HomeMy WebLinkAbout; Multiple Habitat Conservation Program (MHCP); Habitat Management Plan - Fish and Wildlife Permit and Terms and Conditions; 2004-11-12United States Department of the Interior
FISH AND WLLDLIFE SERVICE
California/Nevada ODerations Office 2800 Cottage Way,Room W-2606 Sacramento, California 95825 IN REPLY REFER TO: AESICP
NOV 12 2004
Raymond R Patchett, City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
Dear Mr Patchett:
Enclosed is a copy of your Endangered Species Act Incidental Take Permit and Implementation
Agreement for the City of Carlsbad Habitat Management Plan (HMP). Thank you for helping to
conserve listed and unlisted species. We look forward to assisting you in implementing the
HMP.
If you have any questions about this permit please contact Jim Bartel, Field Supervisor, Fish and
Wildlife Service, Carlsbad Fish and Wildlife Office, at (760) 43 1-9440.
Sincerely, c
Depdy Manager
enclosures
I
6. EFFECTIVE 11/ 12/04
DEPARTMENT OF THE INTERIOR
U S FISH AND WILDLIFE SERVICE
FEDERAL FISH AND WILDLIFE PERMIT
7. EXPIRES 11/12/54
1. PERMllTEE I
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CA 92008
USA.
8. NAME AND TITLE OF PRINCIPAL OFFICER (If #I is a business) RAYMOND R PATCHElT I CITY MANAGER
3-10
(1197
2. AUTHORITY-STATUTES
16 USC 1539(a)
16 USC 1533(d)
16 USC 703-712
50 CFR 17.22
50 CFR 17.32
50CFR 21.23and 21.27 50 CFR 13
3. NUMBER
TE022606-0
4. RENEWABLE I 5.MAYCOPY
YES
0 No
YES
ION0
9. WE OF PERMIT
THREATENED AND ENDANGERED SPECIES
110. LOCATION WHERE AUTHORIZED ACTNITY MAY BE CONDUCTED
Covered Lands as identified in Figure 1 of the Carlsbad Habitat Management Plan and as described in the Implementation Agreement. I
11. CONDITIONS AND AUTHORIZATIONS:
A. GENEFAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR 13. AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK K? ABOVE. ARE HEREBY
MADE A PART OF THIS PERMIT. ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. CONTINUED VALIDITY. OR RENEWAL, OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS, INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS.
8. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR OTHER FEDERAL LAW.
C. VALID FOR USE BY PERMITEE NAMED ABOVE.
D. Further conditions of authorization are contained in the attached Special Terms and Conditions.
U.S. FISH AND WILDLIFE SERVICE, SACRAMENTO, CALIFORNIA
SPECIAL TERMS AND CONDITIONS FOR TE-022606-0
1. All sections of Title 50 CFR 'I 13, 17.22, and 17.32 are conditions of this Permit. The current
version of these regulations is provided as Attachment 1.
2. The authorization granted by this permit is subject to compliance with, and implementation
of: the Multiple Habitat Conservation Program Plan, Volumes 1,2, and 3 (MHCP) (dated March
2003); Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP) (dated
December 1999); the HMP Addendum 1 (dated December 1999) and Addendum 2 (dated June
2003); and the executed Implementing Agreement (IA), all of which are hereby incorporated
into the permit.
3. The Permittee (City of Carlsbad), its authorized agents, and third parties under the Permittee=s
jurisdiction and control, are authorized to take HMP Covered Species in Attachment 2, subject to
the conditions in Tables 1,2, and 3 of the attachment and as further conditioned herein, to the
extent that take of these species would otherwise be prohibited under section 9 of the
Endangered Species Act of 1973, as amended (FESA), and its implementing regulations, or
pursuant to a rule promulgated under section 4(d) of FESA. Take of HMP Covered Species .
must be incidental to otherwise lawful Covered Activities on Covered Lands as defined in the IA
and further described and depicted in the HMP. The amount of take and form of take authorized
(e.g. harm, injury, or death) are described in these tables, and further clarified below.
Table 1:
No take is authorized for the 5 plant species in Table 1. Because take of plants is not
prohibited under FESA, incidental take cannot be authorized under this Permit. Plant
species included in the Permit in Special Terms and Conditions and in Table 1 are named
in recognition of the conservation benefits provided for such plants in the MHCP, HMP,
and IA, and receive those assurances identified in the MHCP, HMP, IA, and this Permit
as provided in Special Term and Condition 14.
Fully Protected Species under California Fish and Game Code may not be taken or
possessed at any time except under limited circumstances, as provided in the Fish and
Game Code. No provision of any other law shall be construed to authorize the issuance
of permits or licenses to take any Fully Protected Species. The following species in
Table 1 are Fully Protected Species: California brown pelican (Pelecanus occidentalis
californicus); American peregrine falcon (Falco peregrinus anatum); Light-footed
clapper rail (Rallus longirostris levipes); and California least tern (Sterna antillarum
brown ii) .
No take is authorized for the western snowy plover (Charadrius alexandrinus nivosus)
and elegant tern (Sterna elegans).
1
Take authorization is effective upon Permit issuance for t'he southwestern willow
flycatcher (Empidonax traillii extimus), least Bell=s vireo (Vireo bellii pusillus), and
coastal California gnatcatcher (Poloptila californica californica).
For each of the remaining 10 animal species in Table 1 which are not listed as threatened
or endangered under FESA, this Permit will become effective with respect to such
species concurrent with their listing under FESA, should they be listed during the permit
term, to the extent that their take is prohibited by FESA: 1) salt marsh skipper
(Panoquina errans); 2) Harbisons=s dun skipper (Euphyes vestris harbisoni); 3) white-
faced ibis (Plegadis chihi), 4) Cooper=s hawk (Accipiter cooperi); 5) osprey (Pandion
haliaetus); 6) yellow-breasted chat (Icteria virens); 7) California rufous-crowned sparrow
(Aimophila rujiceps cansecens); 8) BeldinFs savavnnah sparrow (Passerculus
sandwichensis beldingi); 9) large-billed savannah sparrow (P. s. rostratus), and 10)
orange-throated whiptail (Cnemidophorus hyperthrus beldingi).
Table 2:
Table 2 contains only plant species. No take is authorized for the six plant species named
in Table 2. Recognition of the conservation benefits provided for these species, and
receipt of assurances for them as identified in the MHCP, HMP, IA, and this Permit as
provided in Special Term and Condition 14, is contingent upon: (1) other MHCP
Participating Jurisdictions obtaining coverage for these six species through an existing,
legally operative incidental take permit; and (2) the Permittee demonstrating to the
Service adequate funding for management of conserved areas for San Diego thornmint
(Acanthomintha ilicifolia) and wart-stemmed ceanothus (Ceanothus verrucosus).
.
Table 3 :
Take authorization for the 2 animal species in Table 3 is contingent upon the Permittee
demonstrating to the Service adequate funding and legal access to manage and monitor
these species consistent with the requirements of the MHCP (see Volume 3).
No take of plants in Table 3 is authorized. Recognition of the conservation benefits for
these 11 plant species, and receipt of assurances for them, as identified in the MHCP,
HMP, IA, and this Permit as provided in Special Term and Condition 14, is contingent
upon: (1) the Permittee demonstrating to the Service adequate funding and legal access
to manage and monitor these 1 1 plant species consistent with the requirements of the
MHCP (see Volume 3); (2) the Permittee receiving legal control over the protection,
management, and monitoring of the vernal pools adjacent to the Poinsettia Train Station
that provide habitat for the San Diego button- celery (Eryngium aristulatum var.
parishii), little mousetail (Myosurus minimus ssp. apus), spreading navarettia (Navarettia
fossalis), and California Orcutt grass (Orcuttia californica); and (3) other MHCP
Participating Jurisdictions obtaining coverage for the San Diego marsh elder (Iva
hayesiana) through an existing, legally operative incidental take permit.
2
Take authorization for the Riverside fairy shrimp (StreptocephaZus woottoni), and San
Diego fairy shrimp (B. sandiegoensis) is contingent upon: (1) the Permittee
demonstrating to the Service adequate funding and legal access to manage and monitor
these 2 animal species consistent with the requirements of the MHCP (see Volume 3);
and (2) the Permittee receiving legal control over the protection, management, and
monitoring of the vernal pools adjacent to the Poinsettia Train Station that provide
habitat for these species.
To initiate coverage for species in Tables 2 and Table 3, the Permittee shall submit in writing a
request for coverage, including documentation of compliance with the necessary conditions of
legally operative permits by other Participating Jurisdictions, funding assurances, and/or legal
access and control. Coverage for these species shall not become effective until such time as both
the Service and California Department of Fish and Game concur in writing that these conditions
have been satisfied.
4. This FESA Section lO(a) Permit also constitutes a Special Purpose Permit under 50 C.F.R. '
2 1.27 for the take of those HMP Covered Species which are listed as threatened or endangered
under the FESA and which are also protected by the Migratory Bird Treaty Act of 191 8, as
amended (16 U.S.C. ' '703-712), in the amount andor number specified in the MHCP and HMP,
subject to the following terms and conditions. Such Special Purpose Permit shall be valid for a
period of 3 years from the effective date, provided the Section lO(a) Permit remains in effect for
such period. Such Special Purpose Permit shall be renewed upon written request to the Service,
provided that the Permittee continues to fulfill its obligations under the MHCP, HMP, IA, and
this Permit. Each such renewal shall be valid for the maximum period of time allowed by 50
C.F.R. ' 21.27 or its successor at the time of renewal.
5. In order to reduce the potential take of eggs or chicks of the coastal California gnatcatcher,
the Permittee shall not allow any clearing and grubbing activities in known and potentially
occupied coastal California gnatcatcher habitat during the breeding season which extends
inclusively from February 15 through August 3 1.
6. In order to minimize impacts to coastal California gnatcatcher, California rufous-crowned
sparrow, and orange-throated whiptail (Cnemidophorus hyperythrus beldingi) to the maximum
extent practicable, the Permittee shall ensure that if the City of Carlsbad proceeds with plans to
construct Cannon Road Reach 4, the extension of Melrose Drive through the Shelley Property, or
Manon Road through the Sherman Property, the Permittee shall consult with the Service and
California Department of Fish and Game on the preparation of a draft Environmental Impact
Report to ensure that all potential alternatives to construction of these roads are fully considered.
Any alternatives that include the construction of these roads shall meet the following standards
unless otherwise agreed to by the Service and California Department of Fish and Game due to
new information from scientific studies:
A wildlife movement study that gathers wildlife movement data for at least one
full year shall be conducted preceding the design of any road undercrossings.
Noise within the underpasses shall be less than 60 dBA during the time of day
that animals use it. Sound walls shall be considered along portions of the road
a.
b.
3
that pass over underpasses in order to reduce noise levels, as increased traffic
volume may decrease the frequency at which a species uses the underpasses.
Shield corridors from artificial lighting. Use skylight openings within the
underpass to allow for vegetative cover within the underpass.
Design underpasses or culverts to be at least 30 feet wide by 15 feet high with a
maximum 2: 1 length to width ratio. A more important variable is the openness of
the underpass, which takes into consideration the height, width, and length of the
underpass (H*W/L). The openness value shall be greater than 0.6.
Avoid co-locating human trails with wildlife movement corridors/crossings.
Underpasses shall be situated along primary travel routes away from areas
containing noise and light pollution and serve only wildlife needs since human
presence and/or recreational activities can deter wildlife activityh order to
prevent “at-grade” crossing attempts by the target species, fencing shall be
installed to complement the underpasses. Fencing shall be used to funnel wildlife
away from at-grade road crossings and toward undercrossings. Fencing shall be
at least 8 feet high (measured from the ground up) and placed along portions of
the road that bisect the natural open space to prevent end runs. Coyotes and deer
are infamous for end runs, which means they will continue to shift their
movements to go around the end of a fence instead of using an underpass.
Furthermore, the fencing shall also have mesh that is less than 10 cm x 15 cm and
be seated at least 15 cm into the ground to prevent the animals from exploiting
any weaknesses, which would allow them access to the road. Finally, the fencing
shall be installed to “funnel” the animals towards each underpass by using wing
fencing on both sides of the culvert.
Screen undercrossing openings with natural vegetation. Native vegetation shall
surround all underpass entrances and replace any proposed rock fill slope
protection.
To maximize the width of the culvert available for wildlife movement, the water
drainage area in the base of each culvert shall be as narrow as possible and placed
to the side, rather than the center. Concrete V-ditches shall be eliminated to allow
for natural stream flows, which provide the elements critical for the movement of
sensitive reptile and amphibian species.
c.
d.
e.
f.
g-
7. Before receiving coverage for thread-leaved brodiaea (BrodiaeaJilifoZia), the Permittee must
demonstrate to the satisfaction of the Service and California Department of Fish and Game, that
the Fox-Miller project meets the narrow endemic standards for this critical location and major
population of this species. The Permittee shall ensure that the proposed hardline provided in
Addendum 2 to the HMP (June 2003) in Figure 21 for the Fox-Miller property is not permitted
by the City of Carlsbad under the HMP, because it does not meet MHCP standards. The Service
and California Department of Fish and Game will consider proposals for this project to that meet
the conditions of coverage for BrodiaeaJiZifoZia. If these agencies concur with a project
proposal, and the preserve area is managed and monitored to MHCP standards in perpetuity, the
Permittee would receive coverage for BrodiaeafilifoZia and the Fox-Miller project could be
permitted, under the HMP, through the amendment process described in section 20 of the IA.
