[Federal Register Volume 81, Number 86 (Wednesday, May 4, 2016)]
[Notices]
[Pages 26817-26825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10479]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket Nos. FWS-HQ-ES-2015-0177 and 160223138-6138-01; FF09E40000 156
FXES11150900000]
RIN 1018-BB08; 0648-BF79
Candidate Conservation Agreements With Assurances Policy
AGENCIES: U.S. Fish and Wildlife Service (FWS), Interior; National
Marine Fisheries Service (NMFS), Commerce.
ACTION: Announcement of draft revised policy and solicitation of public
comment.
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SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service (Services when referring to both, and Service when
referring to when the action is taken by
[[Page 26818]]
one agency), announce proposed revisions to the Candidate Conservation
Agreements with Assurances policy under the Endangered Species Act of
1973, as amended. We propose to add a definition of ``net conservation
benefit'' to this policy and to eliminate references to the confusing
requirement of ``other necessary properties'' to clarify the level of
conservation effort each agreement needs to include in order for the
Service to approve an agreement. In a separate document published in
today's Federal Register, the U.S. Fish and Wildlife Service is
proposing changes to its regulations regarding Candidate Conservation
Agreements with Assurances to make them consistent with these proposed
changes to the policy.
DATES: We will accept comments that we receive on or before July 5,
2016. Comments submitted electronically using the Federal eRulemaking
Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern
Time on the closing date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the Search box enter the Docket number for the draft policy, which is
FWS-HQ-ES-2015-0177. You may enter a comment by clicking on ``Comment
Now!'' Please ensure that you have found the correct document before
submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: Docket No. FWS-HQ-ES-2015-0177; Division of Policy, Performance,
and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg
Pike; MS: BPHC; Falls Church, VA 22041.
We will post all comments on http://www.regulations.gov. This generally
means that we will post any personal information you provide us (see
Request for Information, below, for more information).
FOR FURTHER INFORMATION CONTACT: Jim Serfis, U.S. Fish and Wildlife
Service, Chief, Branch of Conservation and Communications, U.S. Fish
and Wildlife Service Headquarters, MS: ES, 5275 Leesburg Pike, Falls
Church, VA 22041-3803 (telephone 703-358-2171); or Angela Somma,
National Marine Fisheries Service, Chief, Endangered Species
Conservation Division, Office of Protected Resources, 1315 East-West
Highway, Silver Spring, MD 20910 (telephone 301-427-8403, facsimile
301-713-0376). Persons who use a telecommunications device for the deaf
may call the Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS) are charged with implementing the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA or Act);
among the purposes of the ESA are to provide a means to conserve the
ecosystems upon which species listed as endangered or threatened depend
and a program for listed species conservation. Through the Candidate
Conservation program, one of the Services' goals is to encourage the
public to implement specific conservation measures for declining
species prior to them being listed under the ESA. The cumulative
outcome of such conservation measures may result in not needing to list
a species, or may result in listing a species as threatened instead of
endangered and provide the basis for its recovery and eventual removal
from the protections of the ESA. The Services put in place a voluntary
conservation program for non-Federal property owners to help accomplish
this goal: Candidate Conservation Agreements with Assurances (CCAAs).
The policy for this type of agreement was finalized on June 17, 1999
(64 FR 32726), along with implementing regulations for FWS in part 17
of title 50 of the Code of Federal Regulations (CFR) (64 FR 32706). The
FWS revised the CCAA regulations in 2004 (69 FR 24084; May 2, 2004) to
make them easier to understand and implement by defining ``property
owner,'' and clarifying several points, including the transfer of
permits, permit revocation, and advanced notification of take.
To participate in a CCAA, non-Federal property owners agree to
implement specific conservation measures on their land that reduce or
eliminate threats to the species that are covered under the agreement.
An ESA section 10(a)(1)(A) enhancement of survival permit is issued to
the agreement participant providing a specific level of incidental take
coverage should the property owner's agreed-upon conservation measures
and routine property management actions (e.g., agricultural, ranching,
or forestry activities) result in take of the covered species if
listed. Property owners receive assurances that they will not be
required to undertake any other conservation measures than those agreed
to, even if new information indicates that additional or revised
conservation measures are needed for the species, and they will not be
subject to additional resource use or land use restrictions.
