[Federal Register Volume 79, Number 140 (Tuesday, July 22, 2014)]
[Notices]
[Pages 42525-42532]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17022]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-R9-ES-2011-0099; FF09E40000 145 FXES11150900000]
RIN 1018-AY29
Policy Regarding Voluntary Prelisting Conservation Actions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Announcement of draft policy and solicitation of public
comment.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a draft
policy on crediting voluntary conservation actions taken for species
prior to their listing under the Endangered Species Act. The proposed
policy seeks to give landowners, government agencies, and others
incentives to carry out voluntary conservation actions for nonlisted
species by allowing the benefits to the species from a voluntary
conservation action undertaken prior to listing under the Act to be
used--either by the person who undertook such action or by a third
party--to mitigate or to serve as a compensatory measure for the
detrimental effects of another action undertaken after listing. This
policy will help us further our efforts to protect native species and
conserve the ecosystems on which they depend.
DATES:
General Comments: We will accept comments from all interested
parties until September 22, 2014. Please note that if you are using the
Federal eRulemaking Portal (see ADDRESSES below), the deadline for
submitting an electronic comment is 11:59 p.m. Eastern Standard Time on
this date.
Comments on the Information Collections Aspects of this Proposal:
Comments on the information collection aspects of the proposed policy
will be considered if received by August 21, 2014.
ADDRESSES:
General Comments: 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 proposed policy, which
is FWS-R9-ES-2011-0099. 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-R9-ES-2011-0099; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, PDM-
2042; Arlington, VA 22203.
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).
Comments on the Information Collection Aspects of this Proposal:
Send comments specific to the information collection aspects of this
proposed policy to Desk Officer for the Department of the Interior at
OMB--OIRA at (202) 395-5806 (fax) or OIRA_Submission@omb.eop.gov
(email). Please provide a copy of your comments to the Service
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 22203
(mail), or hope_grey@fws.gov (email).
FOR FURTHER INFORMATION CONTACT: Jim Serfis, U.S. Fish and Wildlife
Service, Branch of Communication and Candidate Conservation, 4401 N
Fairfax Drive, Suite 420, Arlington, VA 22203, telephone 703/358-2171;
facsimile 703/358-1735.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service (Service or FWS) is charged with
implementing the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.) (Act); the goal of the Act is to provide a means to
conserve the ecosystems upon which listed species depend and a program
for listed species conservation. Through its Candidate Conservation
program, the Service encourages the public to take conservation actions
for species prior to them being listed under the Act. Doing so may
result in precluding the need to list a species, may result in listing
a
[[Page 42526]]
species as threatened instead of endangered, or, if a species becomes
listed, may provide the basis for its recovery and eventual removal
from the protections of the Act. As explained below, the proposed
policy provides incentives to the public to implement these prelisting
conservation actions.
Recognizing that species benefit from focused conservation actions
taken to address threats to their survival, the Service encourages
landowners to conserve candidate and other at-risk species by
stabilizing and increasing populations so that the species may not need
listing. In March 2012, the Service published in the Federal Register
an advance notice of proposed rulemaking inviting the public to
identify potential changes to our regulations under the Act (77 FR
15354, March 15, 2012). Our goal was to create additional incentives
and improve or expand existing ones for landowners and others to invest
in early voluntary conservation actions to benefit species that may
become listed as threatened or endangered species. Because we received
a request from the Association of Fish and Wildlife Agencies to extend
the comment period, we published a notice in the Federal Register
extending the comment period an additional 60 days (77 FR 28347, May
14, 2012).
The comments and recommendations in the 95 responses the Service
received in response to the advance notice of proposed rulemaking
supported the tenet that, if the need to list a species under the Act
can be avoided, everyone, including the species, benefits. The
responses also underscored the need for incentives for individuals and
agencies, both Federal and State, to invest in conservation actions for
species prior to listing. The comments and recommendations made by the
individuals, organizations, and agencies covered an array of issues
such as the need for guidance on developing crediting programs,
updating the Service's mitigation policy, the need for conservation
strategies to guide candidate conservation agreements, streamlining the
conservation agreement process, and improving conservation banking. The
comments are available at http://www.regulations.gov in Docket No. FWS-
R9-ES-2011-0099.
The proposed policy described herein is based on recommendations
generated by the advance notice of proposed rulemaking. The Service
will address other recommendations through additional regulations,
policies, or guidance.