4
8. In order to minimize impacts to coastal California gnatcatcher, California rufous-crowned
sparrow, and orange-throated whiptail to the maximum extent practicable, the Permittee shall
ensure that any opportunities to maintain and/or widen a comdor of habitat between Carlsbad
and Oceanside are fully considered. This includes the Permittee upholding the City of
Carlsbad=s agreement that should the driving range adjacent to the KellyBarhnan property be
proposed for a different use, that the City will ensure an on-site corridor is established on the
driving range property.
9. As part of the review process (e.g., California Environmental Quality Act) for individual
projects within the City of Carlsbad, a qualified biologist shall survey for all species with
immediate and conditional coverage (Attachment 2, Tables 1, 2, and 3) in all potential habitat
areas.
10. The Permittee shall contact the Service’s Carlsbad Fish and Wildlife Office immediately
regarding any violations or potential violations of the FESA or Migratory Bird Treaty Act
(phone 760-43 1-9440).
1 1. Within 1 working day of finding dead, injured, or sick endangered or threatened wildlife
species, the Permittee or its designated agents shall orally notify the Service’s Carlsbad Fish and
Wildlife Office (phone 760-43 1-9440). Written notification to the Carlsbad Fish and Wildlife
Office (601 0 Hidden Valley Road, Carlsbad, California 92008) and the Division of Law
Enforcement (185 W. AF@ Street, Suite 440, San Diego, California 92101) shall be made within
5 calendar days and shall include the date, time, and location of the specimen and any other
pertinent information.
12. All monitoring and reporting for this permit shall be in compliance with the MHCP (Vol. I
and m) and IA (section 12). Annual reports are due no later than December 1 of each year,
beginning in 2005 and ending in 2054. Copies of all reports shall be submitted to the Field
Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California
92008, and to the Assistant Regional Director, Ecological Services, U.S. Fish and Wildlife
Service, 9 1 1 Northeast 1 1 th Avenue, Portland, Oregon 97232.
13. A copy of this permit must be on file with the Permittee, its authorized agents, and third
parties under the jurisdiction and direct control of the Permittee . Please refer to the permit
number in all correspondence and reports concerning permit activities. Any questions you may
have about this permit should be directed to the Field Supervisor, Carlsbad Fish and Wildlife
Office, at 760-43 1-9440.
5
14. On June 10,2004, the court in Spirit ofthe Sage Council v. Norton, Civil Action No. 98-
1873 (D. D.C.) ordered that, until the Service completes a rulemaking on revocation standards
for incidental take permits, the Service may not approve new incidental take permits or related
documents containing No Surprises assurances. The order specifically allows for the Service to
issue incidental take permits that do not contain No Surprises assurances. Therefore, the AN0
Surprises assurances contained in sections 1.10,2.3,3.26, 10.3.A.(1), 10.3.A.(4), 10.3.C,
10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the MHCP, section G of the HMP
(with Addendum l), and other applicable sections of the IA, MHCP, HMP, and of this Permit,
are currently unenforceable and ineffective with respect to this Permit. The remainder of the
Permit, the IA, the MHCP, and the HMP shall remain in full force and effect to the maximum
extent permitted by law. In addition, in the event that any future judicial decision or
determination holds that the AN0 Surprises@ assurances rule (or similar successive rule) is
vacated, held unenforceable or enjoined for any reason or to any extent, sections 1 .lo, 2.3,3.26,
10.3.A.(1), 10.3.A.(4), 10.3.C, 10.4.2.q and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the
MHCP, section G of the HMP (with Addendum l), and other applicable sections of the IA,
MHCP, HMP, and of this Permit, shall be enforceable only to the degree allowed by any such
decision or determination; provided that the remainder of the Permit, the IA, the MHCP, and the
HMP shall remain in full force and effect to the maximum extent permitted by law. In the event
that the No Surprises assurances rule is vacated, held unenforceable or enjoined by a judicial
decision or determination, including the June 10,2004, order described above, but is later
reinstated or otherwise authorized, the assurances provided under the revised rule shall
automatically apply to the MHCP, HMP, IA, and Permit in place of sections 1.10,2.3,3.26,
10.3.A.(1), 10.3.A.(4), 10.3.C, 10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the
MHCP, section G of the HMP (with Addendum l), and other applicable sections of the IA,
MHCP, HMP, and of this Permit. If, in response to any judicial decision or determination, the
“No Surprises” assurances rule is revised, sections 1.10,2.3,3.26, 10.3.A.(1), 10.3.A.(4), 10.3.C,
10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the MHCP, section G of the HMP (with
Addendum l), and other applicable sections of the IA, MHCP, HMP, and of this Permit, shall be
automatically amended in a manner consistent with the revised rule so as to afford the maximum
protection to the Permittee consistent with the revised rule. Pursuant to the June 10,2004, order
in Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D. D.C.), until the Service
adopts new revocation rules specifically applicable to incidental take permits, all incidental take
permits issued by the Service shall be subject to the general revocation standard in 50 C.F.R.
‘13.28(a)(5). Additionally, notwithstanding anything to the contrary in the IA, MHCP, and the
HMP, the Service retains statutory authority, under both sections 7 and 10 of the FESA, to
revoke incidental take permits that are found likely to jeopardize the continued existence of a
listed species.
6
If any wildlife, plant, or evidentiary item is seized and forfeited under the Endangered Species Act, 16 U.S.C. 1531 et seq., any person whose act or omis- sion was the basis for the seizure may be charged a reasonable fee for ex-
penses to the United States connected with the transfer, board, handling, or storage of such property. If any fish, wildlife or plant is seized in connection with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371, et
seq., any person convicted thereof, or assessed a civil penalty therefor, may
be assessed a reasonable fee for ex- penses of the United States connected with the storage, care and maintenance of such property. Within a reasonable time after forfeiture, the Service shall send to such person by registered or certified mail, return receipt re- quested, a bill for such fee. The bill shall contain an itemized statement of the applicable costs. together with in- structions on the time and manner of payment. Payment shall be made in ac- cordance with the bill. The recipient of any assessment of costs under this sec- tion who has an objection to the rea- sonableness of the costs described in the bill may, within 30 days of the date on which he received the bill, file writ- ten objections with the Regional Direc- tor of the Fish and Wildlife Service for the Region in which the seizure oc- curred. Upon receipt of the written ob- jections, the appropriate Regional Di- rector will promptly review them and within 30 days mail his final decision to the party who filed objections. In all cases, the Regional Director’s decision
Q 12.42
(g) If the Solicitor decides that relief should not be grankd, the Solicitor shall so notify the petitioner in writ- ing, stating in the notification the rea- sons for denying relief. The petitioner
may then file a supplemental petition, but no supplemental petition shall be
considered unless it is received within
60 days from the date of the Solicitor’s notification denying the original peti- tion.
145 FR 17864, Mar. 19, 1980, as amended at 47 FR 56861, Dec. 21, 19821
$12.42 Recovery of certain storage
costs.
40
50 CFR Ch. I (10-1-00 Edition)
shall constitute final administrative action on the matter.
[47 FR 56861, Dec. 21. 19821
Subpart F-Return of Property
9 12.51 Return procedure,
If, at the conclusion of the appro- priate proceedings, seized property is to be returned to the owner or con- signee, the Solicitor or Service shall issue a letter or other document au- thorizing its return. This letter or other document shall be delivered per- sonally or sent by registered or cer- tified mail, return receipt requested, and shall identify the owner or con- signee, the seized property. and, if ap- propriate, the bailee of the seized prop- erty. It shall also provide that upon presentation of the letter or other doc- ument and proper identification, and the signing of a receipt provided by the Service, the seized property is author- ized to be released, provided it is prop erly marked in accordance with appli- cable State or Federal requirements.
PART 13-GENERAL PERMIT PROCXDURES
Subpart A-Introduction
Sec. 13.1 General. 13.2 Purpose of regulations. 13.3 Scope of regulations. 13.4 Emergency variation from require-
13.5 Information collection requirements. ments.
Subpart 9-Application for Permits
13.11 Application procedures.
13.12 General information requirements on
Subpart C-Pennil Administration
applications for permits.
13.21 Issuance of permits. 13.22 Renewal of permits. 13.23 Amendment of permits.
13.24 Right of succession by certain persons.
13.25 Transfer of permits and scope of per- mit authorization. 13.26 Discontinuance of permit activity. 13.27 Permit suspension. 13.28 Permit revocation. 13.29 Review procedures.
Subpart D-CondMons
13.41 Humane conditions.
U.S. Fish and Wildlife Sew., Interior
13.42
13.43 13.44 13.45 13.46
13.47
13.48
13.49 13.50
Permits are specific. Alteration of permits. Display of permit. Filing of reports. Maintenance of records. Inspection requirement. Compliance with conditions of permit. Surrender of permit. Acceptance of liability.
AUTHOR~~Y: 16 U.S.C. 668a. 704, 712, 7421-1. 1382. 1538(d), 1539, 1540(f), 3374, 49014916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR 15683; 31 U.S.C. 9701.
SOURCE: 39 FR 1161, Jan. 4, 1974. unless oth- erwise noted.
Subpart A-Introduction
913.1 General.
Each person intending to engage in an activity for which a permit is re- quired by this subchapter B shall, be- fore commencing such activity, obtain a valid permit authorizing such activ- ity. Each person who desires to obtain the permit privileges authorized by this subchapter must make application for such permit in accordance with the requirements of this part 13 and the other regulations in this subchapter which set forth the additional require- ments for the specific permits desired. If the activity for which permission is sought is covered by the requirements of more than one part of this sub: chapter, the requirements of each part must be met. If the information re- quired for each specific permitted ac- tivity is included, one application will be accepted for all permits required, and a single permit will be issued.
9 13.2 Purpose of regulations.
The regulations contained in this part provide uniform rules, conditions, and procedures for the application for and the issuance, denial, suspension, revocation, and general administration of all permits issued pursuant to this subchapter B.
[54 FR 38147. Sept. 14. 19891
0 13.3 Scope of regulations.
The provisions in this part are in ad- dition to, and are not in lieu of, other permit regulations of this subchapter and apply to all permits issued there- under, including “Import and Mark- ing” (part 14), “Feather Imports” (part
41
Q 13.5
15), “Injurious Wildlife” (part 16). “En- dangered Wildlife and Plants” (part 17), “Marine Mammals” (part 18). “Migra- tory Birds” (part 211, “Eagles” (part 22) and “Endangered Species Convention” (part 23). As used in this part 13, the term “permit” shall refer to either a li- cense, permit, or certificate as the con- text may require.
142 FR 10465. Feb. 22, 1977, as amended at 42 FR 32377, June 24, 19Tl; 45 FR 566‘73, Aug. 25,
19801
913.4 Emergency variation from rei-
The Director may approve variations from the requirements of this part when he finds that an emergency exists and that the proposed variations will not hinder effective administration of this subchapter B, and will not be un- lawful.
913.5 Information collection require-
(a) The Office of Management and Budget approved the information col- lection requirements contained in this part 13 under 44 U.S.C. and assigned OMB Control Number 1018-00%?. The Service may not conduct or sponsor, and you are not required to respond, to a collection of information unless it displays a currently valid OMB control number. We are collecting this infor- mation to provide information nec- essary to evaluate permit applications. We will use this information to review permit applications and make deci- sions, according to criteria established in various Federal wildlife consems tion statutes and regulations, on the issuance, suspension, revocation, or de- nial permits. You must respond to ob- tain or retain a permit. (b) We estimate the public reporting burden for these reporting require- ments to vary from 15 minutes to 4 hours per response, with an average of
0.803 hours per response, including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the forms. Direct com- ments regarding the burden estimate or any other aspect of these reporting requirements to the Service Informa- tion Collection Control Officer, MS-222 ARLSQ, U.S. Fish and Wildlife Service. Washington, DC 20340, or the Office of
quirementa
ments.
g13.11
Management and Budget, Paperwork Reduotion Project (1018-0092), Wash-
ington,w=.
'tss aap?sS, O"t. 1.1m1
's~bpari B-Application for Permits
*'>, . . L
I1811 Application procedures.
The Service may not issue a permit for any activity authorized by this sub- chapter B unless the applicant has filed an application in accordance with the following procedures. Applicants do not have to submit a separate application for each permit unless otherwise re- quired by this subchapter. (a) Forms. Applications must be sub- mitted in writing on a Federal Fish and Wildlife LicensePermit Applica- tion (Form 3-200) or as otherwise spe- cifically directed by the Service. (b) Forwarding instructions. Applica- tions for permits in the following cat- egories should be forwarded to the issuing office indicated below.
(1) Migratory bird banding permits (50 CFR 21.22)-Bird Banding Labora- tory, Office of Migratory Bird Manage- ment, U.S. Fish and Wildlife Service, Laurel, Maryland 20708. (Special appli- cation forms must be used for bird banding permits. They may be obtained by writing to the Bird Banding Labora-
tory). (2) Exception to designated port (50 CFR part 14), importlexport license (50 CFR 14.93), migratory bird permit, other than banding (50 CFR part 21) and Bald or Golden eagle permits (50 CFR part 22bAssistant Regional Di- rector for Law Enforcement of District in which the applicant resides (see 50 CFR 10.22 for addresses and boundaries of the Law Enforcement Districts). (3) Feather quota (50 CFR part 15). in- lurious wildlife (50 CFR part 16), endan- gered and threatened species (50 CFR part 17). marine mammal (50 CFR part 18) and permits and certificates for the Convention on International Trade in Endangered Species (CITES) (50 CFR part 23FU.S. Fish and Wildlife Serv- ice, Federal Wildlife Permit Offlce, P.O. Box 3654, Arlington, Virginia 22203. (c) Time notice. The Service will proc- ess all applications as quickly as pos- sible. However, it cannot guarantee final action within the time limits the
Type d permit
ImporVExpori license (Section 14.93) ................ Marine Mamfml (Section 18.31) ......................... Migratory Birdganding or Marking (21.22) ......... Bald or Golden Eagles (Pari 22) .........................
