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[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Rules and Regulations]
[Pages 6483-6487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1483]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 17

RIN AG44

Response to Public Comments on Amending General Permitting 
Regulations Relating to Habitat Conservation Plans, Safe Harbor 
Agreements and Candidate Conservation Agreements With Assurances

AGENCIES: Fish and Wildlife Service, Department of the Interior.

ACTION: Final rule; affirmation.

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SUMMARY: On June 17, 1999, the U.S. Fish and Wildlife Service (Service) 
published a final rule amending parts 13 and 17 of title 50 of the Code 
of Federal Regulations (CFR). This rule created regulations for the new 
Safe Harbor and Candidate Conservation Agreements with Assurances 
policies, and also dictated when the permitting requirements of Habitat 
Conservation Plan (HCP), Safe Harbor Agreement (SHA) and Candidate 
Conservation Agreement with Assurances (CCAA) permits, issued under the 
authority of section 10 of the Endangered Species Act of 1973, as 
amended (ESA), will vary from the Service's general part 13 permitting 
requirements. On February 11, 2000, we published a request for 
additional public comment on seven specific regulatory changes that 
altered the applicability of 50 CFR part 13 to permits for HCPs, SHAs 
and CCAAs. Based on our review of the comments, we have decided not to 
repropose any of the amendments to part 13 or part 17.

DATES: Final rule published on June 17, 1999 remains effective.

ADDRESSES: Chief, Division of Conservation and Classification, or 
Chief, Division of Consultation, Habitat Conservation Planning and 
Recovery, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
Room 420, Arlington, Virginia 22203 (Telephone 703/358-2171; Facsimile 
703/358-1735).

FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of 
Conservation and Classification, U.S. Fish and Wildlife Service 
(telephone 703/358-2171, facsimile 703/358-1735), or Renne Lohoefener, 
Chief, Division of Consultation, Habitat Conservation Planning and 
Recovery, U.S. Fish and Wildlife Service (telephone 703/358-2171, 
facsimile 703/358-1735).

SUPPLEMENTARY INFORMATION:

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 that the general part 13 permitting 
provisions would apply to the various Federal wildlife and plant 
programs administered by the Service and that the specific permitting 
requirements applicable to each of these programs would supplement 
rather than replace the general part 13 requirements.
    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 ESA, 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.
    With respect to most of the programs under the ESA, 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 ESA, the general approach 
of part 13 has turned out to be

[[Page 6484]]

inappropriately constraining and narrow. These three areas involve the 
Habitat Conservation Planning, Safe Harbor, and Candidate Conservation 
Agreements with Assurances programs.
    Congress amended section 10(a)(1) of the ESA in 1982 to authorize 
incidental take permits associated with HCPs. 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 
property owner to the next.
    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 generally impose significant restrictions on right of succession 
and transferability of permits. 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 its 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 SHAs and CCAAs. 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 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.
    We promulgated revisions to parts 13 and 17 of the regulations that 
specify the instances in which the specific permit procedures for HCP, 
SHA, and CCAA permits will differ from the general part 13 permit 
procedures. We published a proposed rule on June 12, 1997, (62 FR 
32178) to change the regulations at 50 CFR part 17 in order to 
implement the new SHA and CCAA policies and to revise the way in which 
the part 13 regulations would apply to the specific HCP, SHA, and CCAA 
regulations. On June 17, 1999, we issued a final rule (64 FR 32706) 
that created regulations for the SHA and CCAA policies, and changed the 
applicability of parts of the general part 13 permit regulations to the 
HCP, SHA, and CCAA programs. We also published a notice on September 
30, 1999, (64 FR 52676) to correct certain errors that appeared in the 
final regulations. On February 11, 2000, we published a request for 
additional public comment (65 FR 6916) on the seven specific regulatory 
changes that altered the applicability of part 13 to the HCP, SHA, and 
CCAA programs and that were part of the June 17, 1999, final rule. This 
document responds to the additional public comments we received as a 
result of the February 11, 2000, notice.