Under the current policy, to approve a CCAA we must ``determine
that the benefits of the conservation measures implemented by a
property owner under a CCAA, when combined with those benefits that
would be achieved if it is assumed that conservation measures were also
to be implemented on other necessary properties, would preclude or
remove any need to list the covered species.'' The hypothetical concept
of conservation measures needing to be implemented on ``other necessary
properties'' has caused confusion, and therefore we are clarifying and
revising the CCAA standard to require a net conservation benefit to the
covered species specifically on the property to be enrolled and
eliminating references to ``other necessary properties.''
Proposed Revisions to Candidate Conservation Agreements With Assurances
Policy
Based on our experience reviewing and approving CCAAs over the past
16 years, we are proposing changes to the policy that will clarify the
level of conservation effort each agreement needs to include in order
for the Service to approve an agreement. We are proposing the following
changes to the policy primarily to (a) address confusion regarding the
existing CCAA approval requirements (standards) and (b) make CCAAs more
consistent with Safe Harbor Agreement requirements, because these
agreements have similar purposes, which are to provide a conservation
benefit to the covered species while providing assurances to non-
Federal property owners:
(1) Add a new definition of ``net conservation benefit'' to Part 2.
What Definitions Apply to this Policy?:
Net conservation benefit (for CCAA) is defined as the cumulative
benefits of specific conservation measures designed to improve the
status of a covered species by removing or minimizing threats,
stabilizing populations, and increasing its numbers and improving its
habitat. The benefit would be measured by the projected increase in the
species' population or improvement of the species' habitat, taking into
account the duration of the Agreement and any off-setting adverse
effects attributable to the incidental taking allowed by the
enhancement of survival permit. The conservation measures and property
management activities covered by the agreement must be designed to
reduce or eliminate those current and future threats on the property
that are under the property owner's control, in order to increase the
species'
[[Page 26819]]
populations or improve its habitat. In the case where the species and
habitat are already adequately managed to the benefit of the species, a
net conservation benefit will be achieved when the property owner
commits to manage the species for a specified period of time with the
anticipation that the population will increase or habitat quality will
improve.
(2) Delete the definition of ``other necessary properties'' under
Part 2. What Definitions Apply to this Policy? and delete references to
this term from the CCAA policy as follows:
Revise the third sentence in the second paragraph of Part
1. What is the Purpose of the Policy? to read as follows: Accordingly,
the Service will enter into an Agreement when we determine that the
conservation measures to be implemented address the current and
anticipated future threats that are under the property owner's control
and will result in a net conservation benefit to the covered species.
Revise the fifth paragraph under Part 1 to read as
follows: The Service must determine that the benefits of the
conservation measures to be implemented by a property owner under a
CCAA are reasonably expected to result in a net conservation benefit to
the covered species. Pursuant to section 7 of the ESA, the Service must
also ensure that the conservation measures and ongoing property
management activities included in a CCAA, and the incidental take
allowed under the enhancement of survival section 10(a)(1)(A) permit
for these measures and activities are not likely to jeopardize listed
species or species proposed for listing and are not likely to destroy
or adversely modify proposed or designated critical habitat.
Revise section C of Part 3. What Are Candidate
Conservation Agreements With Assurances? to read as follows: The
benefits expected to result from the conservation measures described in
B above (e.g., increase in population numbers; enhancement,
restoration, or preservation of habitat; removal of threats) and from
the conditions that the participating non-Federal property owner agrees
to maintain. The Service must determine that the benefits of the
conservation measures implemented by a property owner under a CCAA will
reasonably be expected to provide a net conservation benefit.
Revise Part 4. What Are the Benefits to the Species? to
read as follows: Before entering into a CCAA, the Service must make a
written finding that the benefits of the conservation measures to be
implemented by a property owner under a CCAA would result in a net
conservation benefit to the covered species. If the Service and the
participating property owner cannot agree on conservation measures that
satisfy this requirement, the Service will not enter into the
Agreement. Expected benefits of the specific conservation measures
could include, but are not limited to: removal or reduction of current
and anticipated future threats for a specified period of time;
restoration, enhancement, or preservation of habitat; maintenance or
increase of population numbers; and reduction or elimination of impacts
to the species from agreed-upon, ongoing property management actions.
(3) Revise the definition of ``Non-Federal property owner'' in Part
2. What Definitions Apply to this Policy? to be consistent with the
definition of ``property owner'' found at 50 CFR 17.3. The revised
definition makes it clear that participants in a CCAA may include
entities that own the property as well as entities that lease or hold
other interests in the property, as long as they have the authority to
carry out the proposed management activities on the land covered by the
CCAA. Also note for purposes of this policy that ``management
activities'' includes the conservation measures included in the CCAA.
