

pollock harvested under the IC of the

BS/AI directed fishing allowance. Less

than a week earlier, NMFS had

published a document in the Federal

Register of January 28, 2000, (65 FR

4520) establishing a new subpart F

consisting of §§ 679.59–679.64 to

implement major provisions of the AFA

including sideboard directed fishing

closures. Thus, §§ 679.60–679.64 of the

rule published on January 28, 2000,

would be replaced by the unrelated rule

published on February 3, 2000. This

correction renumbers the new subpart G

as §§ 679.70–679.76. In addition, the

reference to the definitions section of

part 679 is corrected from § 679.01 to

§ 679.02.

In rule FR Doc. 00–2284, published

on Thursday, February 3, 2000 (65 FR

5278) make the following corrections:

1. On page 5279, in the third column,

fourth complete paragraph, second line,

correct ‘‘§ 679.64’’ to read ‘‘§ 679.74’’.

2. On page 5279, in the third column,

sixth complete paragraph, second line,

correct ‘‘§ 679.63’’ to read ‘‘§ 679.73’’.

3. On page 5279, in the third column,

eighth complete paragraph, third line,

correct ‘‘§ 679.60’’ to read ‘‘§ 679.70’’.

4. On page 5280, in the first column,

fourth complete paragraph, fourth line,

correct ‘‘§ 679.64’’ to read ‘‘§ 679.74’’.

5. On page 5280, in the first column,

eighth complete paragraph, first line,

correct ‘‘§ 679.60’’ to read ‘‘§ 679.70’’.

6. On page 5280, in the first column,

ninth complete paragraph, first line,

correct ‘‘§ 679.61’’ to read ‘‘§ 679.71’’.

7. On page 5280, in the first column,

tenth complete paragraph, first line,

correct ‘‘§ 679.63’’ to read ‘‘§ 679.73’’.

8. On page 5280, in the first column,

eleventh complete paragraph, first line,

correct ‘‘§ 679.64’’ to read ‘‘§ 679.74’’.

9. On page 5281, in the first column,

correct the section numbers in the table

of contents for subpart G from

§§ 679.60–679.66 to §§ 679.70–679.76.

10. Sections 679.60 through 679.66

appearing on pages 5281 through 5283

are correctly designated as §§ 679.70

through 679.76.

11. On page 5281, in the first column,

in corrected §679.70, second line,

correct ‘‘§ 679.1’’ to read ‘‘§ 679.2’’.

12. On page 5282, in the second

column, in corrected §679.73(c), last

line, correct ‘‘§ 679.62(b)(1)’’ to read

‘‘§ 679.72(b)(1)’’.

Dated: February 8, 2000.

Don Knowles,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 00–3214 Filed 2–9–00; 9:10 am]

BILLING CODE 3510–22–F