Summary of Comments Received

    We received approximately 450 comments from individuals, 
conservation groups, trade associations, Federal, State and local 
agencies, businesses, and private organizations in response to our 
February 11, 2000, request for additional comments on our June 17, 
1999, final rule. Because most of these letters included similar 
comments (more than 350 were form letters received electronically), we 
grouped the comments according to issues. We further divided these 
issues into two sets. The issues in the first set deal with the June 
17, 1999, final rule as a whole. The issues in the second set pertain 
to the individual sections of the June 17, 1999, final rule and are 
organized accordingly. In addition, we received a number of comments, 
including comments on the February 23, 1998, ``No Surprises'' final 
rule (63 FR 8859) itself and on the HCP program in general. These 
comments are beyond the scope of our request and we are not responding 
to those comments as part of this process. The following is a summary 
of the relevant comments and the Service's responses.

General Issues

    Issue 1: We received over 300 comments on the public notice process 
associated with the June 17, 1999, final rule. Most commenters appear 
to believe that the February 11, 2000, request for additional comments 
was in fact the first opportunity for the public to comment on the 
proposal to conform the general permit regulations of part 13 to the 
HCP program. For example, many of the commenters stated that they 
viewed it to be ``a flagrant subversion of the concept of public notice 
and comment for the government to make important final rule changes and 
subsequently, many months later, solicit public comment on them.''
    Response 1: Although not within the scope of the request for public 
comments, we believe these comments warrant a response because they 
indicate a high level of confusion concerning the nature of the 
February 11, 2000, notice seeking additional public comment. We believe 
that we have provided the public more than adequate notice to review 
comment on the June 17, 1999, final rule. The February 11, 2000 request 
for public comment was the second opportunity, not the first, that the 
public had to comment on changes to part 13 contained within our June 
17, 1999, final rule. We first proposed changes to part 13 in order to 
conform part 13 with the HCP program in June of 1997.
    In the summary section of our June 12, 1997, proposed rule (62 FR 
32178), we stated, ``in addition, the Service proposes technical 
amendments to its general regulations (50 CFR part 13) which are 
applicable to all of its various permitting programs. These proposed 
revisions would clarify the application of existing general permit 
conditions to the permitting procedures associated with Habitat 
Conservation Plans, Safe Harbor Agreements and Candidate Conservation 
Agreements issued under section 10 of the Act.'' The background section 
of the June 12, 1997, proposed rule went into great detail on the basis 
for proposing changes to part 13 stating, ``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 the `one size fits all' 
approach of part 13 is inappropriately constraining and narrow.'' In 
the public comments solicited section of the June 12, 1997, proposed 
rule, we also specifically requested comment on ``the proposed 
regulatory changes to 50 CFR parts 13 and 17.'' Our June 12, 1997, 
proposed

[[Page 6485]]

rule would have dealt with the potential for conflict between parts 13 
and 17 by providing in the scope section of the part 13 (50 CFR 13.03) 
that the specific provisions in the HCP, SHA and CCAA regulations, and 
associated permits and agreements, would control wherever they were in 
conflict with the general part 13 permitting regulations. In the June 
17, 1999, final rule, we chose to make seven specific changes to parts 
13 and 17 that removed the potential for conflict, rather than to 
change the scope of part 13. We view the final approach as well within 
the scope of the initial proposal and completely conforming to the 
public notice requirements of the Administrative Procedure Act.

Specific Issues

    In our public notice of February 11, 2000, we sought additional 
public comment on our specific changes to the permitting regulations 
found in our June 17, 1999, final rule. The specific issues we received 
are arranged according to the relevant regulation with a summary of the 
June 17, 1999, final rule changes. Our responses to the issues raised 
are as follows:

