[Federal Register Volume 65, Number 114 (Tuesday, June 13, 2000)]
[Proposed Rules]
[Pages 37102-37108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14731]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Chapter IV
[Docket: 000214043-0043-01]
RIN 1018-AF55, 0648-AL91
Announcement of Draft Policy for Evaluation of Conservation
Efforts When Making Listing Decisions
AGENCIES: Fish and Wildlife Service, Interior; National Marine
Fisheries Service, NOAA, Commerce.
ACTION: Announcement of draft policy.
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SUMMARY: We, the Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) (Services), announce a draft policy for
the evaluation of conservation efforts when making listing decisions
under the Endangered Species Act of 1973, as amended (Act). While the
Act requires us to consider all conservation efforts being made to
protect a species, the policy identifies criteria we will use in
determining whether formalized conservation efforts contribute to
making listing a species as threatened or endangered unnecessary. The
policy applies to conservation efforts identified in conservation
agreements, conservation plans, management plans, or similar documents
developed by Federal agencies, State and local governments, Tribal
governments, businesses, organizations, and individuals.
DATES: Send your comments on the draft policy to us (see ADDRESSES
section) by August 14, 2000.
ADDRESSES: Send your comments on the draft policy to the Chief,
Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C
Street, N.W., (MS-420 ARLSQ), Washington, DC 20240, or to
[email protected]. You may examine the comments we receive by
appointment during normal business hours in Room 420, Arlington Square
Building, 4401 North Fairfax Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service at the above
address, telephone 703/358-2171 or facsimile 703/358-1735, or Wanda
Cain, Chief, Endangered Species Division, National Marine Fisheries
Service, 1315 East-West Highway, 13th Floor, Silver Spring, Maryland
20910, telephone 301/713-1401 or facsimile 301/713-0376.
SUPPLEMENTARY INFORMATION:
Draft Policy
Policy Purpose
We have proposed this policy in order to ensure consistent and
adequate evaluation of formalized conservation efforts (conservation
efforts identified in conservation agreements, conservation plans,
management plans, and similar documents) when making listing decisions
under the Act. We have also proposed this policy to facilitate the
development of conservation efforts that sufficiently improve a
species' status so as to make listing the species as threatened or
endangered unnecessary.
Policy Scope
This policy applies to our evaluation of all formalized
conservation efforts when making listing decisions for species not
listed, including findings on petitions to list species and decisions
on whether to assign candidate status, to remove candidate status, to
issue proposed listing rules, and to finalize or withdraw proposed
listing rules. This policy applies to formal conservation efforts
developed with or without a specific intent to influence a listing
[[Page 37103]]
decision and with or without the involvement of the Services. This
policy identifies criteria we will use to evaluate the certainty of
implementation and effectiveness of formalized conservation efforts
that have not yet been implemented or have been recently implemented
and have not yet demonstrated effectiveness at the time of a listing
decision. The criteria will be used to determine whether a formalized
conservation effort contributes to making listing a species unnecessary
or contributes to forming a basis for listing a species as threatened
rather than endangered.
In many cases, conservation efforts affecting a particular species
will have been implemented and will have shown results well before the
time of a listing decision. In those cases, development of an agreement
or plan, and an evaluation of its certainty of implementation and
effectiveness, would not be necessary, because the results of the
implemented conservation efforts will be considered when we make a
listing decision.
The policy does not provide guidance for determining the level of
conservation or the types of conservation efforts needed to make
listing unnecessary. Also, the policy does not provide guidance for
determining when parties should enter into agreements or when a
conservation effort should be included in an agreement or plan. The
policy provides guidance only for evaluating the certainty of
implementation and effectiveness of formalized conservation efforts.
Although the certainty of implementation and effectiveness of a
conservation effort may be considered in determining the
appropriateness of including the effort in an agreement or plan, no
particular level of certainty must be provided in order to include the
effort in an agreement or plan.
Definitions
``Adaptive management is the process of monitoring the results of
implemented conservation efforts, then adjusting those efforts
according to what was learned.
``Agreements and plans'' include conservation agreements,
conservation plans, management plans, or similar documents approved by
Federal agencies, State and local governments, Tribal governments,
businesses, organizations, or individuals.