The revised definition reads as follows:
Property owner means a person with a fee simple, leasehold, or
other property interest (including owners of water rights or other
natural resources), or any other entity that may have a property
interest, sufficient to carry out the proposed management activities,
subject to applicable State law, on non-Federal land.
(4) Add language to Part 3 to further explain the assurances
provided to a property owner who is enrolled in a CCAA if there are
changed circumstances or unforeseen circumstances that could require
changes to or additional conservation measures. This language is
already included in FWS's regulations at 50 CFR 17.22(d)(5) and
17.32(d)(5) and does not represent a change in current CCAA practice.
Adding this language to the policy will make the policy and regulations
consistent.
(5) Add language to Part 8 to require that a property owner notify
the Services prior to termination of their CCAA. Currently, the FWS
includes this requirement as part of the conditions of the section
10(a)(1)(A) permit that is issued in conjunction with a CCAA. So while
this is new language the Services are adding to the policy, it is not a
new practice in how the FWS administers CCAAs.
(6) Revise the first sentence of Part 10 by adding ``and meets the
applicable permit issuance criteria'' to make it clear that any
property owner who agrees to become a party to an original Agreement,
through a transfer, must meet the issuance criteria for a CCAA. While
most of the issuance criteria would already be met, assuming the
transferred CCAA was not changing in any major way, in particular, the
FWS would need to ensure the new property owner would meet issuance
criteria at 50 CFR 17.22(d)(2)(vi) and 17.32(d)(2)(vi) which requires
that the applicant (i.e., property owner) has shown capability for and
commitment to implementing all of the terms of the Agreement. While
this is new language being added to the policy, it is not a new
requirement for a CCAA but serves to make the policy and regulations
consistent.
(7) Revise additional language in the policy to improve clarity.
Draft Revised Candidate Conservation Agreements With Assurances Policy
Part 1. What is the purpose of the policy?
This policy is intended to facilitate the conservation of species
proposed for listing under the Endangered Species Act (ESA) and
candidate species, and species likely to become candidates or proposed
for listing in the near future, by giving non-Federal citizens, States,
local governments, Tribes, businesses, organizations, and other non-
Federal property owners incentives to implement conservation measures
for declining species by providing regulatory assurances with regard to
land, water, or resource use restrictions that might otherwise apply
should the species later become listed as endangered or threatened
under the ESA. Under the policy, property owners who commit in a
Candidate Conservation Agreement with Assurances (CCAA or Agreement) to
implement mutually agreed-upon conservation measures for a species
proposed for listing or candidate species, or a species likely to
become a candidate or proposed for listing in the near future, will
receive assurances from the Service that additional conservation
measures above and beyond those contained in the Agreement will not be
required, and that additional land, water, or resource use restrictions
will not be imposed upon them should the species become listed in the
future. In determining whether to enter into a CCAA, the Service will
consider the
[[Page 26820]]
extent to which the Agreement reduces threats to the covered species so
as to contribute to the conservation and stabilization of populations
and habitat of the species.
While the Services recognize that the actions of a single property
owner usually will not sufficiently contribute to the conservation of
the species to remove the need to list it, we also recognize that the
collective result of the conservation measures of many property owners
may remove the need to list the species. Accordingly, the Service will
enter into an Agreement when we determine that the conservation
measures to be implemented address the current and anticipated future
threats that are under the property owner's control and will result in
a net conservation benefit to the covered species. While some property
owners are willing to manage their lands to benefit species proposed
for listing, candidate species, or species likely to become candidates
or proposed for listing in the near future, most desire some degree of
regulatory certainty and assurances with regard to possible future
land, water, or resource use restrictions that may be imposed if the
species is listed in the future.
The Service will provide regulatory assurances to a non-Federal
property owner who enters into a CCAA by authorizing, through issuance
of an enhancement of survival permit under section 10(a)(1)(A) of the
ESA, a specified level of incidental take of the covered species.
Incidental take authorization and the associated agreement benefit
property owners in two ways. First, in the event the species is listed,
incidental take authorization enables property owners to continue
current and agreed-upon land uses that have the potential to cause
take, provided the take is at or reduced to a level consistent with the
overall goal of providing a net conservation benefit to the species.