Introduction: Incentivizing voluntary conservation action prior to
listing. The proposed policy has two stated purposes, as set forth in
section 1. The first, and more general of these, is to incentivize
voluntary conservation actions on behalf of species before they reach
the point at which they need to be listed as threatened or endangered
under the Act. Such voluntary conservation actions, if carried out at a
sufficient scale, could contribute to precluding the need to list the
species. The proposed policy seeks to reward those who voluntarily
undertake to help the species when they have no legal obligation to do
so. As described in more detail later, the reward is that the benefits
to the species from a voluntary conservation action undertaken prior to
listing can be used--either by the person who undertook that action or
by a third party--to mitigate or be a compensatory measure for the
detrimental effects of another action undertaken after listing. In this
policy, the credit earned by undertaking a prelisting conservation
action can be transferred to a third party if the prelisting
conservation action and the credit are for the same species and within
the same State.
Clarifying existing regulations at 50 CFR 402.14(g)(8). A second,
more narrow, purpose of the proposed policy is to clarify a provision
that has been in the regulations that implement section 7 of the Act
since 1986, but that received little explanation then or thereafter.
That provision, set forth in 50 CFR 402.14(g)(8), states that the
Service ``will give appropriate consideration to any beneficial actions
taken by the Federal agency or applicant, including any actions taken
prior to the initiation of consultation'' during the course of
consultation under section 7(a)(2) of the Act or ``early consultation''
under section 7(a)(3). The proposed policy makes clear that beneficial
actions ``taken prior to the initiation of consultation'' include
actions taken prior to listing, provided they meet the policy's
definition of a ``voluntary prelisting action.'' In addition to
clarifying that prelisting beneficial actions are among the actions to
be given ``appropriate consideration,'' the policy also clarifies how
the Service will give appropriate consideration to those beneficial
actions that are subject to the policy. Specifically, in the course of
section 7 consultations, the Service will consider the beneficial
effects of a voluntary prelisting conservation action to be included as
part of the environmental baseline for the agency action if requested
by the action agency or, in the case of an agency action involving a
permit applicant, by such applicant.
The policy also makes clear that the Service will evaluate the
conservation value of a prelisting conservation action based on its
inclusion and priority in a conservation strategy for the species. A
conservation strategy is a foundational document that should guide all
conservation efforts for at-risk nonlisted species, including Federal,
State, Tribal, and private conservation actions. A strategy can be
authored by any one of these entities, but ideally it will be created
as a joint effort. Coordinated efforts will likely result in better
conservation outcomes for the species and efficiencies in implementing
and monitoring conservation actions. From the Service's perspective,
the primary goal of the strategy is to provide the necessary
information to guide management of a species so that it does not need
the protections of the Act.
How voluntary prelisting conservation actions are to be treated.
Section 2 of the policy sets forth in general terms how the Service
will treat voluntary prelisting conservation actions. Two possibilities
are described. First, such an action can be treated as a mitigation or
a compensatory measure to offset the impacts of the incidental taking
of a listed species for which a permit is sought under Section
10(a)(1)(B) of the Act. Alternatively, where a proposed action that
detrimentally affects a listed species is authorized, funded, or
carried out by a Federal agency, the voluntary prelisting conservation
action can be treated as a compensatory measure for the proposed
action. Section 7 of the Act, unlike Section 10(a)(1)(B), does not
explicitly require that detrimental impacts be mitigated, but it is
long-established practice under section 7 that Federal agencies or
their permit applicants can incorporate mitigating measures into their
proposed projects so as to reduce their overall impact. The proposed
policy makes clear that voluntary prelisting conservation measures can
be used in this manner.
Section 2 of the proposed policy also establishes that a voluntary
prelisting conservation action undertaken by anyone, including a
Federal agency, can be treated as described in the policy if the action
is undertaken in a State that chooses to participate. Thus, unlike some
other incentive-based policies (e.g., the Safe Harbor Agreements policy
(64 FR 32717, June 17, 1999) and the Candidate Conservation Agreements
with Assurances (CCAA) policy (64 FR 32726, June 17, 1999)) that apply
only to non-Federal property owners, the proposed policy applies to
anyone or any entity who wants to take advantage of it and who
undertakes the prelisting
[[Page 42527]]
conservation action in a participating State.
Defining voluntary prelisting conservation actions. Section 3 of
the proposed policy defines ``voluntary prelisting conservation
actions.'' The definition has three key components. First, the action
has to be undertaken before the species it is intended to benefit is
listed under the Act. An action can be undertaken at any time prior to
listing, including after the species has been proposed for listing.