50 CFR Ch. I (10-1-00 Editlon)
applicant requests. Applicants for en- dangered species and marine mammal permits should submit applications to the Office of Management Authority which are postmarked at least 90 cal- endar days prior to the requested effec- tive date. Applicants for all other per- mits should submit applications to the issuing office which are postmarked at least 60 days prior to the requested ef- fective date. (d) Fees. (1) Unless otherwise exempt- ed by this paragraph, applicants for issuance or renewal of permits must pay the required permit processing fee at the time of application. Applicants should pay fees by check or money order made payable to "U.S. Fish and Wildlife Service." The Service will not refund any applicatioh fee under any circumstances if the Service has proc- essed the application. However, the Service may return the application fee if the applicant withdraws the applica- tion before the Service has signifi- cantly processed it. (2) Except as provided in paragraph (d)(4) of this section the fee for proc- essing any application is S25.00. If regu- lations in this subchapter require more than one type of permit for an activity, and the permits are issued by the same office, the issuing office may issue one consolidated permit authorizing the activity. The issuing office may charge only the highest single fee for the ac- tivity permitted. (3) A fee shall not be charged to any Federal, State or local government agency, nor to any individual or insti- tution under contract to such agency for the proposed activities. The fee may be waived or reduced for public in- stitutions (see 50 CFR 10.12). Proof of such status must accompany the appli- cation. (4) Nonstandard fees.
F+3E¶
$50. $100. None. None.
U.S. Ash and Wildlife Sew., Interior
applicant fails to supply the correct in- formation to complete the application or to pay the required fees within 45 calendar days of the date of notifica- tion, the Service will consider the ap- plication abandoned. The Service will not refund any fees for an abandoned application.
[47 F'R 30785, July 15, 1982, as amended at 50 FR 52889, Dec. 28, 1985; 54 FR 4031, Jan. 27,
1989; 54 FR 38147, Sept. 14, 1989 61 FR 31868, June 21.19961
013.12 General information require- menta on applications for permits.
(a) General information required for all applications. All applications must contain the following information:
. (1) Applicant's full name, mailing ad- dress, telephone number(s), and, (i) If the applicant is an individual, the date of birth, height, weight, hair color, eye color, sex, and any business or institutional affiliation of the appli- cant related to the requested permitted activity; or (ii) If the applicant is a corporation, firm, partnership, association, institu- tion, or public or private agency, the name and address of the president or principal officer and of the registered agent for the service of process; (2) Location where the requested per- mitted activity is to occur or be con- ducted; (3) Reference to the part@) and sec- tion@) of this subchapter B as listed in paragraph (b) of this section under which the application is made for a permit or permits, together with any additional justification, including sup- porting documentation as required by the referenced part@) and section(s); (4) If the requested permitted activ- ity involves the import or re-export of wildlife or plants from or to any for- eign country, and the country of ori- gin, or the country of export or re-ex-
port restricts the taking, possession, transportation, exportation, or sale of wildlife or plants, documentation as in- dicated in $14.52(c) of this subchapter B; (5) Certification in the following lan-
gnage:
I hereby certify that I have read and am fa- miliar with the regulations contained in title 50. part 13, of the Code of Federal Regu- lations and the other applicable parts in sub-
§ 13.12
chapter B of chapter I of title 50, Code of Federal Regulations, and I further certify that the information submitted in this appli- cation for a permit is complete and accurate to the best of my knowledge and belief. I un- derstand that any false statement herein may subject me to suspension or revocation of this permit and to the criminal penalties of 18 U.S.C. 1001.
(6) Desired effective date of permit except where issuance date is Tied by the part under which the permit is issued; (7) (8) Date; Signature of the applicant; and
(9) Such other information as the Di- rector determines relevant to the proc- essing of the application. (b) Additional information required on permit applications. As stated in pars- graph (a)(3) of this section certain ad- ditional information is required on all applications. These additional require- ments may be found by referring to the section of this subchapter B cited after the type of permit for which applica- tion is being made:
Type of permit
impomtion at nonda@Wed ports: sdenwic ....................................................... Deterioration prevention ............................... Economic hardahp .................... Marking of package or mntAn(H: symbor making ......................... importlexpori license .................................... Feather hnpott quok importation or entry ......... injurious wildlife: impomtbn or shipment ........... Endangamd wi- and plant permils: Similarity of appearance ............................... SdentiRc, enhancement d propagation or survival, indental taking for wildlife ........ sdentitic. lan(s
EwmC hardship tor planfs .......................
Similarity d appearam ............................... Genaral for wadlifs .......................................
American awigator4uyer or tanner .............. General for plants ......................................... Marine mammala permits: sdenwicresearch Public display ....... Migratory bird perm&
Emnanicm ........
Threatened Wadh and plant permits:
....................................... ....................................... Watertowl sale and dispossr ........................
spacial avicullumt ........................................ special purpose ............................................ Falconry ........................................................ Raptor propagabn permit ........................... oepredatioll contml ......................................
SCientiRc or exhibitbn Indian di use ...................................... Depradatron wntrol ...................................... Falconry plrposss ........................................
Eagr, permils: ................... ; ..............
14.31 14.32 14.33
14.83 14.93 15.21 1622
17.52
17.22 17.62 1723 17.63
17.52 17.32 17.42(a) 17.72
18.31 18.31
21.22 21 23 21 24 21.25 21.26 21.27 21 28 21.30 21.41
2221 2222 PP 2224
if
42 43
6 13.21
Tvpe of permit I section
Take of golden eagle nests _______.______..__........
Endangered Species Convention permits ____._..._. 22.25 23.1 5
[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
10465, Feb. 22, 1977; 42 FR 32377. June 24, 1977:
44 FR 54006, Sept. 17, 1979; 44 FR 59083, Oct. 12, 1979; 45 FR 56673, Aug. 25, 1980; 45 FR 78154,
Nov. 25, 1980; 46 FR 42680, Aug. 24, 1981; 48 FR 31607, July 8. 1983: 48 FR 57300, Dec. 29, 1983; 50 FR 39687, Sept. 30, 1985; 50 FR 45408, Oct.
31, 1985; 54 FR 38147, Sept. 14, 19891
Subpart C-Permit Administration
5 13.21 Issuance of permits.
(a) No permit may be issued prior to the receipt of a written application therefor, unless a written variation from the requirements, as authorized by $ 13.4, is inserted into the official file of the Bureau. An oral or written rep- resentation of an employee or agent of the United States Government, or an action of such employee or agent, shall not be construed as a permit unless it meets the requirements of a permit as defined in 50 CFR 10.12. (b) Upon receipt of a properly exe- cuted application for a permit, the Di- rector shall issue the appropriate per- mit unless:
(1) The applicant has been assessed a civil penalty or convicted of any crimi- nal provision of any statute or regula- tion relating to the activity for which the application is filed, if such assess- ment or conviction evidences a lack of responsibility.
(2) The applicant has failed to dis- close material information required, or has made false statements as to any material fact, in connection with his application; (3) The applicant has failed to dem- onstrate a valid justification for the permit and a showing of responsibility;
(4) The authorization requested po- tentially threatens a wildlife or plant population, or (5) The Director finds through fur- ther inquiry or investigation, or other- wise, that the applicant is not quali- fied. (c) Disqualifying factors. Any one of the following will disqualify a person from receiving permits issued under this part.
50 CFR Ch. I(10-1-00 Edition)
(1) A conviction, or entry of a plea of guilty or nolo contendere, for a felony violation of the Lacey Act, the Migra- tory Bird Treaty Act, or the Bald and Golden Eagle Protection Act disquali- fies any such person from receiving or exercising the privileges of a permit, unless such disqualification has been expressly waived by the Director in re- sponse to a written petition. (2) "he revocation of a permit for reasons found in $13.28 (a)(l) or (a)(2) disqualifies any such person from re- ceiving or exercising the privileges of a similar permit for a period of five years from the date of the final agency deci- sion on such revocation. (3) The failure to pay any required fees or assessed costs and penalties, whether or not reduced to judgement disqualifies such person from receiving or exercising the privileges of a permit as long as such moneys are owed to the United States. This requirement shall not apply to any civil penalty pres- ently subject to administrative or judi- cial appeal; provided that the pendency of a collection action brought by the United States or its assignees shall not constitute an appeal within the mean- ing of this subsection. (4) The failure to submit timely, ac- curate, or valid reports as required may disqualify such person from re- ceiving or exercising the privileges of a permit as long as the deficiency exists.
(d) Use of supplemental information. The issuing officer, in making a deter- mination under this subsection, may use any information available that is relevant to the issue. This may include any prior conviction, or entry of a plea of guilty or nolo contendere, or assess- ment of civil or criminal penalty for a violation of any Federal or State law or regulation governing the permitted activity. It may also include any prior permit revocations or suspensions, or any reports of State or local officials. The issuing officer shall consider all relevant facts or information available, and may make independent inquiry or investigation to verify information or substantiate qualifications asserted by the applicant. (e) Conditions of issuance and accept- ance. (1) Any permit automatically in- corporates within its terms the condi- tions and requirements of subpart D of
44
U.S. Flsh and Wlldllfe Sew.. Interior
this part and of any part(s) or sec- tion(s) specifically authorizing or gov- erning the activity for which the per- mit is issued. (2) Any person accepting and holding a permit under this subchapter B ac- knowledges the necessity for close reg- ulation and monitoring of the per- mitted activity by the Government. By accepting such permit, the permittee consents to and shall allow entry by agents or employees of the Service upon premises where the permitted ac- tivity is conducted at any reasonable hour. Service agents or employees may enter such premises to inspect the lo- cation; any books, records, or permits required to be kept by this subchapter B; and any wildlife or plants kept under authority of the permit. (f) Term of permit. Unless otherwise modified, a permit is valid during the period specified on the face of the per- mit. Such period shall include the ef- fective date and the date of expiration. (g) Denial. The issuing officer may deny a permit to any applicant who fails to meet the issuance criteria set forth in this section or in the part@) or section(s) specifically governing the activity for which the permit is re- quested.
[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
323T7, June 24, 1977; 47 FR 30785, July 15. 1982; 54 FR 38148, Sept. 14, 19891
0 13.22 Renewal of permits.
(a) Application for renewal. Applicants for renewal of a permit must submit a written application at least 30 days prior to the expiration date of the per- mit. Applicants must certify in the form required by $13.12(a)(5) that all statements and information in the original application remain current and correct, unless previously changed or corrected. If such information is no longer current or correct, the applicant must provide corrected information. (b) Renewal criteria. The Service shall issue a renewal of a permit if the appli- cant meets the criteria for issuance in 113.21(b) and is not disqualified under
§13.21(c). (c) Continuation of permitted activity.
Any person holding a valid, renewable permit, who has complied with this aection, may continue the activities authorized by the expired permit until
46
§ 1324
the Service haa acted on such person's application for renewal.
(d) Denial. The issuing officer may deny renewal of a permit to any appli- cant who fails to meet the issuance cri- teria set forth in $13.21 of this part, or in the part@) or section@) specifically governing the activity for which the renewal is requested.
154 FR 38148, Sept. 14,1989l
Q 13.23 Amendment of permits.
(a) Permittee's request. Where cir- cumstances have changed so that a per- mittee desires to have any condition of his permit modified, such permittee must submit a full written justiflca- tion and supporting information in conformity with this part and the part, under which the permit was issued.
(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 requirementa of
§17.22(b)(5), (c)(5) and (d)(5) or $17.32(b)(5), (c)(5) and (d)(5) of this sub- chapter, respectively. (c) Change of name or address. A per- mittee is not required to obtain a new permit if there is a change in the legal individual or business name, or in the mailing address of the permittee. A permittee is required to notify the issuing office within 10 calendar days of such change. This provision does not authorize any change in location of the conduct of the permitted activity when approval of the location is a qualifying condition of the permit.
[54 FR 38148, Sept. 14, 1989. as amended at 64 FR 32'711, June 17,19991
013.!24 Right of succession by certain
(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 per- sons are the following:
(1) The surviving spouse, child, ex- ecutor, administrator, or other legal
pereons.
5 13.25
representative of a deceased permittee; or (2) A receiver or trustee in bank- ruptcy or a court designated assignee for the benefit of creditors.
(b) In order to qualify for the author- ization 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 suc- cessor 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 determina- tion by the Service that: (1) The successor meets all of the qualifications under this part for hold- ing a permit;
(2) The successor has provided ade- quate written assurances that it will provide sufficient funding for the con- servation plan or Agreement and will implement the relevant terms and con- ditions of the permit, including any outstanding minimization and mitiga- tion requirements; and (3) The successor has provided such other information as the Service deter- mines is relevant to the processing of the request.
[64 FR 32711, June 1'7,19991
813.26 "ranefer of pedb and scope
(a) Except as otherwise provided for in this section, permits issued under this part are not transferable or assign-
able. (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 sub- mission by the permittee and the pro- posed transferee, or in the case of a de- ceased pennittee, the deceased permit- tee's legal representative and the pro- posed 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 pro- vided adequate written assurances that
it will provide sufficient funding for the conservation plan or Agreement and will implement the relevant terms
of permit authorization.