Second, the property owner is provided the assurance that, if the
species is listed, no additional conservation measures will be required
and no additional land use restrictions will be imposed.
These Agreements will be developed in coordination and cooperation
with appropriate State fish and wildlife agencies and other affected
State agencies and Tribes. Coordination with State fish and wildlife
agencies is particularly important given their primary responsibilities
and authorities for the management of unlisted resident species. These
Agreements must be consistent with applicable State laws and
regulations governing the management of these species.
The Service must determine that the benefits of the conservation
measures to be implemented by a property owner under a CCAA are
reasonably expected to result in a net conservation benefit to the
covered species. Pursuant to section 7 of the ESA, the Service must
also ensure that the conservation measures and ongoing property
management activities included in a CCAA, and the incidental take
allowed under the enhancement of survival section 10(a)(1)(A) permit
for these measures and activities, are not likely to jeopardize listed
species or species proposed for listing and are not likely to destroy
or adversely modify proposed or designated critical habitat.
Because some property owners may not have the necessary resources
or expertise to develop a CCAA, the Services are committed to
providing, to the maximum extent practicable given available resources,
the necessary technical assistance to develop Agreements and prepare
enhancement of survival permit applications. Also, based on available
resources, the Service may assist or train property owners to implement
conservation measures. Development of a biologically sound Agreement
and enhancement of survival permit application is intricately linked.
The Service will process the permit application following the
procedures described in 50 CFR 17.22(d)(1) and 17.32(d)(1), and part
222, as appropriate. All terms and conditions of the permit must be
consistent with the specific conservation measures included in the
associated CCAA.
Part 2. What definitions apply to this policy?
The following definitions apply for the purposes of this policy.
Candidate Conservation Agreement (CCA) means an agreement signed by
either Service, or both Services jointly, and other Federal or State
agencies, local governments, Tribes, businesses, organizations, or a
citizen that identifies specific conservation measures that the
participants will voluntarily undertake to conserve the covered
species. There are no specific requirements for entering into a CCA and
no standard has to be met; no incidental take permit or assurances are
provided under these Agreements.
Candidate Conservation Agreements with Assurances means a Candidate
Conservation Agreement with a non-Federal property owner that meets the
standards described in this policy and provides the property owner with
the assurances described in this policy.
Candidate Conservation Assurances means the associated assurances
that are authorized by an enhancement of survival permit. Such
assurances may apply to a whole parcel of land, or a portion, as
identified in the Agreement. The assurances provided to a non-Federal
property owner in a CCAA are that no additional conservation measures
and no land, water, or resource use restrictions, in addition to the
measures and restrictions described in the Agreement will be imposed
should the covered species become listed in the future. Also the
enhancement of survival permit provides a prescribed level of
incidental take that may occur from agreed-upon, ongoing property
management actions and the conservation measures.
Candidate species are defined differently by the Services. The Fish
and Wildlife Service (FWS) defines candidate species as species for
which FWS has sufficient information on file relative to status and
threats to support issuance of proposed listing rules. The National
Marine Fisheries Service (NMFS) defines candidate species as (1)
species that are the subject of a petition to list and for which NMFS
has determined that listing may be warranted, pursuant to section
4(b)(3)(A) of the ESA, and (2) species that are not the subject of a
petition but for which NMFS has announced the initiation of a status
review in the Federal Register. The term ``candidate species'' used in
this policy refers to those species designated as candidates by either
of the Services.
Conservation measures as it applies to CCAAs are actions that a
property owner voluntarily agrees to undertake when entering into a
CCAA that, by addressing the threats that are occurring or have the
potential to occur on their property, will result in an improvement or
expansion of the species' habitat with the potential for an increase in
the species' population numbers. The appropriate conservation measures
designed to address the threats that are causing the species to decline
will be based on the best available scientific information relative to
the conservation needs of the species such as those contained in an up-
to-date conservation strategy.
Covered species means those species that are the subject of a CCAA
and associated enhancement of survival permit. Covered species are
limited to species that are candidates or proposed for listing and
species that are likely to become candidates or proposed for listing in
the near future.
Enhancement of survival permit means a permit issued under section
[[Page 26821]]
10(a)(1)(A) of the ESA that, as related to this policy, authorizes the
permittee to incidentally take species covered in a CCAA.