Once a species is listed, however, no new voluntary prelisting
conservation actions can occur for the species, but ongoing actions
initiated prior to listing would continue. The policy also specifies
that actions taken prior to the policy being finalized will not be
considered. Second, the action must be truly voluntary, one that is not
required by the Act or by any other Federal, State, or local regulatory
mechanism.
Acknowledging the jurisdiction of the States over nonlisted
species, the last component requires the action be undertaken as part
of a State-administered program. In short, the proposed policy
contemplates the active engagement of the States in designing and
implementing a program to encourage voluntary prelisting conservation
actions, as further described in section 4 of the proposed policy. The
policy also makes it clear that States can use Federal funds in
accordance with Section 6 of the Act to measure, monitor, and provide
oversight to ensure the successful implementation and maintenance of
the voluntary pre-listing conservation actions as they relate to
candidate species. The States may contract with a third party to
fulfill the measuring, monitoring, and oversight obligations that are
necessary to ensure the successful implementation and maintenance of
the voluntary prelisting conservation actions.
Relationship to CCAAs and similar agreements. Although CCAAs and
voluntary prelisting conservation actions covered by the proposed
policy serve the same purpose, conservation of nonlisted species before
they become listed, they employ different mechanisms, have different
approval requirements, and have other important differences.
First, CCAAs and voluntary prelisting conservation actions employ
different mechanisms for achieving a conservation benefit to the
species. A CCAA is intended to provide a property owner (non-Federal)
with an assurance that, if the species covered by the CCAA is later
listed as threatened or endangered, no new restrictions or conservation
obligations will be imposed on the property owner for that species. In
contrast, the purpose of the proposed policy's treatment of a voluntary
prelisting conservation action is to give a property owner (Federal or
non-Federal) the opportunity to have that action serve as mitigation or
a compensatory measure for the detrimental impact of an action
undertaken after the species is listed as endangered or threatened.
Second, CCAAs are subject to more exacting approval requirements.
To qualify for a CCAA, a non-Federal property owner must commit to
carry out conservation measures that, assuming other necessary property
owners were to carry out commensurate conservation measures, would be
sufficient to preclude the need to list a species. In contrast, to be
treated as a voluntary prelisting conservation action under the
proposed policy, an action need only be beneficial to a particular
species; the policy requires no specific magnitude of benefit.
While it is possible for a voluntary prelisting conservation action
to satisfy the requirements of both the CCAA policy and this proposed
policy, the action cannot be treated under both policies: Using a
conservation action as mitigation or a compensatory measure against a
future detrimental action is inconsistent with the intent of the CCAA
policy to secure durable conservation commitments that would constitute
a particular property owner's necessary contributions to precluding the
need to list a species.
Role of the States. The role of the States under the proposed
policy, should they choose to participate, is addressed in greater
detail in section 4. This section of the proposed policy aims to ensure
the primacy of the States in conserving species before they are listed,
while ensuring an effective partnership with the Service so that
voluntary prelisting conservation actions will be recognized by the
Service in the event that the species is later listed. An important
role of the States is to ensure that voluntary prelisting conservation
actions are effectively implemented and maintained. The primary
tracking and oversight is to be done by the States who will then
annually provide information on the conservation actions to the
Service. In short, to avail themselves of the postlisting opportunity
provided by the proposed policy, persons planning to undertake
voluntary prelisting conservation actions must do so within the
framework of a State- or multi-State-approved program; the most recent
version of a State Wildlife Action Plan or other State conservation
strategies should provide useful guidance as to both the type and the
location of conservation actions that would be most beneficial for
particular species.
Some States may have their own laws or regulatory authorities
(separate from the Act) under which they can impose mitigation
requirements for certain activities. If that is the case, and a person
who undertakes a voluntary prelisting conservation action is allowed by
the State to treat the benefits of that action as fulfilling the
mitigation requirements of State law, the individual cannot
subsequently use the same action as mitigation for a separate activity
carried out after listing. That is, if used prior to listing to meet
the mitigation requirements of State law, the benefits of prelisting
conservation actions cannot be used again as mitigation for separate
actions carried out later. Use of prelisting conservation to meet State
mitigation requirements should be reflected in the register maintained
by a State so as to prevent such double counting.