50 CFR Ch. I (10-1-00 Edltion)
and conditions of the permit, Including any outstanding minimization and mitigation requirements; and (3) The proposed transferee has pro- vided 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 per- mittee, or who is employed by or under contract to the permittee for purposes authorized by the permit, may cam out the activity authorized by the per- mit.
(d) In the case of permits issued under 5 17.22(bj(d) or 3 17.32( bHd) of this subchapter to a State or local gov- ernmental entity, a person is under the direct control of the permittee where: (1) The person is under the jurisdic- tion of the permittee and the permit provides that such person(s) may cam out the authorized activity; or (2) The person has been issued a per- mit by the governmental entity or has executed a written instrument with the governmental entity, pursuant to the terms of the implementing agreement.
[64 FR 32711. June 17, 1999, as amended at 6( FR 52676, Sept. 30, 19991
8 1338 Discontinuance of permit activq
When a permittee, or any successol to a permittee as provided for by 413.24 discontinues activities authorized by permit, the permittee shall within 3(1 calendar days of the discontinuance re turn the permit to the issuing office tQ gether with a written statement sup rendering the permit for cancellation The permit shall be deemed void cancelled upon its receipt by thc issuing office. No refund of any feer paid for issuance of the permit or fOl any other fees or costs associated wia a permitted activity shall be madl when a permit is surrendered for Cap cellation for any reason prior to the eX piration date stated on the face of tbl permit. I
[54 FR 38149, Sept. 14, 19891
0 13.27 Permit 8uspeosion.
(a) Criteria for suspension. The prid leges of exercising some or all of tb permit authority may be suspended il
ity.
46
US. Fish and Wildlife Sew., Interior
any time if the permittee is not in compliance with the conditions of the permit, or with any applicable laws or regulations governing the conduct of the permitted activity. The issuing of- ficer may also suspend all or part of the privileges authorized by a permit if the permittee fails to pay any fees, penalties or costs owed to the Govern- ment. Such suspension shall remain in effect until the issuing officer deter- mines that the permittee has corrected
the deficiencies. @) Procedure for suspension. (1) When the iasuing officer believes there are valid grounds for suspending a permit the permittee shall be notified in writ-
inp of the proposed suspension by cer- tified or registered mail. This notice ahall identify the permit to be sus- pended, the reason(s) for such suspen- sion, the actions necessary to correct the deficiencies, and inform the per- mittee of the right to object to the pro- posed suspension. The issuing officer my amend any notice of suspension at
my time. (2) Upon receipt of a notice of pro- posed suspension the permittee may file a written objection to the proposed ; rction. Such objection must be in writ- ; hg, must be filed within 45 calendar fdays of the date of the notice of pro- ,possl, must state the reasons why the 6 permittee objects to the proposed sus- b pension, and may include supporting
t documentation. (3) A decision on the suspension shall i be made within 45 days after the end of !the objection period. The issuing offi- k~8r shall notify the permittee in writ- ihg of the Service's decision and the a mons therefore. The issuing officer tall also provide the applicant with b the information concerning the right It0 request reconsideration of the deci- pion under $13.29 of this part and the Ppocedures for requesting reconsider-
FFt 38149, Sept. 14, 19891
ermit revocation.
eTia for revocation. A permit revoked for any of the fol-
The permittee willfully violates Federal or State statute or regula- or any Indian tribal law or regu- n, or any law or regulation of any
47
Q 13.28
foreign country, which involves a vio- lation of the conditions of the permit or of the laws or regulations governing the permitted activity; or
(2) The permittee fails within 60 da.~ to correct deficiencies that were the cause of a permit suspension; or
(3) The permittee becomes disquali- fied under 4 13.21(c) of this part; or
(4) A change occurs in the statute or regulation authorizing the permit that prohibits the continuation of a permit issued by the Service; or (5) Except for Permits issued under
§ 17.22(b) through ' (d) or P 17.Wb) through (d) of this subchapter, the pop ulation(s1 of the wildlife or plant that is the subject of the permit declines to the extent that continuation of the permitted activity would be detri- mental to maintenance or recovery of the affected population.
(b) Procedure for revocation. (1) When the issuing officer believes there are valid grounds for revoking a pennit. the permittee shall be notified in writ- ing of the proposed revocation by cer- tified or registered mail. This notice shall identify the permit to be revoked, the reason(s) for such revocation, the proposed disposition of the wildlife. if any, and inform the permittee of the right to object to the proposed revoca- tion. The issuing officer may amend any notice of revocation at any time. (2) Upon receipt of a notice of pro- posed revocation the permittee may file a written objection to the proposed action. Such objection must be in writ-
ing, must be filed within 45 calendar days of the date of the notice of pro- posal, must state the reasons why the permittee objects to the proposed rev- ocation, and may include supporting documentation. (3) A decision on the revocation shall be made within 45 days after the end of the objection period. The issuing offi- cer shall notify the permittee in writ- ing of the Service's decision and the reasons therefore, together with the in- formation concerning the right to re- quest and the procedures for requesting reconsideration.
(4) Unless a permittee fiies a timely request for reconsideration, any wild- life held under authority of a permit that is revoked must be disposed of in accordance with instructiona of the
-
9 13.29
issuing officer. If a permittee files a timely request for reconsideration of a proposed revocation, such permittee may retain possession of any wildlife held under authority of the permit until final disposition of the appeal process.
154 FR 38149, Sept. 14, 1989, as amended at 64 FR 32711, June 17, 19991
4 13.29 Review procedures.
(a) Request for reconsideration. Any person may request reconsideration of an action under this part if that person is one of the following: (1) An applicant for a permit who has received written notice of denial; (2) An applicant for renewal who has received written notice that a renewal is denied; (3) A permittee who has a permit amended, suspended, or revoked, ex- cept for those actions which are re- quired by changes in statutes or regu- lations, or are emergency changes of limited applicability for which an expi- ration date is set within 90 days of the permit change; or
(4) A permittee who has a Permit issued or renewed but has not been granted authority by the permit to per- form all activities requested in the ap- plication, except when the activity re- quested is one for which there is no lawful authority to issue a permit. (b) Method of requesting reconsider- ation. Any person requesting reconsid- eration of an action under this part must comply with the following cri- teria: (1) Any request for reconsideration must be in writing, signed by the per- son requesting reconsideration or by the legal representative of that person, and must be submitted to the issuing officer. (2) The request for reconsideration must be received by the issuing officer within 45 calendar days of the date of notification of the decision for which reconsideration is being requested. (3) The request for reconsideration shall state the decision for which re- consideration is being requested and shall state the reason@) for the recon- sideration, including presenting any new information or facts pertinent to the issue(s) raised by the request for reconsideration.
50 CFR Ch. I (10-1-00 Editlon)
(4) The request for reconsideration shall contain a certification in sub- stantially the same form as that pro vided by S13.1XaK5). If a request for re- consideration does not contain such certification, but is otherwise timely and appropriate, it shall be held and the person submitting the request shall be given written notice of the need to submit the certification within 15 cal. endar days. Failure to submit certifi- cation shall result in the request being rejected as insufficient in form and content. (c) Inquiry by the Service. The Service may institute a separate inquiry into the matter under consideration.
(d) Determination of grant OT denial oj a request for reconsideration. The issuing officer shall notify the permittee of the Service's decision within 45 days of the receipt of the request for reconsider- ation. This notification shall be in writing, shall state the reasons for the decision, and shall contain a descrip tion of the evidence which was relied upon by the issuing officer. The notifi- cation shall also provide information concerning the right to appeal, the offi- cial to whom an appeal may be ad- dressed, and the procedures for making an appeal. (e) Appeal. A person who has received an adverse decision following submis- sion of a request for reconsideration may submit a written appeal to the Re- gional Director for the region in which the issuing office is located, or to the Director for offices which report di- rectly to the Director. An appeal must be submitted within 45 days of the date of the notification of the decision on the request for reconsideration. The appeal shall state the reason(s) and issue(s) upon which the appeal is baaed and may contain any additional evi- dence or arguments to support the ap peal.
(f) Decision on appeal. (1) Before a de- cision is made concerning the appeal the appellant may present oral arm ments before the Regional Director or the Director, as appropriate, if such of- ficial judges oral arguments are nee- essary to clarify issues raised in tho written record. (2) The Service shall notify the appel- lant in writing of its decision within 45 calendar days of receipt of the appeal,
48
U.S. Fish and Wildlife Sew., interior
unless extended for good cause and the appellant notified of the extension. (3) The decision of the Regional Di- rector or the Director shall constitute the final administrative decision of the Department of the Interior.
[54 FR 38149, Sept. 14. 19891
Subpart D-Conditions
113.41 Humane conditioae.
Any live wildlife possessed under a permit must be maintained under hu- mane and healthful conditions.
f54 FR 38150, Sept. 14,19891
813.42 Permite are specific.
The authorizations on the face of a permit which set forth specific times, dates, places, methods of taking, num- bers and kinds of wildlife or plants, lo- cation of activity, authorize certain circumscribed transactions, or other- wise permit a specifically limited mat- ter, are to be strictly construed and shall not be interpreted to permit simi- lar or related matters outside the scope of strict construction.
P9 FFt 1161, Jan. 4, 1974,
S377, June 24,197'71 as amended at 42 FR
I 13.4 Alteration of permita.
Penpits shall not be altered, erased, or mutilated, and any permit which haa been altered, erased, or mutilated shall immediately become invalid. Un- less specifically permitted on the face thereof, no permit shall be copied, nor shall any copy of a permit issued pur- want to this subchapter B be dis- played, offered for inspection, or other- wilse used for any official purpose for which the permit was issued.
f 13.44 Display of permit.
Any permit issued under this part shall be displayed for inspection upon request to the Director or his agent, or to any other person relying upon its existence.
il3.45 Filing of reports.
Permittees may be required to file repod of the activities conducted under the permit. Any such reports
ahall be filed not later than March 31
49
§ 13A8
for the preceding calendar year ending December 31, or any portion thereof. during which a permit was in force, M-
less the regulations of this subchapter B or the provisions of the permit set forth other reporting requirements.
5 13.46 Maintenance of recorda.
From the date of issuance of the per- mit, the permittee shall maintain com-
plete and accurate records of any tak- ing, possession. transportation, sale, purchase, barter, exportation, or im- portation of plants obtained from the wild (excluding seeds) or wildlife pursu- ant to such permit. Such records shall be kept current and shall include names and addresses of persons with whom any plant obtained from the wild (excluding seeds) or wildlife has been purchased, sold, bartered, or otherwise
transferred, and the date of such trm- . action, and such other information aa may be required or appropriate. Such records shall be legibly written or re- producible in English and shall be maintained for five years from the date of expiration of the permit.
[39 FR 1161, Jan. 4.1974, as amended at 42 FR
32377. June 24,1977; 54 FR 38150, Sept. 14,19891
8 13.47 Inepection requirement.
Any person holding a permit under ' this subchapter B shall allow the Di- rector's agent to enter his premises at any reasonable hour to inspect any wildlife or plant held or to inspect, audit, or COPY any permits, books, or records required to be kept by regula- tions of this subchapter B.
[39 FR 1161, Jan. 4, 1974, as amended at 4 FR 32377. June 24.19771
413.48 Compliance with conditioaa of
Any person holding a permit under
subchapter B and any person acting under authority of such permit must comply with all conditions of the per- mit and with all appllicable lam and regulations governing the permitted activity.
[54 FR 38150, Sept. 14,19891
permit.
13.49
5 13.49 Surrender of permit.
Any person holding a permit under subchapter B shall surrender such per- mit to the issuing officer upon notifi- cation that the permit has been sus- pended or revoked by the Service, and all appeal procedures have been ex- hausted.
[54 FR 38150, Sept. 14, 19891
5 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.
[ffl FR 32711, June 17,19991
PART 14--IMPORTATION, EXPOR- TATION, AND TRANSPORTATION OF WILDLIFE
Subpart A-Introduction
Sec.
14.1. Purpose of regulations.
14.2 Scope of regulations.
14.3 Information collection requirements. 14.4 What terms do I have to understand?
Subpart B-Importation and Exportation at Designated Po*
14.11 General restrictions.
14.12 Designated ports.
14.13 Emergency diversion. 14.14 In-transit shipments.
14.15 Personal baggage and household ef-
14.16 Border ports.
14.17 Personally owned pet birds.
14.18 Marine mammals.
14.19 Special ports. 14.20 Exceptions by permit. 14.21 Shellfish and fishery products.
14.22 Certain antique articles. 14.23 Live farm-raised fish and farm-raised
14.24 Scientific specimens.
fects.
fish eggs.
Subpart C-Designated Port Exceptlon Permlts
14.31 Permits to import or export wildlife at nondesignated port for scientific pur- poses. 14.32 Permits to import or export wildlife at nondesignated port to minimize deterio- ration or loss.
50 CFR Ch. I (10-1-00 Edition)
14.33 Permits to import or export wildlife at nondesignated port to alleviate undue
economic hardship.
Subpart D [Resewed]
Subpart E-Inspection and Clearance of Wildllfe
14.51 Inspection of wildlife.
14.52 Clearance of imported wildlife. 14.53 Detention and refusal of clearance. 14.54 Unavailability of Service officers. 14.55 Exceptions to clearance requirements.
Subpart F-Wildlife Declarotlons
14.61 Import declaration requirements.
14.62 Exceptions to import declaration re-
14.63 Export declaration requirements.
14.64 Exceptions to export declaration re-
quirements.
quirements.
