![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Endangered and Threatened Species; Transfer of Permits
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 21, 2001 (Volume 66, Number 246)]
[Proposed Rules]
[Page 65873-65875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de01-23]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 011130288-1288-01; I.D. 092101C]
RIN 0648-AP64
Endangered and Threatened Species; Transfer of Permits
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for public comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes a rule that would allow the transfer of certain
permits issued by NMFS under the Endangered Species Act (ESA) of 1973,
as amended. This proposed rule would allow the transfer of permits
associated with Habitat Conservation Plans, Safe Harbor Agreements with
Assurances and Candidate Conservation Agreements with Assurances.
Currently, if a permit holder wants to sell property to a new owner,
the new owner would need to apply for a separate permit. If regulations
are put in place to allow transfers, time and money will be saved for
NMFS and the new landowner with no adverse impact on the environment.
DATES: Written comments on the proposed rule must be received at the
appropriate address or fax number (see ADDRESSES) no later than 5 p.m.
Eastern Standard Time on February 4, 2002.
ADDRESSES: Comments on this proposed rule should be addressed to the
Chief, Endangered Species Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may
also be sent via fax to (301) 713-0376. Comments will not be accepted
if submitted via e-mail or the Internet.
FOR FURTHER INFORMATION CONTACT: Margaret Lorenz or Lamont Jackson at
(301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
NMFS is responsible for implementing the ESA, 16 U.S.C. 1531 et
seq., with respect to most threatened and endangered marine species.
NMFS' regulation at 50 CFR 222.305 prohibits the transfer of all
permits issued under section 10(a) of the ESA. While the restrictions
imposed on permit succession and transferability are well justified for
most situations (e.g., scientific research permits), they are
unnecessary and inappropriate for enhancement and incidental take
permits associated with Habitat Conservation Plans, Safe Harbor
Agreements with Assurances and Candidate Conservation Agreements with
Assurances. These permits involve substantial long-term conservation
commitments, and NMFS negotiates these permits recognizing that there
may be succession or transfer in ownership during the term of the
permit. The U.S. Fish and Wildlife Service (FWS) which also implements
the ESA, issued final regulations on June 17, 1999 (64 FR 32706),
allowing the transfer of these enhancement and incidental take permits,
provided certain conditions are met. On January 22, 2001 (66 FR 6483),
[[Page 65874]]
FWS reconfirmed its decision to allow the transfer of these specific
permits.
NMFS believes that a blanket prohibition on transferability of
incidental take permits under ESA section 10(a)(1)(B) and enhancement
permits issued for Safe Harbor Agreements with Assurances and Candidate
Conservation Agreements with Assurances under section 10(a)(1)(A) is
too constraining, given the context and purpose of these plans and
agreements. This proposed rule (revising 50 CFR 222.305) would remove
the prohibition on transferability of incidental take and enhancement
permits with respect to these named agreements. However, this proposed
rule would require NMFS to determine that the transferee has given
adequate written assurance to NMFS that it can and will fulfill the
obligations of the permit.
Description of Permits
Safe Harbor Agreements with Assurances: Under the Safe Harbor
policy, non-Federal property owners with an approved agreement will
receive assurances that additional land, water, and/or natural resource
use restrictions will not be imposed in exchange for their voluntary
conservation actions to benefit listed species covered in the
agreement. If the Agreement provides a net conservation benefit to the
covered species and the property owner meets all the terms of the
Agreement, NMFS will authorize the taking of the covered species to
enable the property owner to ultimately return the enrolled property
back to agreed upon conditions. These assurances will be provided in
the property owner's Safe Harbor Agreement and in an associated
Enhancement of Survival permit issued under section 10(a)(1)(A) of the
ESA.
Candidate Conservation Agreement with Assurances: Under this
policy, non-Federal property owners who commit, through a Candidate
Conservation Agreement with Assurances, to implement conservation
measures for a candidate or proposed species, or a species likely to
become a candidate or proposed in the near future, will receive
assurances that additional conservation measures will not be required
and additional land, water, or resource use restrictions will not be
imposed should the species become listed in the future. These
assurances will be provided in the property owner's Candidate
Conservation Agreement with Assurances and in an associated Enhancement
of Survival permit issued under section 10(a)(1)(A) of the ESA.
Habitat Conservation Plans: The development of a conservation plan
(sometimes referred to as a Habitat Conservation Plan (HCP)) is a
required element of an application for an incidental take permit, and
involves long-term conservation commitments that may ``run with the
land,'' or obligate a landowner for the life of the permit. In
negotiating such commitments, it is recognized that a succession of
owners may purchase or sell the affected property during the term of
the permit. Species covered by the conversation measures should not be
affected by the change in ownership if the successive owners agree to
be bound by the terms of the permit. Property owners are willing to
undertake these commitments if they know they can transfer their
incidental take authorization (and HCP obligations) to the purchaser.
Absent the ability to transfer the permit and thereby obtain long-term
assurances of certainty, some landowners may be unwilling to enter into
long-term commitments. For many HCPs, both FWS and NMFS issue an
incidental take permit. It is confusing and inconsistent if FWS'
permits are transferable and NMFS' permits are not.
This proposed rule would alleviate the constraints on permit
transferability to allow those who have permits associated with HCPs,
Safe Harbor Agreements with Assurances and Candidate Conservation
Agreements with Assurances the flexibility to transfer permits to
qualified purchasers, and eliminates inconsistency between the
regulations of the two agencies administering the ESA.
The proposed rule would allow transfer of these permits only so
long as the successor or transferee owners meet the general
qualifications for holding the permits and agree to the terms of the
HCP, Safe Harbor Agreement with Assurances or Candidate Conservation
Agreement with Assurances.