Role of the Fish and Wildlife Service. The role of the Service is
addressed in section 5 of the proposed policy. This section explains
that the Service will assist the State(s), as needed, in tracking the
implementation and maintenance of the prelisting conservation actions.
While States have the primary role in managing species that are not
listed under the Act, they may not have the necessary resources to
fully track the prelisting conservation actions. Consequently, the
Service will assist the States, as needed, to help achieve the mutual
goal of conserving species before they need to be listed under the Act.
Additionally, the Service will coordinate between the State(s) and
other Federal agencies to help develop conservation actions and assist
in tracking the implementation and maintenance of those actions.
Quantifying beneficial and detrimental impacts. Providing credit
for an effort to mitigate or serve as a compensatory measure for the
impacts of a detrimental action on a species (or any other resource)
requires measuring both the detrimental impact and the offsetting
benefit to be secured through a mitigation action or compensatory
measure. Section 6 of the proposed policy provides that, in evaluating
the impacts of both detrimental actions and beneficial actions, the
Service will use the same criteria, standards, and metrics to quantify
the former as it uses to quantify the latter. However, over time, new
scientific information may indicate that the metric may need revision
or a new metric should be used. The Service
[[Page 42528]]
will work with the landowner to decide if the metric needs to be
changed. In cases where failure to utilize a new or revised metric
would appreciably reduce the likelihood of survival and recovery of the
affected species in the wild, the Service will require a new or
improved metric as appropriate and will alert the landowner. The
proposed policy does not itself specify what those uniform criteria,
standards, or metrics should be or even how they should be developed.
Instead, those will need to be developed separately and are likely to
vary from species to species or situation to situation. However, the
benefit of a voluntary prelisting conservation action for which credit
is given must be greater than the detriment from the action for which
the credit is used, that is, the benefit from the prelisting action,
combined with the detriment from a later action, must result in a
positive assistance to the recovery of the species. This would be
achieved by setting aside a specific percentage of the credits to gain
a positive assistance to the recovery of the species. The specific
percentage will depend on the species and the nature of the actions. In
addition, a voluntary prelisting conservation action can be
supplemented with an additional postlisting conservation action so that
the combined benefit of prelisting and postlisting conservation actions
is greater than the detriment from the postlisting detrimental actions.
Preferential use of voluntary prelisting conservation actions to
offset the impacts of post-listing activities. Since the purpose of the
proposed policy is to incentivize voluntary prelisting conservation
actions by allowing the benefits of such actions to serve as mitigation
or a compensatory measure for the detriments of postlisting actions,
that purpose would clearly be undercut if the Service were routinely to
require some other form of mitigation or compensatory measure for
actions that it consults on or authorizes after listing. Put
differently, those who invest in prelisting conservation actions under
the proposed policy are likely to want a reasonable assurance that,
when the Service evaluates the mitigation or compensatory measure needs
for postlisting activities, we will give consideration to those
already-established mitigation or compensatory measures. This scenario
does not require that in all cases the Service must use prelisting
conservation actions as mitigation or a compensatory measure for post-
listing detrimental actions. Where there is a mitigation or
compensatory measure alternative that clearly produces a better, or
more certain, environmental outcome, the Service can require or
encourage its use. Likewise, if the proponent of a postlisting action
can achieve a commensurate environmental outcome with less effort,
cost, and time expended, the proposed policy allows such proponent the
flexibility to make that choice.
Effect of using voluntary prelisting conservation actions to offset
the impact of post-listing activities. As previously noted, section 4
of the proposed policy makes clear that, if a State treats the benefits
of a prelisting conservation action as meeting State mitigation
requirements for actions carried out prior to listing, the use of those
benefits precludes their later reuse. In a parallel fashion, section 7
of the proposed policy provides that, after listing, once the Service
allows the benefits of a prelisting conservation action to serve as
mitigation or a compensatory measure for the impacts of a postlisting
action, those same benefits may not be used again to offset the impacts
of other later postlisting actions.
Proposed Policy Regarding Voluntary Prelisting Conservation Actions
Section 1. Purpose: The purpose of this policy is to incentivize
voluntary conservation efforts on behalf of species before they are
listed as endangered or threatened species under the Endangered Species
Act (``Act''), and to clarify the manner in which the Service ``will
give appropriate consideration to any beneficial actions taken by the
Federal agency or applicant, including any actions taken prior to the
initiation of consultation'' under section 7(a)(2) or 7(a)(3) of the
Act, as provided in 50 CFR 402.14(g)(8).