Subpart G [Resewed]
Subpart H-Marking of Containers or Packages
14.81 Marking requirement.
14.82 Alternatives and exceptions to the marking requirement.
Subpart I-import/Export Ucenser
14.91 License requirement.
14.92 Exceptions to license requirement. 14.93 License application procedure, COndi-
14.94 What fees apply to me?
Subpart J-Standards for the Humane and Heatthtul Transport of Wild Mammdr and Blrds to the United States
tions, and duration.
14.101 14.102
14.103
14.104
14.105
14.106
14.107 14.108
14.109
14.110
14.111
14.112
Purposes. Definitions. Prohibitions. Translations. Consignment to carrier. Primary enclosures. Conveyance. Food and water. Care in transit. Terminal facilities. Handling. Other applicable provisions.
SPECIFICATIONS FOR NONHUMAN PRIMATES
14.121 Primary enclosures. 14.122 Food and water.
14.123 Care in transit.
SPECIFICATIONS FOR MARINE MAMMAL!
(CETACEANS, SIRENIANS. SEA OTlTJU
PINNIPEDS, AND POLAR BEARS)
14.131 Primary enclosures.
US. Fish and Wildlife Sew.. interior
14.132 Food and water.
14.133 Care in transit.
SPECIFICATIONS FOR ELEPHANTS AND UNGULATES
14.141 Consignment to carrier. .
14.142 Primary enclosures.
SPECIFICATIONS FOR SLOTHS, BATS, AND FLYING LEMURS (CYNOCEPHALIDAE)
14.151 Primary enclosures.
MAMMALS
14.161 Primary enclosures.
SPECIFICATIONS FOR OTHER TERRESTRIAL
SPECIFICATIONS FOR BIRDS
14.171 Consignment to carrier. 14.18 Primary enclosures.
AUTHORITY: 16 U.S.C. 668. 704. 712, 1382, 1538(dt(D, 1540(f), 33713378, 4223-4244, and
4901-9916: 18 U. S.C. 42: 31 U. S.C. 9701.
SOURCE: 45 FR 56673, Aug. 25, 1980. unless otherwise noted.
Subpart A-Introduction
0 14.1 Purpose of regulations.
The regulations contained in this part provide uniform rules and proce- dures for the importation, exportation, and transportation of wildlife.
0 14.2 Scope of regulations.
The provisions in this part are in ad- dition to, and do not supersede other regulations of this subchapter B which may require a permit or prescribe addi- tional restrictions or conditions for the importation, exportation, and trans- portation of wildlife.
014.3 Information collection require-
The Office of Management and Budg- et approved the information collection requirements contained in this part 14 under 44 U.S.C. 3507 and assigned OMB Control Number 1018-0092. The Service may not conduct or sponsor, and you are not required to respond, to a collec- tion of information unless it displays a currently valid OMB control number. We are collecting this information to provide information about wildlife im- ports or exports, including product and parts, and to facilitate enforcement of the Endangered Species Act of 1973 as amended (16 U.S.C. 1531 et seq.) and to carry out the provisions of the conven-
mente.
Q 14A
tion on International Trade in Endan- gered Species of Wild Fauna and Flora. We estimate the public reporting bur- den for these reporting requirements to vary from 10 to 15 minutes per re- sponse. Direct comments regarding the burden estimate or any other aspect of these reporting requirements to the Service Information Collection Control Officer, MS-222 ARLSQ, U.S. Fish and Wildlife Service, Washington, DC 20240, or the Office of Management and Budg- et, Paperwork Reduction Project (1018- 0092). Washington, DC 20603.
163 FR 52634, Oct. 1, 19981
$14.4 What terma do I have to under-
In addition to definitions contained in part 10 of this subchapter, in this part:
Accompanying personal baggage means all hand-carried items and all checked baggage of a person entering into or de- parting from the United States. Accredited scientist means any indi- vidual associated with, employed by, or under contract to and accredited by an accredited scientific institution for the purpose of conducting biological or medical research, and whose research activities are approved and sponsored by the scientific institution granting accreditation.
Accredited scientific institutions means any public museum, public zoological park, accredited institution of higher education, accredited member of the American Zoo and Aquarium Associa- tion, accredited member of the Amer- ican Association of Systematic Collec- tions, or any State or Federal govern- ment agency that conducts biological or medical research. Commercial means related to the of- fering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to quantity or weight. There is a presumption that eight or more similar unused items are for com- mercial use. The Service or the im- porterlexporterfowner may rebut this presumption based upon the particular facts and circumstances of each case.
stand?
50 51
Q 17.21
560-59 FR 59177: November 16. 1994.
564-59 FR 60568: November 25. 1994.
56S59 FR 62352: December 05. 1994.
567-59 FR 64623: December 15. 1994. .57&60 FR 61: January 3. 1995.
572-60 FR 3562: January 18. 1995.
9ij-60 FR 6684: Fehruarq- 3. 1995. 5W-60 FR 12486: March 7, 1995.
581-61 FR 10697: March 15. 1996. 58441 FR 31058: June 19. 1996.
586-61 FR 41023: August, 7. 1996. ,587-61 FR 43184: August 21. 1996.
,58941 FR 32381: October 7. 1996.
590-61 FR 53088: Octoher 10. 1996.
,591-61 FR 53107: October 10. 1996.
592-61 FR 33123: October 10. 1996.
59341 FR 53130: October 10. 1996.
594-61 FR 53137: October 10. 1996.
39j61 FR 53152: October 10. 1996. 596-41 FR 54358: October 18. 1996.
599-51 FR 67497: December 23. 1996.
600-42 FR 689: January 6. 1997.
60142 FR 1647: January 10. 1997.
60-2 FR 55.51: February 6. 1997. 61142 FR 14351: March 26. 1997.
61342 FR 27978: Slay 22. 1997.
624-42 FR 42702: August 8. 1997.
625-62 FR 54807: October 22, 1997.
62742 FR 61925: Xovemher 20. 1997. 63S-63 FR 19849: April 22. 1998. 640-63 FR 23115: August 12. 1998.
641-63 FR 44594: .%ugust 20. 1998.
643-63 FR 49034: September 14, 1998.
64+63 FR 49021: Septemher 14. 1998. 6-17--63 FR 53615: Octoher 6. 1998.
648-63 FR 54970: Octoher 13. 1998.
649-63 FR 54956: October 13. 1998. 650-53 FR 54994: Octoher 13. 1998.
65243 FR 59244: November 3. 1998.
66661 FR 48323: September 3. 1999.
66744 FR 56590: October 20. 1999. 66-4 FR 56596: October 20. 1999.
67144 FR 63752: November 22. 1999. 6i244 FR 69203: December 10. 1999.
67-4 FR 71687: December 22. 1999.
67-5 FR 3875: January 25. 2000.
67945 FR 3890: January 25. 2000. 68145 FR 1162: January 26. 2000.
68345 FR 5275: Februarr 3. 2000.
68-5 FR 6338: Fehruary 9. 2000.
685-65 FR 7764: February 16. 2000.
689-65 FR 14887: March 20. 2000.
690-63 FR 14909: March 20. 2000.
69145 FR 14897: March 23. 2000.
50 CFR Ch. I (1 0- 1-00 Edition)
EDITORIAL NOTE 2: For FEDERAL REGISTER citations affecting $17,12. see the List of CFR Sections ;\ffected in the Finding Aids sec- tion of this rolume.
E
. U.S. Fish and Wildlife Sew., Interior 5 17.21
Subpart C-Endangered Wildlife
5 17.21 Prohibitions.
(a) Except as provided in subpart A of this part. or under permits issued pur- suant to 817.22 or 817.23. it is unlawful for any person subject to the jurisdic- tion of the United States to commit, to attempt to commit. to solicit another to commit or to cause to be cow- mitted. any of the acts described in paragraphs tb) through tf) of this sec- tion in regard to any endangered wild- life. (b) Import or erport. It is unlawful tu import or to export any endangered wildlife. Any shipment in transit through the United States is an impor- tation and an exportat.ion. whether or not it has entered the count.ry for cus- toms purposes. (c) Take. (1) It is unlawful to take en- dangered wildlife within the United States. within the territorial sea of the United States. or upon the high seas. The high seas shall be all waters sea- ward of the territorial sea of the United States. except waters officially recognized by the United States as the territorial sea of another country, under international law. (2) Notwithstanding paragraph (c)(l) of this section. any person may take endangered wildlife in defense of his own life or the lives of others. (3) Notwithstanding paragraph (c)(l) of this section. any employee or agent of the Service. any other Federal land management agency. the National Ma- rine Fisheries Service. OY a State con- servation agency, who is designated by his agency for such purposes. may, ivhen acting in the course of his official dut,ies. take endangered wildlife with- out a permit if such action is necessm to: ii) Aid a sick. injured or orphaned specimen: or
iii) Dispose of a dead specimen: or
(iii) Salvage a dead specimen which may be useful for scientific study: or
EDITORIAL NOTE 1: For FEDERAL REGISTER citations affecting the table in fj17.12th). see
ihe listing ahore.
(iv) Remove specimens st.itUte a demonstrable but nonimme- diate threat to human safety. provided
I 1 Gfi
area.
(4) Any taking pursuant to para- graphs (c) (2) and (3) of this section must be reported in writing to the U.S. Fish and Wildlife Service. Division of Law Enforcement. P.O. Box 19183. Washington. DC 20036. within 5 dags. The specimen may only be retained. disposed of. or salvaged in accordance with directions from Service. (5) Notwithstanding paragraph (c)(l) of this section. any qualified employee or agent of a State Conservation Agen- cy which is a party to a Cooperative Agreement with the Service in accord- ance with section 6(c) of the Act. who is designated by his agency for such purposes. may. when acting in the course of his official duties take those endangered species which are covered by an approved cooperative agreement for conservation programs in accord- ance with the Cooperative Agreement. provided that such taking is not rea- sonably anticipated to result in: (i) The death or permanent disabling of the specimen: (ii) The removal of the specimen from the State where the taking oc-
2. GUI-TeLl, (iii) The introduct.ion of the specimen so taken. or of any progeny derived from such a specimen. into an area be- yond the historical range of the spe-
(iv) The holding of the specimen in captivity for a period of more than 45 consecutive da.ys.
, (d) Possession a.nd other acts with un- lawfully taken uildlife. i1) It is unlawful to possess, sell. deliver. carry, trans- port, or ship. by any means whatso- ever, any endangered wildlife which was taken in violation of paragraph (c) of this section.
; Example A person captures a whooping crane in Texas and gives it to a second per-
: son. who puts it in a closed van and drives
: thirty miles. t.0 another location in Texas. i- The second person then gives the tvhooping
! crane to a third person. who is apprehended
i with the bird in hie uossession. 411 three
i cies: or
liver. carry. transport or ship any en- dangered wildlife taken in violation of the Act. as necessary in performing their official duties. (e) Interstate or foreign commerce. It. is Unlawful to deliver. receive. carry transport. or ship in interstate or for- eign commerce, by any means what,so- ever. and in the course of a commercial activity. any endangered wildlife. iD Sale OT offer for sale. (1) It. is unlaw- ful to sell or to offer for sale in inter- state or foreign commerce any endan- gered wildlife.
(2) An advertisement for the sale of endangered wildlife which carries a warning to the effect that no sale mag be consummated until a permit has been obtained from t,he U.S. Fish and Wildlife Service shall not be considered an offer for sale within the meaning of this section. (g) Captice-bred wildlife. (1) Notwith- standing paragraphs (b), (c). (e) and (f) of this section. any person may take: export or re-import: deliver. receive. carry, transport or ship in interstate or foreign commerce. in the course of a commercial activity: or sell or offer for sale in interstate or foreign commerce any endangered wildlife that is bred in captivity in the United States provided either that the wildlife is of a taxon listed in paragraph (gN6) of this sec- tion. or that the following conditions are met: (i) The wildlife is of a species having a natural geographic distribution not including any part of the United States. or the wildlife is of a species that the Director has determined to be eligible in accordance with paragraph (gN5) of this section:
(ii) The purpose of such activity is to enhance the propagation or survival of the affected species;
(iii) Such activity does not involve interstate or foreign commerce. in the course of a commercial activity. with respect to non-living wildlife: (iv) Each specimen of wildlife to be .. have violated the lawLthe first by illegally re-imported is uniquely identified by a taking the whooping crane: the second by band. tattoo or other means that was
1 cn
I
§ 17.21
reported in writing to an official of the Service at a port of export prior to ex- port from the United States; and (v) Any person subject to the juris- diction of the United States who en- gages in any of the activities author- ized by this paragraph does so in ac- cordance with paragraphs (g) (2), (3) and (4) of this section, and with all other applicable regulations in this Subchapter B. (2) Any person subject to the jurisdic- tion of the United States seeking to en- gage in any of the activities authorized by this paragraph must first register with the Service (Office of Manage- ment Authority, U.S. Fish and Wildlife
Service, 4401 N. Fairfax Drive, Arling- ton, Virginia 22203). Requests for reg- istration must be submitted on an offi- cial application form (Form 3-200-41) provided by the Service, and must in- clude the following information:
(i) The types of wildlife sought to be covered by the registration, identified by common and scientific name to the taxonomic level of family, genus or species; (ii) A description of the applicant's experience in maintaining and propa- gating the types of wildlife sought to be covered by the registration, and when appropriate, in conducting re- search directly related to maintaining
and propagating such wildlife; (iii) Photograph(s) or other evidence clearly depicting the facilities where such wildlife will be maintained: and (iv) a copy of the applicant's license or registration, if any, under the ani- mal welfare regulations of the U.S. De- partment of Agriculture (9 CFR part 2). (3) Upon receiving a complete appli- cation, the Director will decide wheth- er or not the registration will be ap- proved. In making this decision, the Director will consider, in addition to the general criteria in $13.21(b) of this subchapter, whether the expertise, fa- cilities or other resources available to the applicant appear adequate to en- hance the propagation or survival of the affected wildlife. Public education activities may not be the sole basis to justify issuance of a registration or to otherwise establish eligibility for the exception granted in paragraph (g)(l) of this section. Each person so registered must maintain accurate written
first registering with the respect to the bar-tailed ticw humfue), Elliot's
ness of law enforcement.