Section 13.21(b)(4)--Issuance of Permits

    We 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 also 
included a similar provision in the SHA and CCAA permit regulations 
(sections 17.22(c)(2) and (d)(2) and 17.32(c)(2) and (d)(2)). Section 
13.21(b)(4) generally prevents the Service from issuing a permit for an 
activity that ``potentially threatens a wildlife or plant population.'' 
However, the specific issuance criteria for HCP, SHA, and CCAA permits 
all require a finding that the permit will ``* * * not appreciably 
reduce the likelihood of survival and recovery of the species in the 
wild.'' See, for example, 50 CFR 17.22(b)(2)(i)(D).
    Issue 2: We received four comments specifically on the 
applicability of section 13.21(b)(4). One commenter opposed the 
revision, and three commenters supported it. The comment in opposition 
to the change believed that it would shift the standard for permit 
issuance from ``survival and recovery'' to ``continued existence.''
    Response 2: The old provision under section 13.21(b)(4) was 
unnecessary and potentially in conflict with the issuance criteria for 
permits under the HCP, SHA, and CCAA programs. The decision to rely on 
the permit issuance criteria in section 10 of the ESA instead of on 
part 13 has not changed our standard for HCP permits. The provision in 
section 13.21(b)(4) predates the creation of the HCP program by 
Congress in 1982. Although the standard in section 13.21(b)(4), with 
its focus on ``potential threats to a wildlife population,'' works well 
for research permits, it is not well suited to the HCP program which 
does allow for incidental take in a population if it is minimized and 
mitigated to the maximum extent practicable. This standard is also 
arguably inconsistent with the species-focused statutory issuance 
criteria created by the 1982 amendments to the ESA. Our June 17, 1999, 
final rule changes to parts 17.22(b)(2), (c)(2), (d)(2) and 
17.32(b)(2), (c)(2), and (d)(2) retain the criteria for the issuance of 
permits associated with an HCP, SHA, or CCAA as, among others, ``* *  
not appreciably reduce the likelihood of survival and recovery. * * *'' 
Therefore, this standard for these permits did not shift.

Section 13.23(b)--Amendment of Permits

    We revised section 13.23(b), which generally reserves to the 
Service the right to amend permits ``for just cause at any time.'' The 
revision clarified that the Service's reserved right to amend HCP, SHA, 
and CCAA permits must be exercised consistently with the assurances 
provided to permit holders through the permits and regulations.
    Issue 3: We received four comments on the change to section 
13.23(b). All four commenters supported the change, noting that the old 
provision was arguably inconsistent with the ``No Surprises'' final 
rule.
    Response 3: We agree that the revision removes a potential conflict 
between the general provisions of part 13 and the more specific permit 
regulations in part 17.

Sections 13.24 and 13.25--Right of Succession by Certain Persons and 
Transfer of Permits and Scope of Permit Authorization

    We revised sections 13.24 and 13.25 in order to expand and 
streamline the process for permit succession or transfer. We also 
revised section 13.25(d) to describe the circumstances under which a 
person is considered to be acting under the direct control of a state 
or local governmental entity and therefore is entitled to act under the 
authority of an incidental take permit issued to the state or local 
governmental entity.
    Issue 4: We received six comments on the revisions to sections 
13.24 and 13.25. Five of the comments voiced support for the changes, 
noting that ease of transferability will make the permit more 
worthwhile to landowners. One comment, on behalf of a number of local 
governmental entities, raised two issues concerning the revisions to 
section 13.25(d). This commenter felt that the term ``under the 
jurisdiction'' was vague and suggested we use non-limiting examples to 
indicate that any person whose activities are subject to the customary 
planning, permitting, and regulatory activities of a local government 
would be considered a person ``under the jurisdiction'' of the 
governmental entity for purposes of section 13.25(d). This commenter 
also felt that the use of the term ``permit'' was problematic because 
local governments sometimes operate in a permitting capacity without 
actually issuing a permit (e.g., resolutions, ``conditions'' or 
``requirements'').
    Response 4: The old provisions at 13.24 and 13.25 were justified 
for most wildlife permitting situations, but not for HCPs, SHAs, and 
CCAAs. These agreements often involve substantial long-term 
conservation commitments, and we negotiate such agreements recognizing 
that there may be succession or transfer in land ownership during the 
term of the permit.
    We agree that any person whose activities are subject to the 
customary planning, permitting, and regulatory activities of a state or 
local government would be considered a person ``under the 
jurisdiction'' of the governmental entity for purposes of section 
13.25(d). We also believe that the second qualifying statement that 
``the permit provides that such persons may carry out the authorized 
activity'' sufficiently narrows the scope of the transfer of take 
authorization.
    We do not believe that the ``permit'' concept should be broadened 
to include circumstances in which an individual does not execute some 
type of document with the Service or a local governmental entity 
sponsoring an HCP. We structured section 13.25(d) to accommodate 
situations in which a local government is not regulating an activity 
through a local permit, but still wants to sponsor a regional HCP 
permit using a subpermitting process. In those situations the local 
government must still use some type of written instrument to include 
individuals within the permit's coverage, in accordance with the 
implementing agreement for the HCP. We, therefore, do not view the 
current language in section 13.25(d) as posing the problem raised by 
the comment.
    Issue 5: Another commenter believed that the emphasis in section 
13.25(d) on local governments meant that private conservation banks 
would not be allowed. The commenter recommended that this section be 
changed to allow