Section 2. Treatment of Voluntary Prelisting Conservation Actions.
If requested to do so by the person or Federal, State, Tribe, or local
government agency that undertakes a qualifying voluntary prelisting
conservation action, or by a third party to whom the credits have been
transferred, the Service will treat the action as (1) a measure to
minimize and mitigate the impact of the taking of an endangered or
threatened species pursuant to section 10(a)(1)(B) of the Act, or (2)
an intended compensatory measure of a proposed Federal agency action
subject to the consultation requirements of section 7(a)(2) or 7(a)(3)
of the Act. Specifically, in the course of section 7 consultations, the
Service will consider the beneficial effects of voluntary prelisting
conservation actions to be included as part of the environmental
baseline for the action under consideration if requested by the action
agency or, in the case of an agency action involving a permit
application, by such applicant. The Service's determination of the
effects of the action being considered under these two sections of the
Act will reflect the conservation value of the voluntary prelisting
action based on priority actions identified in a conservation strategy
for the species. The credits earned by undertaking a prelisting
conservation action may be transferred to a third party but must be
used for the same species and within the same State where the credit
was earned.
Section 3. Definition of Voluntary Prelisting Conservation Actions.
As used in this policy, the term ``voluntary prelisting conservation
action'' refers to any conservation measure undertaken to benefit a
nonlisted species of plant or wildlife as described below, including
but not limited to, the acquisition or transfer of ownership of land or
water or interests therein for conservation purposes; the restraint or
relinquishment of the lawful use of a particular resource negatively
affecting such species; the establishment, restoration, enhancement, or
commitment to continue management of habitat for such species; and the
cooperation either in the introduction of such species into a portion
of its historical range where it is absent or in the augmentation of
such species in an area where it occurs. The benefit of the voluntary
prelisting conservation action for which credit is given must be
greater than the detriment of the action for which the credit is used,
that is the benefit from the prelisting action combined with the
detriment of a the postlisting action must result in positive
assistance to the recovery of the species. In addition, a voluntary
prelisting conservation action can be supplemented with an additional
postlisting conservation action so that the combined benefit of
prelisting and postlisting conservation actions is greater than the
detriment from the postlisting detrimental action.
A voluntary prelisting conservation action must be:
(1) Beneficial to a species that is, or may become, a candidate or
proposed for listing as threatened or endangered,
(2) Started prior to the final listing of the benefitted species as
an endangered or threatened species under the Act, and after the date
this policy is finalized. The actions may be part of an already
established conservation program, plan, or strategy or be included in
such a program, plan, or strategy that has been developed after the
date this policy is finalized.
[[Page 42529]]
(3) Not required by any Federal, State, or local law, regulation,
permit, or other regulatory mechanism.
(4) Undertaken as part of a State- or multi-State-administered
program, including the most recent version of a State Wildlife Action
Plan or other State conservation strategy that is intended to encourage
voluntary conservation measures for the species.
Section 6 funds may be used to measure, monitor, and oversee the
implementation of the pre-listing conservation actions as they relate
to candidate species.
Section 4. Role of the States. A State choosing to participate in
the voluntary prelisting conservation actions crediting system
established by the proposed policy must maintain a register of all
voluntary prelisting conservation actions undertaken pursuant to a
State or multi-State-administered program as described above and for
which the property owners have requested treatment under the proposed
policy, and must record any transfer to a third party of the mitigation
or compensatory measure rights associated with such actions. The State
will provide appropriate oversight to ensure the effective
implementation and maintenance of voluntary prelisting conservation
actions and provide a mechanism to notify the Service of each voluntary
prelisting conservation action. Such actions could be based on or found
in the most recent version of its State Wildlife Action Plans or other
State conservation strategy for the species and could be performed by a
third party, including a Federal agency. If a State- or multi-State-
administered program allows voluntary prelisting conservation actions
to serve as mitigation or a compensatory measure for the environmental
impacts of activities regulated by the State and undertaken prior to
the listing of a species as an endangered or threatened species, the
State will reflect the use of such voluntary prelisting conservation
actions for such purposes in its register, and, to the extent so used,
such voluntary prelisting conservation actions will no longer be
available for treatment as provided in this policy.