(iii) In accordance with the cri in paragraph (g)(5)(i) of this sec the Director has determined the lowing species to be eligible for
provisions of this paragraph:
Laysan duck (Anas 1aysanemt.s).
tion of the United States seeking t gage in any of the activities autho by paragraph (g)(l) of this section
n records of activities, including
Q 17.22
at reasonable hours as set forth in $8 13.46 and 13.47.
[40 FR 44415. Sept. 26, 1975, aa amended at 40 FR 53400, Nov. 18, 1975; 41 FR 19226, May 11, 1976; 44 FR 31580, May 31, 1979; 44 FR 54007, Sept. I?, 1979; 58 FR 68325, Dec. 2'7,1993: 63 FR
48640, Sept. 11,19981
0 1122 Permita for scientific purpoees, enhancement of ropagation or mu- vivd or for imci&nM taking.
Upon receipt of a complete applica- tion, the Director may issue a permit authorizing any activity otherwise pro- hibited by $17.21, in accordance with the issuance criteria of this section, for scientific purposes, for enhancing the propagation or survival, or for the inci- dental taking of endangered wildlife. Such permits may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time. (See $17.32 for permits for threatened species.) The Director shall publish notice in the FEDERAL REGISTER of each application for a per- mit that is made under this section. Each notice shall invite the submission from interested parties, within 30 days after the date of the notice, of written data, views, or arguments with respect to the application. The 30-day period may be waived by the Director in an emergency situation where the life or
health of an endangered animal is threatened and no reasonable alter- native is available to the applicant. Notice of any such waiver shall be pub- lished in the FEDERAL REGISTER within
10 days following issuance of the per- mit. (a)(l) Application requirements for per- mits for scientific purposes or for the en- hancement of propagation or survival. A person wishing to get a permit for an activity prohibited by $17.21 submits an application for activities under this paragraph. The Service provides Form
3-200 for the application to which all of the following must be attained: (i) The common and scientific names of the species sought to the covered by the permit, as well a the number, age, and sex of such species, and the activ- ity sought to be authorized (such as taking, exporting, selling in interstate commerce);
(ii) A statement as to whether, at the time of application, the wildlife sought
1
169
5 17.22
to be covered by the permit (A) is still in the wild, (B) has already been re- moved from the wild, or (C) was born in captivity; (iii) A resume of the applicant’s at-
tempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or re- moval from the wild of such wildlife; (iv) If the wildlife sought to be cov- ered by the permit has already been re- moved from the wild, the country and place where such removal occurred; if the wildlife sought to be covered by the permit was born in captivity, the coun- try and place where such wildlife was born; (v) A complete description and ad- dress of the institution or other facil-
ity where the wildlife sought to be COV- ered by the permit will be used, dis- played, or maintained; (vi) If the applicant seeks to have live wildlife covered by the permit, a complete description, including photo- graphs or diagrams, of the facilities to house and/or care for the wildlife and a resume of the experience of those per- son who will be caring for the wildlife; (vii) A full statement of the reasons why the applicant is justified in ob- taining a permit including the details of the activities sought to be author- ized by the permit; (viii) If the application is for the pur- pose of enhancement of propagation, a statement of the applicant’s willing- ness to participate in a cooperative breeding program and to maintain or contribute data to a studbook; (2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (a)(l) of this section, the Director will decide whether or not a permit should be issued. In making this decision, the Director shall con-
sider, in addition to the general cri- teria in 5 13.21(b) of this subchapter, the following factors:
(i) Whether the purpose for which the permit is required is adequate to jus- tify removing from the wild or other- wise changing the status of the wildlife sought to be covered by the permit; (ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;
(iii) Whether the permit, if issued, would in any way, directly or indt-
probabilities of the population
permit was or would be
in the permit.
(4) Duration of permrts. The
graph. The Service provides F for the application to which a following must be attached:
tivity sought to be authorized;
(ii) The common and scientific of the species sought to be cove
and sex of such species, if known;
(iii) A conservation plan that fies: (A) The impact that will likely from such taking;
(B) What steps the applicant take to monitor, minimize, and gate such impacts, the funding will be available to implement
1 § 17.22
(4) Duration of Bermits. The duration of permits issued under this paragraph shall be sufficient to provide adequate assurances to the permittee to commit funding necessary for the activities au- thorized by the permit, including con- servation activities and land use re- strictions. In determining the duration of a permit, the Director shall consider the duration of the planned activities, as well as the possible positive and neg- ative effects associated with permits of the proposed duration on listed species, including the extent to which the con- servation plan will enhance the habitat of listed species and increase the long- term survivability of such species..
(5) Assurances provided to permittee in cue of changed or unforeseen dr- cumstances. The assurances in this paragraph (b)(5) apply only to inci- dental take permits issued in accord- ance with paragraph (b)(2) of this sec- tion where the conservation plan is being properly implemented, and apply only with respect to species adequately covered by the conservation plan. These assurances cannot be provided to Federal agencies. This rule does not apply to incidental take permits issued prior to March 25, 1998. The assurances provided in incidental take permits issued prior to March 25, 1998 remain in effect, and those permits will not be re- vised as a result of this rulemaking.
(i) Changed circumstances provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed cir- cumstances and were provided for in the plan’s operating conservation pro- gram, the permittee will implement the measures specified in the plan.
(ii) Changed circumstances not provided for in the plan. If additional conserva- tion and mitigation measures are deemed necessary to respond to
changed circumstances and such meas- ures were not provided for in the plan’s operating conservation program, the Director will not require any conserva- tion and mitigation measures in addi- tion to those provided for in the plan without the consent of the permittee, provided the plan is being properly im- plemented.
(iii) Unforeseen circumstances. (A) In negotiating unforeseen circumstances,
170 171
5 17.22
the Director will not require the com- mitment 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 spe- cies covered by the conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed nec- essary to respond to unforeseen cir- cumstances, the Director may require additional measures of the permittee where the conservation plan is being properly implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to the conservation plan's operating conservation program for the affected species, and maintain the original terms of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of ad- ditional land, water or financial com- pensation or additional restrictions on the use of land, water, or other natural resources otherwise available for devel- opment or use under the original terms of the conservation plan without the consent of the permittee.
(C) The Director will have the burden of demonstrating that unforeseen cir- cumstances exist, using the best sci- entific and commercial data available. These findings must be clearly docu- mented and based upon reliable tech- nical information regarding the status and habitat requirements of the af- fected species. The Director will con- sider, but not be limited to, the fol- lowing factors:
(I) Size of the current range of the af- fected species;
(2) Percentage of range adversely af- fected by the conservation plan;
(3) Percentage of range conserved by the conservation plan;
(4) Ecological significance of that portion of the range affected by the conservation plan; (5) Level of knowledge about the af- fected species and the degree of speci- ficity of the species' conservation pro- gram under the conservation plan; and
(6) Whether failure to adopt addi- tional conservation measures would ap- preciably reduce the likelihood of sur-
50 CFR Ch. I (10-1-00 Editlon) US. Fish and Wildlife Sew., Interior
viva1 and recovery of the affected spe- cies in the wild.
(6) Nothing in this rule will be con- strued to limit or constrain the Direc- tor, any Federal, State, local, or Tribal government agency, or a private enti-
ty, from taking additional actions at its own expense to protect or conserve a species included in a conservation
plan. (7) Discontinuance of permit activity. Notwithstanding the provisions Of 5 13.26 of this subchapter, a permittee under this paragraph (b) remains re- sponsible for any outstanding mini- mization and mitigation measures re- quired 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 re- quired pursuant to the termination provisions of an implementing wee- ment, habitat conservation plan, or permit even after surrendering the per- mit to the Service pursuant to $13.26 Of this subchapter. The permit shall be deemed canceled only upon a deter- mination by the Service that such minimization and mitigation meaauren have been implemented. Upon sur- render 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)(l) through (4) of this subchapter or unless con- tinuation of the permitted activiw would be inconsistent with the crl- terion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistencg. has not been remedied in a timely faah.
(i) The common and scientific names of the listed species for which the ap-
plicant requests incidental take au- thorization;
(ii) A description of the land use or water management activity for which the applicant requests incidental take authorization; and
(iii) A Safe Harbor Agreement that complies with the requirements of the Safe Harbor policy available from the Service. (2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (c)(l) 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), and may issue the per- mit if he or she finds:
(i) The take will be incidental to an otherwise lawful activity and wilI be in accordance with the terms of the Safe Harbor Agreement; (ii) The implementation of the terms of the Safe Harbor Agreement will pro- vide a net conservation benefit to the affected listed species by contributing to the recovery of listed species in- cluded in the permit and the Safe Har- bor Agreement otherwise complies with the Safe Harbor policy available from the Service;
(iii) The probable direct and indirect effects of any authorized take will not appreciably reduce the likelihood of . aurvival and recovery in the wild of 6 any listed species; ! (iv) Implementation of the terms of B the Safe Harbor Agreement is con- sistent with applicable Federal, State, and Tribal laws and regulations;
(v) Implementation of the terms of the Safe Harbor Agreement will not be in conflict with any ongoing conserva- tion or recovery programs for listed epecies covered by the permit; and
(vi) The applicant has shown capa- bility for and commitment to imple- menting all of the terms of the Safe Harbor Agreement.
(3) Permit conditions. In addition to my applicable general permit condi- tions set forth in part 13 of this sub- chapter, every permit issued under this magraph (c) is subject to the fol- lowing special conditions:
§ 17.22
(i) A requirement for the partici- pating property owner to notify the Service of any transfer of lands subject to a Safe Harbor Agreement; (ii) A requirement for the property owner to notify the Service at least 30 days in advance, but preferably as far in advance as possible, of when he or she expects to incidentally take any listed species covered under the per- mit. Such notification will provide the Service with an opportunity to translocate affected individuals of the species, if possible and appropriate; and
(iii) Any additional requirements or conditions the Director deems nec- essary or appropriate to carry out the purposes of the permit and the Safe Harbor Agreement. (4) Permit effective date. Permits issued under this paragraph (c) become effective the day of issuance for species covered by the. Safe Harbor Agreement. (5) Assurances provided to permittee. (i) The assurances in paragraph (c)(5) (ii) of this section (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 as- surances 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 nec- essary, the Director may require addi- tional 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 max- imum extent possible. Additional con- servation and mitigation measures will not involve the commitment of addi- tional land, water or financial com- pensation or additional restrictions on the use of land, water, or other natural resources otherwise available for devel- opment 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 con- strain the Director, any Federal, State, local or Tribal government agency, or
I73 172
9 17.22
a private entity, from taking addi- tional 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 con- tinuation of the permitted activity would be inconsistent with the cri- terion set forth in §17.22(c)(Z)(iii) and the inconsistency has not been rem- edied 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 per- mit, the Director will consider the du- ration of the planned activities, as well as the positive and negative effects as- sociated with permlts 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)(l) Application requiremats for per- mits for the enhancemat of survival through Candidate Conservation Agree- ments with Assurances. The applicant must submit an application for a per-
mit under this paragraph (d) to the ap propriate Regional Director, U.S. Fish and Wildlife Service, for the Region where the applicant resides or where the proposed activity is to occur (for appropriate addresses, see 50 CFR
10.22). When a species covered by a Can- didate Conservation Agreement with Assurances is listed as endangered and the applicant wishes to engage in ac- tivities identified in the Agreement and otherwise prohibited by 5 17.31, the applicant must apply for an enhance- ment of survival permit for species covered by the Agreement. The permit will become valid if and when covered proposed, candidate or other unlisted species is listed as an endangered spe- cies. The applicant must submit an of-
ficial Service application form (3- 200.54) that includes the following in- formation:
U.S. Fish and Wildlife Sew.. Interior 50 CFR Ch. I (10-1-00 Edition)
(i) The common and scientific names of the species for which the applicant requests incidental take authorization; (ii) A description of the land use or
water management activity for which the applicant requests incidental take authorization; and
(iii) A Candidate Conservation Agree- ment that complies with the require- ments of the Candidate Conservation Agreement with Assurances policy available from the Service.
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (d)(l) of this section, the Director will decide whether or not to issue a permit. The Director shd consider the general issuance criteria in 5 13.21(b) of this subchapter, except for §13.21(b)(4), and may issue the per mit if he or she finds:
(i) The take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the Can- didate Conservation Agreement;
(ii) The Candidate Conservation Agreement complies with the require- ments of the Candidate Conservation Agreement with Assurances pOliCY available from the Service;
174 175
§ 17.22
mitment 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 spe- cies covered by the Agreement without the consent of the permittee. (B) If additional conservation and mitigation measures are deemed nec- essary to respond to unforeseen cir- cumstances, the Director may require additional measures of the permittee where the Agreement is being properly implemented, but only if such meas- ures are limited to modifications with- in conserved habitat areas, if any, or to the Agreement's operating conserva- tion 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 ad- ditional restrictions on the use of land, water, or other natural resources oth- erwise available for development or use under the original terms of the Agree- ment without the consent of the per- mit tee. (C) The Director will have the burden of demonstrating that unforeseen cir- cumstances exist, using the best sci- entific and commercial data available. These findings must be clearly docu- mented and based upon reliable tech- nical information regarding the status and habitat requirements of the af- fected species. The Director will con- sider, but not be limited to, the fol- lowing factors: (I) Size of the current range of the af- fected species; (2) Percentage of range adversely af- fected 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 af- fected species and the degree of speci- ficity of the species' conservation pro- gram under the Agreement; and
(6) Whether failure to adopt addi- tional conservation measures would ap-
preciably reduce the likelihood of sur- vival and recovery of the affected spe- cies in the wild.