``Candidate species,'' as defined by regulations at 50 CFR
424.02(b), means any species being considered for listing as an
endangered or a threatened species, but not yet the subject of a
proposed rule. However, the FWS includes as candidate species those
species for which the FWS has sufficient information on file relative
to status and threats to support issuance of proposed listing rules.
The NMFS includes as candidate species those species for which it has
information indicating that listing may be warranted but for which
sufficient information to support actual proposed listing rules may be
lacking. The term ``candidate species'' used in this policy refers to
those species designated as candidates by either of the Services.
``Conservation efforts,'' for the purpose of this policy, are
specific actions, activities, or programs designed to eliminate or
reduce threats or otherwise improve the status of a species.
Conservation efforts may involve restoration, enhancement, maintenance,
or protection of habitat; reduction of mortality or injury; or other
beneficial actions.
``Formalized conservation efforts'' are conservation efforts
identified in a conservation agreement, conservation plan, management
plan, or similar document.
Authority
Section 4(a)(1) of the Endangered Species Act of 1973, as amended
(16 U.S.C. 1533(a)(1)), states that we must determine whether a species
is threatened or endangered because of any of the following five
factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; and
(E) Other natural or manmade factors affecting its continued
existence.
Although this language focuses on impacts negatively affecting a
species, section 4(b)(1)(A) requires us also to ``tak[e] into account
those efforts, if any, being made by any State or foreign nation, or
any political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.'' Read together, sections 4(a)(1)
and 4(b)(1)(A) and our regulations at 50 CFR section 424.11(f) require
us to consider any State or local laws, regulations, ordinances,
programs, or other specific conservation measures that either
positively or negatively affect a species' status (i.e., efforts that
create, exacerbate, reduce, or remove threats identified through the
section 4(a)(1) analysis). The manner in which the section 4(a)(1)
factors are framed supports this conclusion. Factor (D) for example--
``the inadequacy of existing regulatory mechanisms''--indicates that we
might find existing regulatory mechanisms adequate to justify a
determination not to list a species.
In addition, we construe the analysis required under section
4(a)(1), in conjunction with the directive in section 4(b)(1)(A), to
authorize and require us to consider whether the actions of any other
entity, in addition to actions of State governments, create,
exacerbate, reduce, or remove threats to the species. Factor (E) in
particular --any ``manmade factors affecting [the species'] continued
existence''--requires us to consider the pertinent laws, regulations,
programs, and other specific actions of any entity that either
positively or negatively affect the species. Thus, the analysis
outlined in section 4 requires us to consider any conservation efforts
by State or local governments, Tribal governments, Federal agencies,
businesses, organizations, or individuals that positively affect the
species' status.
Conservation efforts are often informal, such as when a property
owner implements conservation measures for a species simply because of
concern for the species or interest in protecting its habitat, and
without any specific intent to affect a listing decision. Conservation
efforts are also often formalized in conservation agreements,
conservation plans, management plans, or similar documents. The
development and implementation of such agreements and plans have been
an effective mechanism for conserving declining species and have, in
some instances, made listing unnecessary. These efforts are consistent
with the Act's finding that ``encouraging the States and other
interested parties * * * to develop and maintain conservation programs.
* * * is a key * * * to better safeguarding, for the benefit of all
citizens, the Nation's heritage in fish, wildlife, and plants' (16
U.S.C. 1531 (a)(5)).
In some situations, the listing process may be under way, and
formalized conservation efforts have yet to be implemented. We may
determine that a formalized conservation effort that has not yet been
implemented reduces or removes a threat to a species when we have
sufficient certainty that it will be implemented and effective.
Deciding or determining whether a species meets the definition of
threatened or endangered requires us to make a prediction about the
future persistence of a species. Central to this concept is a
prediction of future
[[Page 37104]]
conditions, including consideration of future negative effects of
anticipated human actions. We cannot protect species without taking
into account future threats that have a high likelihood of affecting a
species. The Act does not require that, and species conservation would
be compromised if, we wait until a threat is actually harming
individuals before we list the species as threatened or endangered.
Similarly, the magnitude and/or severity of a threat may be reduced as
a result of future positive human actions. Common to the consideration
of both the effects of future negative human actions and the effects of
future positive human actions is a determination of the certainty that
the actions will occur and that their effects on the species will be
realized. We therefore consider both future negative and future
positive human impacts when assessing the status of the species.