Section 5. Role of the Fish and Wildlife Service. The Service, when
requested, will assist the State, to the extent its resources allow,
with the measuring, monitoring, and oversight functions described in
section 4. The Service will coordinate between the State and other
Federal agencies to help develop conservation actions and oversee
implementation of actions taken by other Federal agencies to ensure
effectiveness and maintenance of those actions. The Service will review
any voluntary prelisting conservation program for consistency with this
policy and the other mitigation policies and guidelines established by
the Service.
Section 6. Evaluating the Impacts of Voluntary Prelisting
Conservation Actions. In treating any voluntary prelisting conservation
action as a measure to minimize and mitigate the impact of the taking
of any endangered or threatened species pursuant to Section 10(a)(1)(B)
of the Act, or as an intended part of any proposed Federal action
subject to the consultation requirements of section 7(a)(2) or 7(a)(3)
of the Act, the Service will evaluate the beneficial impacts of such
action according to the same criteria, standards, and metrics that it
uses to evaluate the beneficial impacts of other mitigating or
compensatory measures and the detrimental impacts of activities that
give rise to mitigating or compensatory measures. However, over time,
new scientific information may indicate that the metric may need
revision or a new metric should be used. The Service will work with the
landowner to advise them of the need for a change. In cases where
failure to utilize a new or revised metric would appreciably reduce the
likelihood of survival and recovery of the affected species in the
wild, the Service will require a new or improved metric as appropriate
and will alert the landowner. Species-specific metrics will be
developed to facilitate the evaluation of the prelisting conservation
actions and the detrimental actions. The benefit of a voluntary
prelisting conservation action for which credit is given must be
greater than the detriment from the action for which the credit is
used, that is, the benefit from the prelisting action, combined with
the detriment from a later action, must result in a positive assistance
to the recovery of the species. The positive assistance to the recovery
of the species will be achieved by setting aside a specific percentage
of the credits. The specific percentage will depend on the species and
the nature of the actions.
Section 7. Effect of Treating a Voluntary Prelisting Conservation
Action as a Mitigating or Compensatory Measure. To the extent that a
voluntary prelisting conservation action is treated by the Service as a
measure to minimize or mitigate any future impact of the taking of an
endangered or threatened species pursuant to section 10(a)(1)(B) of the
Act, or as an intended compensatory measure of a Federal agency action
subject to the consultation requirements of section 7(a)(2) or 7(a)(3)
of the Act, such action may not be used again.
Request for Information
We intend that a final policy will consider information and
recommendations from all interested parties. We, therefore, solicit
comments, information, and recommendations from governmental agencies,
Indian Tribes, the scientific community, industry groups, environmental
interest groups, and any other interested parties. All comments and
materials received by the date listed above in DATES will be considered
prior to the approval of a final document.
In addition to more general comments and information, we ask that
you comment on the following specific aspects of the policy:
(1) The policy requires an overall positive assistance to the
species; how should we define this benefit?
(2) The policy requires that a prelisting conservation action be
part of a State plan. What approach should we take if there is no State
plan for the species?
(3) For those species for which the State does not have the
authority or jurisdiction, should we revise the policy to allow
prelisting conservation actions for these species to receive credit? If
so, how would these prelisting conservation actions be tracked and
monitored?
(4) How should we quantify the value of the voluntary prelisting
conservation actions and credits?
(5) Based on the species and the nature of the actions, how should
we determine the percentage set aside?
(6) The policy allows for the transfer of credits. How could we
develop an uncomplicated trading system mechanism?
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 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.
Required Determinations
As mentioned above, we intend to apply this policy, when finalized,
in considering prelisting voluntary conservation efforts. Below we
discuss compliance with several Executive Orders and statutes as they
pertain to this draft policy.
[[Page 42530]]
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.
This draft policy sets forth the Service's policy regarding the
consideration of voluntary prelisting conservation actions through
Section 7 of the Act should a species be listed. 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
an incentive to Federal, State, or local government agencies, Indian
Tribes, nongovernmental organizations, or private individuals to take
voluntary conservation actions for species before they are listed under
the Act.
The Service, States, local government agencies, Indian Tribes,
nongovernmental organizations, or private landowners are the entities
that are affected by this draft policy. However, the effect is very
limited; if they so choose, each entity would only need to report, to
the State, limited information on any voluntary conservation action
they took and wished to receive credit under this policy. Therefore,
for the reasons described above, this draft policy would not have a
significant economic impact on a substantial number of small entities.