Q 17.23
(6) Additional actions. Nothing in this rule will be construed to limit or con- strain the Director, any Federal, State, local or Tribal government agency, or a private entity, from taking addi- tional actions at its own expense to protect or conserve a species included in a Candidate Conservation with As- surances Agreement. (7) Criteria for revocation. A permit issued under this paragraph (d) may not be revoked for any reason except those set forth in 5 13.28(a)(l) through (4) of this subchapter or unless con- tinuation of the permitted activity would be inconsistent with the cri- terion set forth in paragraph (d)(2)(iii) of this section and the inconsistency has not been remedied in a timely fash- ion. (8) Duration of the Candidate Conserva- tion Agreement. The duration of a Can- .didate Conservation Agreement cov- ered by a permit issued under this paragraph (d) must be sufficient to en- able 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. ' (e) Objection to permit issuance. (1) In regard to any notice of a permit appli- cation published in the FEDERAL REG-
ISTER, any interested party that ob- jects to the issuance of a permit, in whole or in part, may, during the com- ment period specified in the notice, re- quest notification of the final action to be taken on the application. A separate written request shall be made for each permit application. Such a request shall specify the Service's permit ap- plication number and state the reasons
why that party believes the applicant does not meet the issuance criteria contained in @13.21 and 17.22 of this
subchapter or other reasons why the permit should not be issued. (2) If the Service decides to issue a permit contrary to objections received pursuant to paragraph (c)(l) of this sec- tion, then the Service shall, at least ten days prior to issuance of the per- mit, make reasonable efforts to con- tact by telephone or other expedient
y the permit (as nt with similar here applicable, ant's income de- of such wildlife, use of such wildlife,
e notice in the FED-
mit. (3) The Service will notify any PCUW filing an objection and request for ne tice under paragraph (c)(l) of this 8W tion of the final action taken on the application, in writing. If the Service has reduced or dispensed with the no- tice period referred to in paragraph (c)(2) of this section, it will include itd reasons therefore in such written no-
dlife as endangered, whichever tice.
[so FR 39687, Sept. 30. 1985, as amended at a FR 8871, Feb. 23. 1998: 63 FR 52635, OCt. 1. 1%
64 FR 32711, June 17. 1999; 64 FR 52676. Sept.
30, 19991
fe as endangered was pub- the FEDERAL REGISTER, s earlier; and cause monetary loss of a
the submission within 30 days
sought to be covered by the
obable direct and indirect
Q 17.23
wildlife sought to be covered by the permit; (3) The economic, legal, subsistence, or other alternatives or relief available to the applicant; (4) The amount of evidence that the applicant was in fact party to a con- tract or other binding legal obligation which; (i) Deals specifically with the wildlife sought to be covered by the permit; and (ii) Became binding prior to the date when the notice of a review of the sta- tus of the species or the notice of pro- posed rulemaking proposing to list such wildlife as endangered was pub- lished in the FEDERAL REGISTER, whichever is earlier.
(5) The severity of economic hardship which the contract or other binding legal obligation referred to in para- graph (b)(4) of this section would cause
if the permit were denied;
(6) Where applicable, the portion of the applicant's income which would be lost if the permit were denied, and the relationship of that portion to the bal- ance of his income; (7) Where applicable, the nature and extent of subsistence taking generally by the applicant; and (8) The likelihood that applicant can reasonably carry out his desired activ- ity within one year from the date a no-' tice is published in the FEDERAL REG
ISTER to review status of such wildlife, or to list such wildlife as endangered, whichever is earlier. (c) Pennit conditions. In addition to the general conditions set forth in part,
13 of this subchapter, every permit issued under this section shall be sub- ject to the following special conditions: (1) In addition to any reporting re- quirements contained in the permit itself, the permittee shall also submit to the Director a written report of his activities pursuant to the permit. Such report must be postmarked or actually delivered no later than 10 days after completion of the activity.
(2) The death or escape of all living wildlife covered by the permit shall be immediately reported to the Service's office designated in the permit. (d) Duration of permits issued under this section shall be designated on the face of the permit. No permit issued
176 177
Q 17.31
under this section, however, shall be valid for more than one year from the date a notice is published in the FED-
wildlife, or to list such wildlife as en- dangered, whichever is earlier.
[40 FR 44415, Sept. 26. 1975, aa amended at 40 FR 53400. Nov. 18, 1975; 40 FR 58307, Dec. 16,
1975: 50 FR 39688, Sept. 30, 19851
ERAL REGISTER to review Status Of such
Subpart D-Threatened Wildlife
9 17.31 Prohibitions.
(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in 5 17.21 shall apply to threatened wild- life, except 517.21(~)(5). (b) In addition to any other provi- sions of this part 17, any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency which is operating a conservation program pursuant to the terms of a Cooperative Agreement with the Service in accordance with
section 6(c) of the Act, who is des- ignated by his agency for such pur- poses, may, when acting in the course of his official duties, take those threat- ened species of wildlife which are cov- ered by an approved cooperative agree- ment to carry out conservation pro- grams. (c) Whenever a special rule in 5917.40 to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the appli- cable prohibitions and exceptions.
143 FR 18181. Apr. 28, 1978, as amended at 44 FR 31580. May 31, 19791
8 17.32 Pedt.s-genera3.
Upon receipt of a complete applica- tion the Director may issue a permit
for any activity otherwise prohibited with regard to threatened wildlife. Such permit shall be governed by the provisions of this section unless a spe- cial rule applicable to the wildlife, ap- pearing in 5517.40 to 17.48, of this Part provides otherwise. Permits issued under this section must be for one of the following purposes: Scientific pur- poses, or the enhancement of propaga- tion or survival, or economic hardship, or zoological exhibition, or educational
50 CFR Ch. I (10-1-00 Edinon)
purposes, or incidental taking, or spe- cial purposes consistent with the pur- poses of the Act. Such permits may au- thorize a single transaction, a series of transactions, or a number of activities over a specific period of time.
(a)(l) Application requirements for per- mits for scientific purposes, or the en- hancement of propagation or survival, or economic hardship, or zoological exhi- bition, or educational purposes, or special purposes consistent with the purposes of the Act. A person wishing to get a per- mit for an activity prohibited by 517.31 submits an application for activities under this paragraph. The Service pro- vides Form 3-200 for the application to which as much of the following infor- mation relating to the purpose of the permit must be attached:
(i) The Common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, and the activ-
ity sought to be authorized (such 88 taking, exporting, selling in interstate commerce);
(ii) A statement as to whether, at the time of application, the wildlife sought to be covered by the permit (A) is still in the wild, (B) has already been re- moved from the wild, or (C) was born in captivity;
(iii) A resume of the applicant's ab tempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or re- moval from the wild of such wildlife;
(iv) If the wildlife sought to be cov- ered by the permit has already been re- moved from the wild, the country ad place where such removal occurred; if the wildlife sought to be covered by- permit was born in captivity, the COW- try and place where such wildlife WBI; born;
(v) A complete description and ad-: dress of the institution or other fad-;
itg where the wildlife sought to be COV-2 ered by the permit will be used, die;
(vi) If the applicant seeks to have? live wildlife covered by the permit, rl complete description, including photo- i graphs or diagrams, of the facilities "3 house andlor care for the wildlife and Or resume of the experience of those per-$ sons who will be caring for the wildlife;:
played, or maintained; .4
4
178
U.S. Fish and Wildlife Sew., Interior
(vii) A full statement of the reasons why the applicant is justified in ob- taining a permit including the details
Of the activities sought to be author- ized by the permit; (viii) If the application is for the pur- pose of enhancement of propagation, a statement of the applicant's willing- ness to participate in a cooperative breeding program and to maintain or contribute data to a studbook;
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (a)(l) of this section, the Director will decide whether or not a permit should be issued. In making this decision, the Director shall con- aider, in addition to the general cri- &ria in 5 13.21(b) of this subchapter, the iollowing factors: (i) Whether the purpose for which the Permit is required is adequate to jus- tify removing from the wild or other- wise changing the status of the wildlife Bought to be covered by the permit; (ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the
wmt; (iii) Whether the permit, if issued, would in any way, directly or indi- rectly, conflict with any known pro- gram intended to enhance the survival probabilities of the population from which the wildlife sought to be covered
by the permit was or would be re- moved; (iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction fac-
ing the species of wildlife sought to be covered by the permit; - (v) The opinions or views of scientists or other persons or organizations hav- lng expertise concerning the wildlife or other matters germane to the applica- tion; and (vi) Whether the expertise, facilities, or other resources available to the ap- plicant appear adequate to successfully accomplish the objectives stated in the application. (3) Permit conditions. In addition to the general conditions set forth in part 1s of this subchapter, every permit hued under this paragraph shall be 'mbject to the special condition that
the escape of living wildlife covered by
179
Q 17.32
the permit shall be immediately re- ported to the Service office designated in the permit. (4) Duration of permits. The duration of permits issued under this paragraph shall be designated on the face of the permit.
(b)(l) Application requirements for per- mits for incidental taking. (i) A person wishing to get a permit for an activity prohibited by 517.31 submits an appli- cation for activities under this para-
(ii) The director shall publish notice in the FEDERAL REGISTER of each appli- cation for a permit that is made under this section. Each notice shall invite the submission from interested parties, within 30 days after the date of the no- tice, of written data, views, or argu- ments with respect to the application. (iii) Each application must be sub- mitted on an official application (Form 3-200) provided by the Service, and must include as an attachment, all of the following information: (A) A complete description of the ac- tivity sought to be authorized; (B) The common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, if known; (C) A conservation plan that speci- fies: (I) The impact that will likely result from such taking;
(2) What steps the applicant will take to monitor, minimize, and mitigate such impacts, the funding that will be available to implement such steps, and the procedures to be used to deal with unforeseen circumstances; (3) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not proposed to be utilized; and (4) Such other measures that the Di- rector may require as being necessary or appropriate for purposes of the plan. (2) Issuance criteria. (i) Upon receiving an application completed in accordance with paragraph (b)(l) of this section, the Director will decide whether or not a permit should be issued. The Director shall consider the general issuance cri- teria in 13.21(b) of this subchapter, ex- cept for 13.21(b)(4), and shall issue the permit if he or she finds that:
graph.
(A) The taking will be incidental;
Q 17.32
(B) The applicant will, to the max- imum extent practicable, minimize and mitigate the impacts of such takings;
(C) The applicant will ensure that adequate funding for the conservation plan and procedures to deal with un- foreseen circumstances will be pro- vided; (D) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;
(E) The measures, if any, required under paragraph (b)(l)(iii)(D) of this section will be met; and (F) He or she has received such other assurances as he or she may require that the plan will be implemented. (ii) In making his or her decision, the Director shall also consider the antici- pated duration and geographic scope of the applicant's planned activities, in- cluding the amount of listed species habitat that is involved and the degree to which listed species and their habi- tats are affected. (3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall con- tain such terms and conditione as the Director deems necessary or appro- priate to carry out the purposes of the permit and the conservation plan in- cluding, but not limited to, monitoring and reporting requirements deemed necessary for determining whether such terms and conditions are being complied with. The Director shall rely upon existing reporting requirements to the maximum extent practicable. (4) Duration of permits. The duration of permits issued under this paragraph shall be sufficient to provide adequate assurances to the permittee to commit funding necessary for the activities au- thorized by the permit, including con- servation activities and land use re- strictions. In determining the duration of a permit, the Director shall consider the duration of the planned activities, as well as the possible positive and neg- ative effects associated with permits of the proposed duration on listed species, including the extent to which the con- servation plan will enhance the habitat of listed species and increase the long- term survivability of such species. (5) Assurances provided to permittee in case of changed or unforeseen cis-
50 CFR Ch. I(10-1-00 Edition) US. Fish and Wildlife Sew., lntertor
paragraph (b)(5) apply only to inci- dental take permits issued in accord- ance with paragraph (b)(2) of this s=-
tion where the conservation plan i8 being properly implemented, and apply only with respect to species adequately covered by the conservation pla These assurances cannot be provided to Federal agencies. This rule does not apply to incidental take permits issued prior to March 25, 1998. The assurance8 provided in incidental take permit8 issued prior to March 25, 1998 remain h effect, and those permits will not be W vised as a result of this rulemaking. (i) Changed circumstances provided fm in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed cIF
current range of the af-
measures
.n
Q 17.32
provisions of an implementing agree- ment, habitat conservation plan, or permit even after surrendering the per- mit to the Service pursuant to 113.26 of this subchapter. The permit shall be deemed canceled only upon a deter- mination by the Service that such minimization and mitigation measures have been implemented. Upon sur- render 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)(l) through (4) of this subchapter or unless con- tinuation of the permitted activity would be inconsistent with the cri- terion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been remedied in a timely fash- ion. (c)(l) Application requirements for per- mits for the enhancement of survival through Safe Harbor Agreements. The ap plicant must submit an application for a permit under this paragraph (c) to the appropriate Regional Director, U.S. Fish and Wildlife Service, for the Re- gion where the applicant resides or where the proposed action is to occur (for appropriate addresses, see 50 CFR 10.22), if the applicant wishes to engage in any activity prohibited by 117.31. The applicant must submit an official Service application form (3-200.54) that includes the following information:
(i) The common and scientific names of the listed species for which the ap- plicant requests incidental take au- thorization; (ii) A description of the land use or water management activity for which the applicant requests incidental take authorization; (iii) A Safe Harbor Agreement that complies with the requirements of the Safe Harbor policy available from the Service; and (iv) The Director must publish notice in the FEDERAL REGISTER of each appli- cation for a permit that is made under this paragraph (c). Each notice must invite the submission from interested parties within 30 days after the date of the notice of written data, views, or ar- guments with respect to the applica- tion. The procedures included in . 180 lUl
5 17.32
5 17.22(e) for permit objection apply to any notice published by the Director under this paragraph (c). (2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (c)(l) 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), and may issue the per- mit if he or she finds: (i) The take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the Safe Harbor Agreement:
(ii) The implementation of the terms ofthe Safe Harbor Agreement will pro- vide a net conservation benefit to the affected listed species by contributing to the recovery of listed species in- cluded in the permit and the Safe Har- bor Agreement otherwise complies with the Safe Harbor policy available from the Service;
(iii) The probable direct and indirect effects of any authorized take will not appreciably reduce the likelihood of survival and recovery in the wild of any listed species; (iv) Implementation of the terms of the Safe Harbor Agreement is con- sistent with applicable Federal, State, and Tribal laws and regulations; (v) Implementation of the terms of the Safe Harbor Agreement will not be in conflict with any ongoing conserva- tion or recovery programs for listed species covered by the permit; and (vi) The applicant has shown capa- bility for and commitment to imple- menting all of the terms of the Safe Harbor Agreement. (3) Permit conditions. In addition to any applicable general permit condi- tions set forth in part 13 of this sub- chapter, every permit issued under this paragraph (c) is subject to the fol- lowing special conditions: (i) A requirement for the partici- pating property owner to notify the Service of any transfer of lands subject to a Safe Harbor Agreement; (ii) A requirement for the property owner to notify the Service at least 30 days in advance, but preferably as far in advance as possible, of when he or she expects to incidentally take any listed species covered under the per-
ied in a timely fashion. (8) Duration of permits. The duration (iii) Any additional requirements or
§ 17.32
(iv) The Director must publish notice in the FEDERAL REGISTER of each appli- cation for a permit that is made under this paragraph (d). Each notice must invite the submission from interested parties within 30 days after the date of the notice of written data, views, or ar- guments with respect to the applica- tion. The procedures included in §17.22(e) for permit objection apply to any notice published by the Director under this paragraph (d).