For example, if a State recently instituted a program to eliminate
collection of a reptile being considered for listing, we must assess
the predicted consequences of this program on the status of the
species. For those parts of the program recently instituted, a record
to determine the effect on the species may not yet exist. Therefore, we
must base an assessment of the adequacy of the program on predicted
compliance and effects. Such an assessment would reasonably include an
evaluation of the State's ability to enforce new regulations, educate
the public, monitor compliance, and monitor the effects of the program
on the species. We would determine that the program reduces the threat
of overutilization of the species through collecting if we found
sufficient certainty that the program would be implemented and
effective.
The language of the Act supports this approach. The definitions for
both ``endangered species'' and ``threatened species'' connote future
status, which indicates that consideration of whether a species should
be listed depends in part on identification and evaluation of future
actions that will reduce or remove, as well as create or exacerbate,
threats to the species. In addition, the first factor in section
4(a)(1)--the present or threatened destruction, modification, or
curtailment of [the species'] habitat or range--explicitly requires us
to analyze both current actions affecting a species' habitat or range
and those actions that are sufficiently certain to occur in the future
and affect a species' habitat or range. However, future actions by
Federal agencies, States, Tribes, and private entities that create,
exacerbate, reduce, or remove threats are not limited to actions
affecting a species' habitat or range. Congress did not intend for us
to consider current and future actions affecting a species' habitat or
range, yet ignore future actions that will influence overutilization,
disease, predation, regulatory mechanisms, or other natural or manmade
factors. Therefore, we construe Congress' intent, as reflected by the
language of the Act, to require us to consider both current actions
that are affecting a species' status and sufficiently certain future
actions--either positive or negative--that will affect habitat, range,
overutilization, disease, predation, regulatory mechanisms, or other
natural or manmade factors.
The consideration of both positive and negative effects of human
actions in making a prediction about the future persistence of a
species also requires consideration of voluntary human actions. The
threats to species that lead to listing as threatened or endangered are
often the result of voluntary human actions. For example, decisions to
develop property, harvest timber, or otherwise use or manage land or
other natural resources in ways that pose a threat to a species are
typically voluntary, as opposed to mandatory, actions. We must factor
the effects of these voluntary detrimental actions into our assessment.
Similarly, decisions to forego development or other changes in land use
or management that would pose a threat to a species, as well as
decisions to initiate conservation efforts that will have a positive
effect on the species, are often voluntary, as opposed to mandatory,
actions. Voluntary beneficial actions, whether initiated independently
or through participation in a formalized conservation effort, must also
be factored into our assessment.
For example, a State could have a voluntary incentive program for
protection and restoration of riparian habitat that includes providing
technical and financial assistance for fencing to exclude livestock. To
assess the effectiveness of this voluntary program, we would evaluate
the level of participation (e.g., number of participating landowners or
number of stream-miles fenced), the length of the commitment by
landowners, and effects of the program on the species. We would
determine that the program reduces the threat of habitat loss and
degradation if we find sufficient certainty that the program is
effective.
Evaluation Criteria
Conservation agreements, conservation plans, management plans, and
similar documents generally identify numerous conservation efforts
(i.e., actions, activities, or programs) to benefit the species. In
determining whether a formalized conservation effort contributes to
making listing a species as threatened or endangered unnecessary or
contributes to forming a basis for listing as threatened rather than
endangered, we must evaluate whether the conservation effort affects
the status of the species. Two factors are key in that evaluation: (1)
For those efforts yet to be implemented, the certainty that the
conservation effort will be implemented and (2) the certainty that the
conservation effort will be effective. Because the certainty of
implementation and effectiveness of formalized conservation efforts may
vary, we will evaluate each effort individually. In order for us to
determine that a formalized conservation effort contributes to making
listing a species unnecessary or contributes to forming a basis for
listing a species as threatened rather than endangered, the
conservation effort must meet the following criteria.
A. The certainty that the conservation effort will be implemented:
1. The conservation effort; the party(ies) to the agreement or plan
that will implement the effort; and the staffing, funding level,
funding source, and other resources necessary to implement the effort
are identified.
2. The authority of the party(ies) to the agreement or plan to
implement the conservation effort and the legal procedural requirements
necessary to implement the effort are described.