Net conservation benefit (for CCAA) is defined as the cumulative
benefits of specific conservation measures designed to improve the
status of a covered species by removing or minimizing threats,
stabilizing populations, and increasing its numbers and improving its
habitat. The benefit is measured by the projected increase in the
species' population or improvement of the species' habitat, taking into
account the duration of the Agreement and any off-setting adverse
effects attributable to the incidental taking allowed by the
enhancement of survival permit. The conservation measures and property
management activities covered by the agreement must be designed to
reduce or eliminate those current and future threats on the property
that are under the property owner's control, in order to increase the
species' populations or improve its habitat. In the case where the
species and habitat is already adequately managed to the benefit of the
species, a net conservation benefit will be achieved when the property
owner commits to manage the species for a specified period of time with
the anticipation that the population will increase or habitat quality
will improve.
Property owner means a person with a fee simple, leasehold, or
other property interest (including owners of water rights or other
natural resources), or any other entity that may have a property
interest, sufficient to carry out the proposed management activities,
subject to applicable State law, on non-Federal land.
Part 3. What are Candidate Conservation Agreements With Assurances?
A CCAA will identify or include:
A. The population levels (if available or determinable) of the
covered species existing at the time the parties negotiate the
Agreement; the existing habitat characteristics that sustain any
current, permanent, or seasonal use, or potential use by the covered
species on lands or waters in which the participating property owner
has an interest; and consideration of the existing and anticipated
condition of the landscape of the contiguous lands or waters not on the
participating owner's property so that the property enrolled in a CCAA
may serve as a habitat corridor or connector or as a potential source
for the covered species to populate the property to be enrolled if they
do not already exist on that property.
B. The conservation measures the participating property owner
agrees to undertake to conserve the species included in the Agreement.
C. The benefits expected to result from the conservation measures
described in B above (e.g., increase in population numbers;
enhancement, restoration, or preservation of habitat; removal of
threats) and from the conditions that the participating property owner
agrees to maintain. The Service must determine that the benefits of the
conservation measures implemented by a property owner under a CCAA will
reasonably be expected to provide a net conservation benefit.
D. Assurances related to take of the covered species will be
authorized by the Service through a section 10(a)(1)(A) enhancement of
survival permit (see Part 5). Assurances include that no additional
conservation measures will be required and no additional land, water,
or resource use restrictions will be imposed beyond those described in
B above should the covered species be listed in the future. If
conservation measures not provided for in the CCAA are necessary to
respond to changed circumstances, the Service will not require any
conservation measures in addition to those provided for in the CCAA
without the consent of the property owner, provided the CCAA is being
properly implemented. If additional conservation measures are necessary
to respond to unforeseen circumstances, the Service may require
additional measures of the property owner where the CCAA is being
properly implemented, only if those measures maintain the original
terms of the CCAA to the maximum extent possible. Additional
conservation measures will not involve the commitment of additional
land, water, or financial compensation, or additional restrictions on
the use of land, water, or other natural resources available for
development or use under the original terms of the CCAA without the
consent of the property owner. The permit also allows a prescribed
amount of incidental take that may result from the conservation
measures or from the agreed-to ongoing property management actions.
E. A monitoring provision that requires measuring and reporting on:
(1) Progress in implementing the conservation measures described in B
above, and (2) changes in habitat conditions and the species' status
resulting from these measures.
F. As appropriate, a notification requirement to provide the
Service or appropriate State agencies with a reasonable opportunity to
rescue individuals of the covered species before any authorized
incidental take occurs.
Part 4. What are the benefits to the species?
Before entering into a CCAA, the Service must make a written
finding that the benefits of the conservation measures to be
implemented by a property owner under an Agreement would reasonably be
expected to result in a net conservation benefit to the covered
species. If the Service and the participating property owner cannot
agree on conservation measures that satisfy this requirement, the
Service will not enter into the Agreement. Expected benefits of the
specific conservation measures could include, but are not limited to:
removal or reduction of current and anticipated future threats for a
specified period of time; restoration, enhancement, or preservation of
habitat; maintenance or increase of population numbers; and reduction
or elimination of impacts to the species from agreed-upon, ongoing
property management actions.
Part 5. What are assurances to property owners?