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. 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. As explained above, small governments could potentially be
affected because the draft policy could place additional requirements
on any city, county, or other local municipalities. However, the
requirement, which is to collect minimal information on any prelisting
conservation actions they voluntarily choose to implement and report to
their State wildlife agency, would only result in a minimal effect.
(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 could
impose only minimal obligations on local or tribal governments and as
well as on State governments if they choose to participate. 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 (establish a policy through
which the Service would consider voluntary prelisting conservation
actions through Section 7 of the Act should a species become listed)
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
assessment is not required. This draft policy pertains only to the
Service's treatment of voluntary prelisting conservation actions should
the species become listed under the Act, 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. A State that
chooses to participate under the policy must monitor prelisting
conservation actions. Since States have an existing mechanism to
conduct the monitoring for other purposes, the proposed policy does not
create a new requirement.
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. The
establishment of a policy for the Service to consider voluntary
prelisting conservation actions in the context of Section 7 of the Act
should the species be listed should not significantly affect or burden
the judicial system.
Paperwork Reduction Act of 1995
This proposed policy contains a collection of information that we
have submitted to OMB for review and approval under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We 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.
OMB Control No.: 1018-NEW.
[[Page 42531]]
Title: Voluntary Prelisting Conservation Actions.
Service Form Number(s): None.
Description of Respondents: Individuals; businesses and
organizations; and State, tribal and local governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Ongoing for recordkeeping and annually for
reporting.
----------------------------------------------------------------------------------------------------------------
Number of Number of Completion time per Total annual
Activity respondents responses response burden hours
----------------------------------------------------------------------------------------------------------------
Report Information to States:
Individuals....................... 20 20 15 minutes.............. 5
Private Sector.................... 280 280 15 minutes.............. 70
Government........................ 100 100 15 minutes.............. 25
States Collect and Report Information 10 10 20 hours................ 200
to the Service.
-------------------------------------------------------------------------
Totals........................ 410 410 ........................ 300
----------------------------------------------------------------------------------------------------------------
We will collect the following information:
Description of the prelisting conservation action being
taken.
Location of the action (does not include a specific
address).
Name of the entity taking the action and their contact
information (email address only).
Frequency of the action (ongoing for X years, or one-time
implementation) and an indication if the action is included in a State
Wildlife Action Plan.
Any transfer to a third party of the mitigation or
compensatory measure rights.
We estimate that 10 States will choose to participate. Each State
will collect information from landowners, businesses and organizations,
and tribal and local governments that wish to receive credit for
voluntary prelisting conservation actions. States may collect this
information via an Access database, Excel spreadsheet, or other
database of their choosing and submit the information to the Fish and
Wildlife Service (via email) annually. We will use this information to
calculate the amount of credits that the entity taking the conservation
action will receive. We will keep track of the credits and notify the
entity of how much credit they have earned. The entity can then use
these credits to mitigate or offset the detrimental effects of other
actions they take after the species is listed (assuming it is listed).
As part of our continuing efforts to reduce paperwork and
respondent burdens, we invite the public and other Federal agencies to
comment on any aspect of the reporting burden associated with this
proposed information collection. We specifically invite comments
concerning:
Whether or not the collection of information is necessary
for the proper implementation of the proposed Prelisting Conservation
Actions policy, including whether or not the information will have
practical utility;
The accuracy of our estimate of the burden for this
collection of information;
Ways to enhance the quality, utility, and clarity of the
information to be collected; and
Ways to minimize the burden of the collection of
information on respondents.
If you wish to comment on the information collection requirements
of this proposed policy, send your comments directly to OMB (see
detailed instructions under the heading Comments on the Information
Collection Aspects of this Proposal in the ADDRESSES section). Please
identify your comments with 1018-AY29. Please provide a copy of your
comments to the Service Information Collection Clearance Officer (see
detailed instructions under the heading Comments on the Information
Collection Aspects of this Proposal in the ADDRESSES section).
National Environmental Policy Act (NEPA)
We have analyzed the proposed 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).
We have determined that the proposed 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 proposed policy does not constitute a major Federal action
significantly affecting the quality of the human environment.
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 is to provide a consistent
approach to the consideration of voluntary prelisting conservation
actions, including those taken on Tribal lands. 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;
[[Page 42532]]
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 draft policy are staff members of the
Ecological Services Program, Branch of Communications and Candidate
Conservation, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Arlington, VA 22203.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 8, 2014.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-17022 Filed 7-21-14; 8:45 am]
BILLING CODE 4310-55-P