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (d)(l) 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), and may issue the per- mit if he or she finds:
(i) The take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the Can- didate Conservation Agreement;
(ii) The Candidate Conservation Agreement complies with the require- ments of the Candidate Conservation
'
Agreement with Assurances policy available from the Service;
(iii) The probable direct and indirect effects of any authorized take will not appreciably reduce the likelihood of survival and recovery in the wild of any species; (iv) Implementation of the terms of the Candidate Conservation Agreement is consistent with applicable Federal, State, and Tribal laws and regulations;
(v) Implementation of the terms of the Candidate Conservation Agreement will not be in conflict with any ongoing conservation programs for species cov- ered by the permit; and
(vi) The applicant has shown capa- bility for and commitment to Imple- mentlng all of the terms of the Can- didate Conservation Agreement. (3) Permit conditions. In addition to any applicable general permit condi- tions set forth in part 13 of this sub- chapter, every permit issued under this paragraph (d) is subject to the fol- lowing special conditions:
not be revoked for-any reason ex complies with the require- (i) A requirement for the property those set forth in 8 13.28(a)(l) he Candidate Conservation owner to notify the Service of any
(4) of this subchapter or unless with Assurances policy transfer of lands subject to a Candidate tinuation of the permitted acti om the Service. Conservation Agreement;
182 183
§ 17.32
(ii) A requirement for the property owner to notify the Service at least 30 days in advance, but preferably as far in advance as possible, of when he or she expects to incidentally take any species covered under the permit. Such notification will provide the Service with an opportunity to translocate af- fected individuals of the species, if pos- sible and appropriate; and (iii) Any additional requirements or conditions the Director deems nec- essary or appropriate to carry out the purposes of the permit and the Can- didate Conservation Agreement.
(4) Permit effective date. Permits issued under this paragraph (d) become effective for a species covered by a Candidate Conservation Agreement on the effective date of a final rule that lists a covered species as threatened. (5) Assurances provided to permittee in case of changed or unforeseen cir- cumstances. The assurances in this paragraph (d)(5) apply only to permits issued in accordance with paragraph (d)(2) where the Candidate Conserva- tion with Assurances Agreement is being properly implemented, and apply only with respect to species adequately covered by the Candidate Conservation with Assurances Agreement. These as- surances cannot be provided to Federal agencies.
(i) Changed circumstances provided for in the Agreement. If additional con- servation and mitigation measures are deemed necessary to respond to changed circumstances and were pro- vided 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 con- servation and mitigation measures are deemed necessary to respond to changed circumstances and such meaa- ures were not provided for in the Agreement’s operating conservation program, the Director will not require any conservation and mitigation meas- ures in addition to those provided for in the Agreement without the consent of the permittee, provided the Agree- ment is being properly implemented. (iii) Unforeseen circumstances. (A) In negotiating unforeseen circumstances, the Director will not require the com-
50 CFR Ch. i (10-1-00 Edition) U.S. Fish and Wildlife Sew., Interior
rules-mammals.
current range of
of range adverse1
of range consem
1 significance range affected
Q 17.40
ant Regional Director, Division of Law Enforcement, U.S. Fish and Wildlife Service, Lloyd 500 Building, Suite 1490, 500 Northeast Multnomah Street, Port- land, Oregon 97232 (503/231-6125 or FTS 4!29-6125), if occurring in Idaho or Wash- ington, and to appropriate State and Indian Reservation Tribal authorities. Grizzly bears or their parts taken in self-defense or in defense of others shall not be possessed, delivered, car- ried, transported, shipped, exported, re- ceived, or sold, except by Federal, State, or Tribal authorities. (C) Removal of nuisance bears. A griz- zly bear consituting a demonstrable but non immediate threat to human safety or committing significant depre- dations to lawfully present livestock, crops, or beehives may be taken, but only if: (1) It has not been reasonably pos- sible to eliminate such threat or depre- dation by live-capturing and releasing unharmed in a remote area the grizzly bear involved; and (2) The taking is done in a humane manner by authorized Federal, State, or Tribal authorities, and in accord- ance with current interagency guide- lines covering the taking of such nui- sance bears; and (3) The taking is reported within 5 days of occurrence to the appropriate Assistant Regional Director, Division of Law Enforcement, U.S. Fish and Wildlife Service, as indicated in para- graph (b)(l)(i)(B) of this section, and to appropriate State and Tribal authori- ties. (D) Federal, State, or Tribal scientific or research activities. Federal, State, or Tribal authorities may take grizzly bears for scientific or research pur- poses, but only if such taking does not result in death or permanent injury to the bears involved. Such taking must be reported within 5 days of occurrence to the appropriate Assistant Regional Director, Division of Law Enforcement, U.S. Fish and Wildlife Service, as indi- cated in paragraph (b)(l)(i)(B) of this section, and to appropriate State and Tribal authorities. (E) [Reserved] (F) National Parks. The regulations of the National Park Service shall govern all taking of grizzly bears in National Parks.
*
184 185
Attachment 2 to TE-022606-0 (consisting of Tables 1,2, and 3)
- the Carlsbad Subarea Plan !quately Conserved Und
Common Name Amount of
Take
Authorized
MHCP
VOl. I1
Page
Ref
4-56
Form of
Take
Author-
ized
N/A
Plants I Chorizanthe orcuttiana Orcutt’s spineflower NIA I
Dudleya blochmaniae ssp. I blochmaniae
Blochman’s dudleya FE NIA NIA 4-74
I Euphorbia misera
~
NIA
~
4-101 None Cliff spurge
Orcutt’s hazardia
Nuttall’s scrub oak
I
None NIA NIA 4-1 11
N/A Quercus dumosa NIA
harm
None
None
I Invertebral
Salt marsh skipper UnknOWn
number due to
temporal loss of
up to 17 acres
of marsh
habitat
I Euphyes vestris harbisoni Harbison’s dun skipper UnlCnOWn
number due to
acres of
woodland
habitat and
temporal loss
of up to 76
acres of
riparian
habitat
loss of up to 5
none
None
FE
4-196
4-25 1
Birds -
NIA California brown pelican Pelecanus occidentalis
White-faced ibis None unknown number
due to temporal loss of up to 17
acres of salt marsh
habitat
harm 4-256 Plegadis chihi
I
Cooper’s hawk None &OWn
number due to
loss of up to 5
acres of
woodland habitat
harm 4-264 Accipiter cooperii
’ See the “Key to Federal Listing Status” that follows List 3.
Pandion haliaetus None 4-269 Osprey
American peregrine falcon
Light-footed clapper rail
Western snowy plover
1 individual harm
none N/A
none N/A
none N/A
none N/A
Falco peregrinus anatum None 4-280
FE 4-285 Rallus longirostris Ievipes
Charadrius alexandrinus
nivosus
Sterna elegans
FT 4-291 .
Elegant tern None 4-299 I Sterna antillarum browni California least tern FE none I N/A 4-304
Empidonax traillii extimus I FE 4-314 Southwestern willow
flycatcher
Least Bell’s vireo
1 individual harm
3 individuals harm
unknown number
of adult or juvenile harm
gnatcatchers due
to loss of 1,176
acres of coastal
sage scrub, 292
acres of chaparral,
and 50 acres of
southern maritime
chaparral habitat
unknown
number due to harm
temporal loss of
up to 76 acres of
riparian habitat
Ire0 bellii pus= FE 4-32 1
Coastal California
gnatcatcher
FT 4-3 3 3 Polioptila californica
californica
Icteria virens None 4-360 Yellow-breasted chat
California rufous-crowned
sparrow
None 4-366 unknownnumber harm
due to loss of
1,176 acres of
coastal sage scrub
and 292 acres of
chaparral habitat
harm
2 individuals
2 individuals harm
Aimophila ru-ceps
canescens
Passerculus sandwichensis
beldinni
None 4-371 Belding’s savannah sparrow
Large-billed savannah
sparrow
Passerculus sanwichensis
rostratus .
4-377
4-245
I
Reptiles
unknown number
due to loss of
1,176 acres of
coastal sage scrub, 292 acres of
chaparral, and 50
acres of southern
maritime chaparral
habitat
harm Orange-throated whiptail
I
Scientific Name
I I I I - ”, ‘i‘* , Plants
I I I I
Common Name Stafus Take MHCP
Authorized Vol II
Page Ref
Acanthomintha ilicifolia
Ambrosia pumila
San Diego tho&? FT NIA 4-9
San Diego ambrosia FE NIA 4-16
Quercus engelmannii I Engelmanuoak None NIA 4-165
1
2
See the “Key to Federal Listing Status” that follows List 3.
Coverage for this species is also contingent on funding for management of conserved areas.
Ceanothus verrucosus
DudIeya viscida
Ferocactus viridescens
~ ~ ~
Wart-stemmed ceanothus’ None NIA 4-50
Sticky dude ya None NIA 4-89
San Diego barrel cactus None NIA 4-106
Table 3: Species Coverage Contingent on Funding for Management of Conserved
Areas
Scientific Name Common Name MHCP
Vol I1
Page
Ref
Status’ Take Form of
Authorized Take
I I I
I I I
PhtS
I
Arctostaphylos glandulosa ssp.
crassifolia
Del Mar manzanita FE NIA NIA 4-26
FT NIA NIA 4-32
FT NIA NIA 4-37
None NIA NIA 4-63
None NIA NIA 4-68
Baccharis vanessae Encinitas baccharis
Thread-leaved brodiaea
Summer holly
Brodiaea filifolia
Comarostaphylis diversifolia
ssp. diversifolia
Corethrogvne filaginifolia var .
Iinifolia
Eryngium aristulatum var.
parishii
Del Mar sand aster
, San Diego button-celeq? FE NIA NIA 4-94
None NIA NIA 4-116
None NIA NIA 4-133
Iva hayesiana San Diego marsh elder4 ’
~yosurus minimus ssp. apus Little mousetaiP
Navarretia fossalis Spreading navametia3 4-140
I I I
FE NIA NIA 4-147 Orcuttia californica California Orcutt grass3
Pinus torrevana SSD. torrevana Torrev Dine I ...
Invertebratc
I I
Streptocephalus woottoni Riverside fairy shnmp3 4- 178 FE unknown harm, number due to injury, or
impacts to one death
vernal pool
watershed
San Diego fairy shrimp3 FE 1 4-184 unknown harm, number due to injury, or
impacts to one death
vernal pool
watershed
Branchinecta sandiegonensis
1 See the “Kev to Federal Listing Status” below. - 3
4
Coverage for this species is also contingent on the City of Carlsbad receiving legal control over the protection, management, and
monitoring of the vernal pools adjacent to the Poinsettia Train Station in Carlsbad.
Coverage for this species is also contingent on other MHCP subarea plans being permitted.
Key to Federal Listing Status of Species in Tables 1 - 3
FE Federally Endangered
FT Federally Threatened
None No Federal, State, or City Status