Description/Overview of the Revisions to Permit Regulations
Section 222.305(a) would be revised to allow transferability of
permits issued under 50 CFR parts 222, 223, and 224 where NMFS
determines the transferee has given adequate written assurance (signing
of a contract) that they can and will fulfill the obligations of the
permit.
This proposed rule does not apply to scientific research permits
issued under ESA section 10(a)(1)(A). It applies only to incidental
take permits, and enhancement permits issued under section 10(a)(1)(A)
in association with a Safe Harbor Agreement with Assurances or
Candidate Conservation Agreement with Assurances. Further, any permits
issued by NMFS for scientific research and enhancement for ESA-listed
species, including marine mammals (50 CFR 222.308 (b),(c), 216.41) are
not transferable (50 CFR 216.35), and this proposed rule will not
affect this restriction or the regulations at 50 CFR 216.41 and
222.308(b)(c). These permits are not transferable because they are part
of scientific research permits issued under section 10(a)(1)(A), and
require that the holder/principal investigator be qualified to conduct
the research and enhancement activities described in the original
application and permit.
Public Comments Solicited
NMFS requests comments on any aspect of this proposed rule. NMFS
particularly would like to hear from individuals who have experience
with FWS' rule for transferring incidental take permits.
Classification
NMFS has determined that this proposed rule is consistent with the
ESA and with other applicable laws.
National Environmental Policy Act
Since the changes in this proposed rule do not individually or
cumulatively have a significant impact on the quality of the human
environment, this proposed rule has been determined to be categorically
excluded under the National Environmental Policy Act.
Executive Order 12866
This rule has been determined to be not significant for purposes of
Executive Order (E.O.) 12866.
Regulatory Flexibility Act
This proposed rule will establish the process for transfers of
incidental take permits when a new party acquires land subject to an
existing, ongoing HCP, Safe Harbor Agreement with Assurances or
Candidate Conservation Agreement with Assurances. It will reduce the
costs to both the transferees and the agency. Currently, the transfer
of an incidental take permit or an enhancement permit to a new
landowner can be accomplished only by the new landowner submitting an
application for its own permit (using the pre-existing conservation
plan or agreement developed by the prior landowner). That permit would
then be processed by NMFS and new documents prepared to issue a new
permit would be accompanied by a simultaneous surrender of the permit
held by the prior landowner. Under this system, the time required for
processing a new permit will always result in a lapse in coverage
between the date of the acquisition of
[[Page 65875]]
the land by the new owner and the issuance of the new permit. Under
this proposed rule, the transfer process would be streamlined and
paperwork reduced. As long as the new landowner is appropriately
qualified, the permit can be transferred by a simple assignment and
assumption agreement between NMFS and the new landowner. NMFS would
save time and document preparation and processing expenses, as would
the landowner involved. This proposed rule would decrease the costs of
permit transfers on both large and small businesses alike. Thus, the
economic effects of the proposed rule will be positive.
Pursuant to the Regulatory Flexibility Act, the Chief Counsel for
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
proposed rule, if adopted, would not have a significant economic impact
on a substantial number of small entities, since the rule would reduce
cost associated with land transfers.
Paperwork Reduction Act
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection-of-information subject to the
requirements of the Paperwork Reduction Act (PRA), unless that
collection-of-information displays a currently valid Office of
Management and Budget (OMB) control number.
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the PRA. This requirement
has been submitted to OMB for approval. Public reporting burden for a
permit transfer is estimated to average 40 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
(see ADDRESSES above), and to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC.
20503 (Attention: NOAA Desk Officer).
Executive Order 13132--Federalism
Executive Order 13132 requires that agencies take into account any
federalism impacts of regulations under development. It includes
specific consultation directives for situations where a regulation will
preempt state law or impose substantial direct compliance cost on state
and local governments (unless required by statute). Neither of these
circumstances is applicable to this proposed rule.
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: December 14, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 222 is
proposed to be amended as follows:
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
1. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531 et. seq.; 16 U.S.C. 742a et. seq.; 31
U.S.C. 9701. Section 222.403 also issued under 16 U.S.C. 1361 et.
seq.
2. In Sec. 222.305, paragraph (a)(1) is revised and paragraph
(a)(3) is added to read as follows:
Sec. 222.305 Rights of succession and transfer of permits.
(a)(1) Except as otherwise provided in this section, permits issued
pursuant to parts 222, 223, and 224 of this chapter are not
transferable or assignable. In the event that a permit authorizes
certain business activities in connection with a business or commercial
enterprise, which is then subject to any subsequent lease, sale or
transfer, the successor to that enterprise must obtain a permit prior
to continuing the permitted activity, with the exceptions provided in
paragraphs (a)(2) and (a)(3) of this section.
* * * * *
(3) Permits issued under Sec. 222.307 or for an enhancement permit
issued under Sec. 222.308, as part of a Safe Harbor Agreement with
Assurances or Candidate Conservation Agreement with Assurances, 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 NMFS determines that:
(i) The proposed transferee meets all of the qualifications under
parts 222, 223, or 224 (as applicable) for holding a permit;
(ii) The proposed transferee has provided adequate written
assurances that it will provide sufficient funding for the conservation
plan or other agreement or plan associated with the permit and will
implement the relevant terms and conditions of the permit, including
any outstanding minimization and mitigation requirements; and
(iii) The proposed transferee has provided such other information
as NMFS determines is relevant to process the transfer.
* * * * *
[FR Doc. 01-31544 Filed 12-20-01; 8:45 am]
BILLING CODE 3510-22-S