3. Authorizations (e.g., permits, landowner permission) necessary
to implement the conservation effort are identified, and a high level
of certainty that the party(ies) to the agreement or plan that will
implement the effort will obtain these authorizations is provided.
4. The level of voluntary participation (e.g., by private
landowners) necessary to implement the conservation effort is
identified, and a high level of certainty that the party(ies) to the
agreement or plan that will implement the conservation effort will
obtain that level of voluntary participation is provided (e.g., an
explanation of why incentives to be provided are expected to result in
the necessary level of voluntary participation).
5. All regulatory mechanisms (e.g., laws, regulations, ordinances)
necessary to implement the conservation effort are in place.
6. A high level of certainty that the party(ies) to the agreement
or plan that will implement the conservation effort will obtain the
necessary funding is provided.
[[Page 37105]]
7. An implementation schedule (including completion dates) for the
conservation effort is provided.
8. The conservation agreement or plan that includes the
conservation effort is approved by all parties to the agreement or
plan.
B. The certainty that the conservation effort will be effective:
1. The nature and extent of threats being addressed by the
conservation effort are described.
2. Explicit objectives for the conservation effort and dates for
achieving them are stated.
3. The steps necessary to implement the conservation effort are
identified.
4. Quantifiable, scientifically valid parameters that will
demonstrate achievement of objectives, and standards for these
parameters by which progress will be measured, are identified.
5. Provisions for monitoring and reporting progress on
implementation (based on compliance with the implementation schedule)
and effectiveness (based on evaluation of quantifiable parameters) of
the conservation effort are provided.
6. Principles of adaptive management are incorporated.
These criteria should not be considered comprehensive evaluation
criteria. The certainty of implementation and effectiveness of a
formalized conservation effort may also depend on species-specific,
habitat-specific, location-specific, and action-specific factors. We
will consider all appropriate factors in evaluating formalized
conservation efforts. The specific circumstances will also determine
the amount of information necessary to satisfy these criteria.
In addition, we will consider the estimated length of time that it
will take for a formalized conservation effort to remove or reduce
threats to the species. In some cases, the nature, severity, and/or
imminence of threats to a species may be such that a conservation
effort cannot be expected to remove or reduce threats quickly enough to
make listing unnecessary.
An agreement or plan may contain numerous conservation efforts, not
all of which are sufficiently certain to be implemented and effective.
Those conservation efforts that are not sufficiently certain to be
implemented and effective cannot contribute to a determination that
listing is unnecessary or a determination to list as threatened rather
than endangered. To determine that a formalized conservation effort
contributes to making listing a species as threatened or endangered
unnecessary, or contributes to forming a basis for listing as
threatened rather than endangered, we must find that the conservation
effort is sufficiently certain to be implemented and effective so as to
contribute to the elimination or adequate reduction of one or more
threats to the species identified through the section 4(a)(1) analysis.
The elimination or adequate reduction of section 4(a)(1) threats may
lead to a determination that the species does not meet the definition
of threatened or endangered, or is threatened rather than endangered.
Additional Considerations
Federal agencies, State and local governments, Tribal governments,
businesses, organizations, or individuals contemplating development of
an agreement or plan should be aware that, because the Act mandates
specific timeframes for making listing decisions, we cannot delay the
listing process to allow additional time to complete the development of
an agreement or plan. Nevertheless, we encourage the development of
agreements and plans even if they will not be completed prior to a
final listing decision. Such an agreement or plan could serve as the
foundation for a special rule under section 4(d) of the Act, which
would establish only those prohibitions necessary for the conservation
of a threatened species, or for a recovery plan, and could lead to
earlier recovery and delisting.
In addition, we encourage the development of agreements or plans
even if they do not meet the criteria listed in this policy. We hope
that efforts contained in such plans would be implemented by the time
we must make a listing decision. If efforts have been, or will be,
implemented by the time we must make a listing decision, there is no
need to provide certainty of implementation. However, prior to making a
listing decision, we would evaluate the certainty of effectiveness of
any newly implemented efforts.
If we make a decision not to list a species or to list the species
as threatened rather than endangered based in part on the contributions
of a formalized conservation effort, we will monitor the status of the
species and the progress in implementation of the conservation effort.