[[Page 6486]]

private entities to pass on the take authorization of a permit to 
individuals who purchase conservation bank credits.
    Response 5: We designed section 13.25(d) to provide a process for 
local governments to assist with HCP implementation on a regional basis 
through the exercise of local land use authority. We do not view 
section 13.25(d) as prohibiting private conservation banks in any way, 
but we also do not view it as the appropriate regulatory provision to 
convey take authorization to purchasers of conservation bank credits. 
The current regulatory framework provides flexibility on how permits 
should be structured around conservation banks and we believe this 
issue can be addressed through the development of policy on 
conservation banking instead of through regulatory revisions.
    Issue 6: One commenter objected that the new requirements for 
permit transfer required more for SHAs than the Safe Harbor policy did. 
The commenter specifically pointed to the requirement for a ``joint 
submission'' by the current and prospective landowner instead of the 
simpler requirement for a new landowner on their own to simply express 
an interest in continuing with the SHA.
    Response 6: We agree with the commenter that it would be an odd 
result if it were easier to apply for a SHA than to transfer an 
existing agreement during the purchase of property. We do not believe 
that the changes to section 13.25 make it more difficult to transfer an 
existing permit than to apply for a new one. We also do not believe 
that the requirement set forth in section 13.25 for a ``joint 
submittal'' on the part of the old and new landowners is particularly 
onerous. The original landowner needs to provide some sort of 
communication to the Service in order to inform us of that landowner's 
desire to terminate the agreement. The new landowner would similarly be 
providing the Service with an indication of whether they seek to 
continue the SHA of their predecessor or not. We do not believe it will 
be difficult for the two entities to provide a joint submittal when the 
intent is to carry on the SHA. We will continue to track this issue as 
we gain experience with the Safe Harbor program and will consider 
modifications to the program in the future should the requirement for a 
``joint submittal'' prove troublesome.

Section 13.26--Discontinuance of Permit Activity

    In the June 17, 1999, final rule, we 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. The general provision on 
permit surrender at section 13.26 did not address this issue. The new 
provisions made it clear that any mitigation owed for take occurring 
prior to permit surrender would still be required after the permit was 
surrendered.
    Issue 7: We received three comments on the addition of subparagraph 
(7) to sections 17.22(b) and 17.32(b). Two of the commenters supported 
the new provision addressing post termination mitigation, finding that 
it was a reasonable way to address the issue. One commenter did not 
favor the provision and suggested it was unfair to the permittee to be 
asked for mitigation after the permit has been surrendered or revoked.
    Response 7: We have limited the requirement for post termination 
mitigation to those situations in which the take has occurred prior to 
permit surrender, but the mitigation that was agreed to has not been 
completed. In order to obtain a permit, the HCP must include measures 
that minimize and mitigate the anticipated impacts and ensure that 
adequate funding for the plan will be provided. In addition, the HCP 
must not appreciably reduce the likelihood of survival and recovery of 
the species to be permitted. With the issuance of the permit the 
Service makes a finding that the HCP has met the issuance criteria 
based on the assumption that the implementation of the operating 
conservation program will offset the proposed impacts. Therefore, we 
believe it is fair to require the permittee to complete mitigation for 
take that has already occurred.