Through a CCAA, the Service will provide the assurance that, if any
species covered by the Agreement is listed, and the Agreement has been
implemented in good faith by the participating property owner, the
Service will not require additional conservation measures nor impose
additional land, water, or resource use restrictions beyond those the
property owner voluntarily committed to under the terms of the original
Agreement. Assurances involving incidental take will be authorized
through issuance of a section 10(a)(1)(A) enhancement of survival
permit, which will allow the property owner to take a specific number
of individuals of the covered species or quantity of habitat, should
the species be listed, as long as the level of take is consistent with
those levels agreed upon and identified in the Agreement. The Service
will issue an enhancement of survival permit at the time of entering
into the CCAA. This permit will have a delayed effective date tied to
the date of any future listing of the covered species. The Service is
prepared as a last resort to revoke a permit implementing a CCAA where
continuation of the permitted activity would be likely to result in
jeopardy to a species covered by the permit. Prior to taking such a
step, however, the Service will first have to exercise all possible
means to remedy such a situation.
[[Page 26822]]
Part 6. How does the service comply with the National Environmental
Policy Act?
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321 et seq.), and the regulations of the Council on
Environmental Quality (CEQ) require all Federal agencies to examine the
environmental impacts of their actions, to analyze a full range of
alternatives, and to use public participation in the planning and
implementation of their actions. The purpose of the NEPA process is to
help Federal agencies make better decisions and to ensure that those
decisions are based on an understanding of environmental consequences.
Federal agencies can satisfy NEPA requirements either by preparing an
Environmental Assessment (EA) or Environmental Impact Statement (EIS)
or by showing that the proposed action is categorically excluded from
individual NEPA analysis. The Service will review each proposed CCAA
and associated enhancement of survival permit application for other
significant environmental, economic, social, historical or cultural
impact, or for significant controversy (516 DM 2, Appendix 2 for FWS
and the National Oceanic and Atmospheric Administration's (NOAA's)
Environmental Review Procedures and NOAA Administrative Order Series
216-6). If the Service determines that the Agreement and permit will
likely result in any of the above effects, preparation of an EA or EIS
will be required. General guidance on when the Service excludes an
action categorically and when and how to prepare an EA or EIS is found
in the FWS's Administrative Manual (30 AM 3) and NOAA Administrative
Order Series 216-6. The Services expect that most CCAAs and associated
enhancement of survival permits will result in minor or negligible
effects on the environment and will be categorically excluded from
individual NEPA analysis.
Part 7. Will there be public review?
Public participation in the development of a proposed CCAA will be
provided only when agreed to by the participating property owner.
However, the Service will make every proposed Agreement available for
public review and comment as part of the public evaluation process that
is statutorily required for issuance of the associated enhancement of
survival permit. This comment period will generally be 30 days. The
public will also be given other opportunities to review CCAAs in
certain cases. For example, when the Service receives an Agreement
covering a species proposed for listing, and when the Service
determines, based upon a preliminary evaluation, that the Agreement
could potentially justify withdrawal of the proposed rule to list the
species under the ESA, the comment period for the proposed rule will be
extended or reopened to allow for public comments on the CCAA's
adequacy in removing or reducing threats to the species. However, the
statutory deadlines in the ESA may prevent the Service from considering
in their final listing determination those CCAAs that are not received
within a reasonable period of time after issuance of the proposed rule.
Part 8. Do property owners retain their discretion?
Nothing in this policy prevents a participating property owner from
implementing conservation measures not described in the Agreement,
provided such measures are consistent with the conservation measures
and conservation goal described in the CCAA. The Service will provide
technical advice, to the maximum extent practicable, to the property
owner when requested. Additionally, a participating property owner can
terminate the Agreement prior to its expiration date, even if the terms
and conditions of the Agreement have not been realized. However, the
property owner is required to notify the Service prior to termination.
The enhancement of survival permit is terminated at the same time, and
the property owner would no longer have the assurances.
Part 9. What is the discretion of all parties?
Nothing in this policy compels any party to enter into a CCAA at
any time. Entering into an Agreement is voluntary for property owners
and the Service. Unless specifically noted, a CCAA does not otherwise
create or waive any legal rights of any party to the Agreement.
Part 10. Can agreements be transferred?
If a property owner who is a party to a CCAA transfers ownership of
the enrolled property, the Service will regard the new property owner
as having the same rights and obligations as the original property
owner if the new property owner agrees to become a party to the
original Agreement and meets the applicable permit issuance criteria.