If there is (1) A failure to implement the conservation effort in
accordance with the implementation schedule; (2) a failure to achieve
objectives; or (3) a failure to modify the conservation effort to
adequately address an increase in the severity of a threat, we will
reevaluate the status of the species and consider whether initiating
the listing process is necessary. Initiating the listing process may
consist of designating the species as a candidate species and assigning
a listing priority, issuing a proposed rule to list, issuing a proposed
rule to reclassify, or issuing an emergency listing rule.
Public Comments Solicited
We request comments on four aspects of this notice: (1) The content
of the draft policy; (2) other related issues; (3) the clarity of this
notice; and (4) the collection of information from the public expected
to be associated with preparation and submission of conservation
agreements and plans and with monitoring and reporting the
implementation progress and effectiveness of conservation efforts,
which requires Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act.
Comments on the Content of the Draft Policy
We solicit your comments on the content of this draft policy. We
are especially interested in your comments on the criteria that we will
use to evaluate the certainty that a formalized conservation effort
will be implemented. For example, must all regulatory mechanisms (e.g.,
laws, regulations, ordinances) necessary to implement a conservation
effort actually be in place in order for us to determine that the
effort contributes to making listing a species unnecessary or
contributes to forming a basis for listing a species as threatened
rather than endangered? Or is it sufficient that the conservation
effort include a high level of certainty that the regulatory mechanisms
will be adopted by a specified date? Similarly, should funding,
authorizations, and voluntary participation be in place at the time a
conservation effort is evaluated, or is it sufficient that the
conservation effort include a high level of certainty that they be in
place by a specified date? In addition, how might an entity demonstrate
a high level of certainty of implementation of a conservation effort?
In determining a final action on this draft policy, we will take into
consideration all comments we receive during the comment period.
Comments on Other Related Issues
Also, we are interested in your comments on the timing of the
development of conservation agreements or plans. We encourage early
development of conservation agreements or plans, prior to the need to
propose a species for listing, such as at or before the time a species
is placed
[[Page 37106]]
on the candidate list. However, agreements or plans often have been
initiated or accelerated when one of the Services has proposed to list
a species. Listing proposals generally provide a 60-day comment period.
At the latest, we should receive conservation agreements or plans
before the end of the comment period in order to be considered in a
final listing decision. Beginning development of a conservation
agreement or plan after the species is proposed for listing generally
does not allow much time for implementation of any new conservation
efforts identified as necessary in an agreement or plan. In that case,
we must rely on our analysis of the certainty of implementation and
effectiveness of those proposed efforts when making a listing decision.
We hope that, by identifying specific criteria for evaluation of
conservation efforts, this policy will encourage earlier development of
conservation efforts such that many of the identified conservation
efforts will be implemented by the time a final listing decision is
made. Are there other ways to encourage earlier development of
conservation efforts?
Clarity of the Policy
Executive Order 12866 requires agencies to write regulations that
are easy to understand. We invite your comments on how to make this
policy easier to understand, including answers to the following
questions: (1) Is the discussion in the ``Supplementary Information''
section of the preamble helpful in understanding the policy? (2) Does
the policy contain technical language or jargon that interferes with
its clarity? (3) Does the format of the policy (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) What else could we do to make the policy easier to
understand?
Send your comments concerning the content or clarity of this draft
policy to the FWS (see ADDRESSES section).
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3501
et seq.) requires Federal agencies to obtain OMB approval for certain
collections of information from the public. We may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Simultaneous to publication of this notice, we are requesting OMB
approval for information collection associated with this draft policy.
The OMB regulations implementing provisions of the Paperwork Reduction
Act require agencies to provide interested members of the public and
other affected agencies an opportunity to comment on agency information
collection and recordkeeping activities (see 5 CFR 1320.11). Our
request for approval from OMB for a collection of information from the
public must include an estimate of the information collection and
recordkeeping burden that would result from our draft policy if made
final.
The development of a conservation agreement, conservation plan,
management plan, or similar document by a State or other entity is
completely voluntary. While this policy applies to formal conservation
efforts developed with or without a specific intent to influence a
listing decision and with or without the involvement of the Services,
only those agreements or plans developed to influence a listing
decision, with the involvement of the Service, constitute a new
information collection requiring OMB approval under the Paperwork
Reduction Act. In addition, when a State or other entity develops such
an agreement or plan with the specific intent of making listing of a
species unnecessary, the criteria identified in our draft policy can be
construed as requirements placed on the development of the agreement or
plan. In other words, a State or other entity must satisfy these
criteria in order to obtain and retain the benefit they are seeking,
which is making listing of a species as threatened or endangered
unnecessary.