Section 13.28a--Permit Revocation

    We 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, 
SHA, and CCAA permits. We 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 a permit unless the 
Service finds the permit will not appreciably reduce the likelihood of 
survival and recovery of the species. We, therefore, included in the 
HCP regulations 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) and the 
inconsistency had not been remedied in a timely fashion. We also 
included similar provisions for SHA and CCAA permits (sections 
17.22(c)(7) and (d)(7), and sections 17.32(c)(7) and (d)(7)).
    Issue 8: We received numerous comments on the provisions addressing 
permit revocation. The comments ranged widely, but generally fell into 
two categories, one of which is that the agency did not go far enough 
with the revocation provision and the other is that the agency went too 
far with the revocation provision. With respect to comments objecting 
because the revocation provision did not go far enough, many of the 
commenters stated that they did not see any reason why the old 
provision in section 13.28(a) should be replaced with a standard they 
viewed as less protective. These commenters also stated that the 
revocation provision should have mandatory language like the word 
``shall'' to indicate that revocation is not discretionary. Many 
commenters questioned why the Service should have to step in at public 
expense to remedy jeopardy situations before a permit can be revoked. 
Some questioned what the standard ``in a timely fashion'' means. One 
commenter suggested that the revocation provision also contain a 
reference to adverse modification of critical habitat, while another 
commenter recommended that the word ``jeopardy'' be used instead of 
``appreciable reduction in likelihood of survival and recovery'' 
because the commenter viewed ``jeopardy'' to be a higher standard.
    With respect to comments expressing concern that the Service has 
gone too far, we received a number of comments stating that the 
revocation provision undermined the ``No Surprises'' rule. These 
commenters strongly opposed any further expansion of the revocation 
provision and suggested further expansion would be contrary to 
congressional intent. A number of commenters requested that the Service 
reaffirm the principles of ``No Surprises'' and noted that revocation 
should be ``an action of last resort.'' Another commenter requested 
that we limit revocation to instances where the permittee is not in 
compliance with the permit or, at a minimum, add to the revocation 
provision a statement to indicate that the burden is on the agency to 
establish that the conditions for revocation exist. Another commenter 
stated that the revocation provision is not applicable to the Safe 
Harbor context and that Safe Harbor revocation should be limited to 
instances where the permittee is not in compliance or has refused 
efforts to salvage animals or to sell land at fair market value.
    Response 8: We believe that it is inappropriate to have a standard 
for

[[Page 6487]]