Actions taken by the new participating property owner that result in
the incidental take of species covered by the Agreement would be
authorized if the new property owner maintains the terms and conditions
of the original Agreement. If the new property owner does not become a
party to the Agreement, the new owner would neither incur
responsibilities nor receive any assurances relative to the ESA take
prohibitions resulting from listing of the covered species. An
Agreement must commit the participating property owner to notify the
Service of any transfer of ownership at the time of the transfer of any
property subject to the CCAA. This provision allows the Service the
opportunity to contact the new property owner to explain the prior CCAA
and to determine whether the new property owner would like to continue
the Agreement or enter a new Agreement. When a new property owner
continues an existing Agreement, the Service will honor the terms and
conditions of that Agreement and associated permit.
Part 11. Is monitoring required?
The Service will ensure that necessary monitoring provisions are
included in the CCAA and associated enhancement of survival permit.
Monitoring is necessary to ensure that the conservation measures
specified in an Agreement and permit are being implemented and to learn
about the effectiveness of the agreed-upon conservation measures. In
particular, when adaptive management principles are included in an
Agreement, monitoring is especially helpful for obtaining the
information needed to measure the effectiveness of the conservation
program and detect changes in conditions. However, the level of effort
and expense required for monitoring can vary substantially among CCAAs
depending on the circumstances. For many, monitoring can be conducted
by the Service or a State agency and may involve only a brief site
inspection and appropriate documentation. Monitoring programs must be
agreed upon prior to public review and comment. The Services are
committed to providing as much technical assistance as possible in the
development of acceptable monitoring programs. These monitoring
programs will provide valuable information that the Services can use to
evaluate program implementation and success.
Part 12. How are cooperation and coordination with the States and
Tribes described in the policy?
Coordination between the Service, the appropriate State fish and
wildlife agencies, affected Tribal governments, and property owners is
important to the successful development and implementation of CCAAs.
When appropriate, the Service will coordinate
[[Page 26823]]
and consult with the affected State fish and wildlife agency and any
affected Tribal government that has a treaty right to any fish or
wildlife resources covered by a CCAA.
Request for Information
We solicit comments, information, and recommendations from
governmental agencies, Native American tribes, the scientific
community, industry groups, environmental interest groups, and any
other interested parties on this draft policy. All comments,
recommendations, and materials received by the date listed in DATES,
above, will be considered prior to the approval of a final policy.
In addition to more general comments and information, we
specifically request comment on the following aspects of the policy:
(1) Is the definition of ``Net conservation benefit (for CCAA)''
clear as a requirement (or standard)?
(2) Will the revisions be an improvement over the current policy?
You may submit your information concerning this draft revised
policy by one of the methods listed in ADDRESSES. If you submit
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the
Web site. If your submission is made via a hardcopy that includes
personal identifying information, you may request at the top of your
document that we withhold this personal identifying information from
public review. However, we cannot guarantee that we will be able to do
so. We will post all hardcopy submissions on http://www.regulations.gov.
Information and supporting documentation that we receive in
response to this draft policy will be available for you to review at
http://www.regulations.gov, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service Headquarters (see FOR
FURTHER INFORMATION CONTACT).
Required Determinations
As discussed above, we intend to apply this policy, when finalized,
in considering whether to approve a CCAA. Below we discuss compliance
with several Executive Orders and statutes as they pertain to this
draft policy.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this policy is
not a significant rule.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that our regulatory system must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this policy in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities. We are
certifying that the proposed revisions to the CCAA policy would not
have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale. This draft
policy sets forth the Service's revisions to existing CCAA policy. A
full description of the action, why it is being considered, and the
legal basis for this action are set forth earlier in this document. The
policy will provide clarity to State or local government agencies,
Tribes, nongovernmental organizations, or private individuals who are
considering entering into voluntary CCAAs.
The Services, States, local government agencies, Tribes,
nongovernmental organizations, and private landowners are the entities
that are affected by the draft revision to the existing policy. While
the policy revision introduces and defines the term ``net conservation
benefit'' for CCAAs and clarifies what must be achieved in order for a
CCAA to be approved, the Services believe that this addition does not
necessarily change the level of conservation currently required under a
CCAA.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the ``Regulatory
Flexibility Act'' section above, this draft policy would not
``significantly or uniquely'' affect small governments. As explained
above, small governments could potentially be affected if they chose to
enter into a CCAA. However, we have determined and certify pursuant to
the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this policy would
not impose a cost of $100 million or more in any given year on local or
State governments or private entities.
(b) This draft policy would not produce a Federal mandate on State,
local, or Tribal governments or the private sector of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This policy, if
finalized, does not impose any additional obligations on State, local,
or tribal governments who participate in a CCAA by requiring them to
take additional or different conservation measures above what they
would be required to take under the current CCAA policy. As such, a
Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630, this draft policy would
not have significant takings implications. This draft policy would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this draft policy (1) would not effectively compel
a property owner to suffer a physical invasion of property and (2)
would not deny all economically beneficial or productive use of the
land or aquatic resources. This draft policy would substantially
advance a legitimate government interest (clarify existing policy
through which non-
[[Page 26824]]
Federal entities may voluntarily help to conserve unlisted and listed
species) and would not present a barrier to all reasonable and expected
beneficial use of private property.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this draft
policy does not have significant Federalism effects and a federalism
summary impact statement is not required. This draft policy revision
pertains only to the Service's requirement of a net conservation
benefit to the covered species for approval of a CCAA and would not
have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
this draft policy would not unduly burden the judicial system and meets
the requirements of sections 3(a) and 3(b)(2) of the Order. We are
revising the existing policy for CCAAs specifically for the purpose of
eliminating ambiguity and presenting the policy provisions in clear
language.
Paperwork Reduction Act of 1995 (PRA)
This policy revision does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). This policy will
not impose new recordkeeping or reporting requirements on State or
local governments; individuals; businesses; or organizations. OMB has
reviewed and approved the application form that property owners use to
apply for approval of a CCAA and associated enhancement of survival
permit (Form 3-200-54) and assigned OMB control number 1018-0094, which
expires January 31, 2017. An agency may not conduct or sponsor and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We have analyzed the draft policy in accordance with the criteria
of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)),
the Council on Environmental Quality's Regulations for Implementing the
Procedural Provisions of NEPA (40 CFR 1500-1508), and the Department of
the Interior's NEPA procedures (516 DM 2 and 8; 43 CFR part 46) and
NOAA's Administrative Order regarding NEPA compliance (NAO 216-6 (May
20, 1999)).
We have determined that the draft policy is categorically excluded
from NEPA documentation requirements consistent with 40 CFR 1508.4 and
43 CFR 46.210(i). This categorical exclusion applies to policies,
directives, regulations, and guidelines that are ``of an
administrative, financial, legal, technical, or procedural nature.''
This action does not trigger an extraordinary circumstance, as outlined
in 43 CFR 46.215, applicable to the categorical exclusion. Therefore,
the draft policy does not constitute a major Federal action
significantly affecting the quality of the human environment.
We have also determined that this action satisfies the standards
for reliance upon a categorical exclusion under NOAA Administrative
Order (NAO) 216-6. Specifically, the policy fits within two categorical
exclusion provisions in Sec. 6.03c.3(i)--for ``preparation of
regulations, Orders, manuals, or other guidance that implement, but do
not substantially change these documents, or other guidance'' and for
``policy directives, regulations and guidelines of an administrative,
financial, legal, technical or procedural nature.'' NAO 216-6, Sec.
6.03c.3(i). The policy would not trigger an exception precluding
reliance on the categorical exclusions because it does not involve a
geographic area with unique characteristics, is not the subject of
public controversy based on potential environmental consequences, will
not result in uncertain environmental impacts or unique or unknown
risks, does not establish a precedent or decision in principle about
future proposals, will not have significant cumulative impacts, and
will not have any adverse effects upon endangered or threatened species
or their habitats. Id. at Sec. 5.05c. As such, it is categorically
excluded from the need to prepare an Environmental Assessment.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior Manual at 512 DM 2, we have considered possible effects on
federally recognized Indian tribes and have preliminarily determined
that there are no potential adverse effects of issuing this draft
policy. Our intent with the draft policy revision is to provide clarity
in regard to the net conservation benefit requirements for a CCAA to be
approved, including any agreements in which Tribes may choose to
participate. We will continue to work with Tribes as we finalize this
draft policy.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The draft policy, if made final, is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action and no Statement of
Energy Effects is required.
Clarity of the Draft Policy
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule or policy we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise this draft policy, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you believe lists or tables would be
useful, etc.
Authors
The primary authors of the policy are staff members of the
Ecological Services Program, Branch of Communications and Candidate
Conservation, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS:
ES, Falls Church, VA 22041-3803.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
[[Page 26825]]
Dated: April 13, 2016.
Noah Matson,
Acting Director, U.S. Fish and Wildlife Service.
Dated: April 13, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016-10479 Filed 5-3-16; 8:45 am]
BILLING CODE 4333-15-P