revocation of a permit that is different from the standard for issuing 
the permit in the first place. When Congress amended the ESA in 1982 to 
create the HCP permit program, it clearly indicated that the relevant 
focus would be at the species level. Section 13.28(a)(5) predates the 
1982 amendments and focuses only on the wildlife population in the 
permitted area. We therefore believe that it is appropriate to replace 
section 13.28(a)(5) with a provision that more accurately reflects the 
congressional intent behind the 1982 amendments. The new revocation 
provision established in sections 17.22 and 17.32 is written in a 
manner that indicates when revocation is not permissible instead of 
when it is. As a result, the suggestion that the word ``may'' be 
changed to ``shall'' is not practical. In addition, decisions involving 
permit revocation are fact-intensive and will require the exercise of 
discretion on the part of the agency. It is therefore questionable 
whether permit revocation standards can be described as being mandatory 
versus discretionary.
    In the February 23, 1998, ``No Surprises'' final rule, we provided 
the rationale for committing the agency to step in and attempt to 
remedy jeopardy situations in cases where the permittee is in full 
compliance with the permit and has a properly implemented conservation 
plan in place. In exchange for assurances, the HCP permittee has agreed 
to undertake extensive planning and to include contingencies to address 
changed circumstances. This requirement does not exist in other Federal 
permitting programs. We believe it is fair, therefore, to commit the 
agency to step in and address unforeseen circumstances in the very rare 
circumstance that this will be required.
    Because each HCP is so case-specific it is not possible to indicate 
what remedying the jeopardy situation in ``a timely fashion'' means in 
all instances. Whether a response can be deemed timely or not will 
depend on highly fact-specific issues, including the species involved 
and the source of the problem.
    We do not see the need to add a reference to adverse modification 
of critical habitat or to use the word ``jeopardy'' in the revocation 
provisions. Instead we view it to be preferable to simply reference the 
statutory permit issuance criterion. Although one commenter viewed the 
terms ``jeopardy'' and ``appreciable reduction of survival and 
recovery'' to mean two different things, we view the terms to be 
synonymous, and in fact the agency's definition of ``jeopardy'' is to 
``reduce appreciably the likelihood of both the survival and recovery 
of a listed species in the wild.''
    As we stated in our notice of February 11, 2000, ``the Service is 
firmly committed, as required by the ``No Surprises'' final rule, to 
utilizing its resources to address any such unforeseen circumstances,'' 
and we view the revocation provision as available ``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 as not been successful in remedying the situation through other 
means.'' (65 FR 6916, 6918). We further view the likelihood of the 
revocation provision applying in the Safe Harbor context to be 
extremely remote and likely to occur only in the limited circumstances 
described by the commenter. Because the revocation provision is based 
on a biological situation and therefore applies to more situations than 
those in which the permittee is in non-compliance, we decline to narrow 
the provision as requested by one commenter. We believe that the 
current revocation provision is consistent with congressional intent 
and strikes the right balance between the need for permittee certainty 
and the need to avoid jeopardy to the species covered by the permit. We 
also believe that existing regulatory provisions, both in part 13 and 
the ``No Surprises'' final rule, adequately detail the agency's burden 
in permit revocation contexts and that there is, therefore, no need to 
add the suggested process changes to the revocation provision.

Section 13.50--Acceptance of Liability

    We 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. In this limited situation, the governmental permittee would 
not be liable for activity conducted by sub-permittees under the 
authority of the permit issued to the governmental entity.
    Issue 9: We received one comment in support of the change to 
section 13.50. The commenter noted that the change to limit the 
liability of State and local governments that hold master permits would 
encourage greater regional HCP planning.
    Response 9: We agree and believe that the revision to section 13.50 
is warranted. In large regional plans, the local jurisdiction largely 
administers the implementation of the HCP. In doing so, the local 
jurisdiction extends the incidental take authority of their permit to 
other non-Federal entities undertaking activities in accordance with 
the HCP. We believe it is those entities that should be responsible for 
their actions involving implementation of the HCP and incidental take 
permit, rather than the governmental entity that holds the master 
permit.

Sections 17.22(c)(5), (d)(5) and 17.32(c)(5), (d)(5)--Assurances 
Provided to the Permittee in the Case of Changed or Unforeseen 
Circumstances

    We extended the ``No Surprises'' assurances that apply to HCP 
permits to SHA and CCAA permits. We did this by adding a new 
subparagraph (5) to sections 17.22(c) and (d) and 17.32(c) and (d).
    Issue 10: We received two comments supporting the addition of 
assurances to the SHA and CCAA programs.
    Response 10: Many landowners would be willing to manage their lands 
voluntarily to benefit fish, wildlife, and plants, especially those in 
decline, provided that they are not subjected to additional regulatory 
restrictions as a result of their conservation efforts. Therefore, we 
agree that when a landowner voluntarily implements the provisions of a 
SHA or CCAA, in accordance with the respective standards of those 
programs, the landowner should receive assurances that we will not 
require any additional conservation measures without their consent.

Summary

    After careful review of all of the comments received, we have 
determined that none of the comments revealed problems with the current 
regulatory framework that would warrant a reproposal of the permit 
regulation changes. Based on our review of the comments, we believe 
that the changes to the permit regulations effectively achieve the goal 
of conforming part 13 to the more recently created permit programs for 
HCPs, SHAs, and CCAAs and that they strike the proper balance. 
Accordingly, we have decided not to repropose any of the amendments to 
part 13 or part 17.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 10, 2001.
Jamie R. Clark,
Director, Fish and Wildlife Service.
[FR Doc. 01-1483 Filed 1-19-01; 8:45 am]
BILLING CODE 4310-55-P
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