In addition, one of the criteria identified in our draft policy is
that a provision must be included that provides for monitoring and
reporting the progress and results of implementation of a conservation
effort. Conservation professionals have long considered monitoring and
reporting to be an essential component of scientifically sound
agreements and plans and routinely incorporate monitoring and reporting
into these agreements and plans. We included a monitoring and reporting
criterion in this policy to ensure consistency with sound biological
and conservation principles and for completeness. Although monitoring
and reporting provisions are already generally included in agreements
and plans, this criterion also constitutes a new information collection
requiring OMB approval under the Paperwork Reduction Act.
Estimating the amount of work associated with developing a
conservation agreement or plan with the intent of making listing
unnecessary and with monitoring and reporting the progress and results
of implementation of conservation efforts is difficult because: (1) The
development (and associated monitoring) of conservation efforts is
completely voluntary, and we cannot predict who will decide to develop
these efforts; (2) we cannot predict which species will become the
subjects of conservation efforts and, therefore, cannot predict the
nature and extent of conservation efforts and monitoring included in
agreements and plans; and (3) many plans, such as agency land
management plans, are developed to satisfy requirements of other laws
or for other purposes, and we cannot predict whether, or the extent to
which, some of these plans may be expanded to attempt to make listing
unnecessary. For these reasons, we must base our estimate of the amount
of work associated with developing conservation agreements or plans and
monitoring and reporting of conservation efforts on information from
conservation agreements developed in the past.
A. Fish and Wildlife Service
Since 1994, the FWS has entered into approximately 60 conservation
agreements. About 14 of these agreements contributed to making listing
the covered species as threatened or endangered unnecessary. Based on
this information, we have entered into an average of about 15
agreements per year, 3 or 4 of which have made listing unnecessary. We
expect that these averages will remain stable or increase. We will
estimate that annually six agreements will be developed with the intent
of making listing unnecessary, that four of these will be successful in
making listing unnecessary, and, therefore, in four cases, the States
or other entities who develop these agreements will carry through with
their monitoring commitments in order to keep the covered species from
being listed.
We estimate that each agreement developed with the intent of making
listing unnecessary will require an average of 320 person-hours to
complete. This estimate is a one-time burden for each plan developed.
The burden to six States or other entities who choose to develop an
agreement in a given year totals approximately 1,920 hours.
We estimate that, for each conservation effort, the State or other
entity will spend annually an average of 160 person-hours to conduct
the monitoring and 40 person-hours to prepare a report. Therefore, the
annual burden to four States or other entities to
[[Page 37107]]
complete monitoring and reporting totals approximately 800 hours.
B. National Marine Fisheries Service
Since 1997, NMFS has entered into three conservation agreements,
all of which we determined at the time contributed to making it
unnecessary to list the covered species as threatened or endangered. We
are assuming that at least one agreement will be developed annually
with the intent of making listing unnecessary, and that about half of
these will be successful in making listing unnecessary. We estimate
that each agreement developed with the intent of making listing
unnecessary will require an average of 320 person-hours to complete.
This is a one-time burden for each plan developed. Therefore, the
burden to one State or another entity that chooses to develop an
agreement in a given year totals about 320 hours.
For each conservation effort, the State or other entity will spend
an average of 160 hours to conduct the monitoring and 40 hours to
prepare a report. Therefore, the annual burden to a State or another
entity to complete monitoring and reporting totals about 200 hours.
Over the next 3 to 5 years, we anticipate that two States or entities
will have agreements in place that will require monitoring and
reporting. Therefore, the monitoring and reporting requirement will
total about 400 hours each year.
The Services will submit a request to OMB for approval of this
collection of information concurrent with the proposed rulemaking
action. We are also soliciting comments on this information collection
approval request. We invite comments on: (1) Whether the collection of
information is necessary for the proper performance of our functions,
including whether the information will have practical utility; (2) the
accuracy of our estimate of the information collection burden; (3) ways
to enhance the quality, utility, and clarity of the information we
would collect; and (4) ways to minimize the burden of the information
collection on respondents, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Send your comments on specific information collection requirements
to the Desk Officer for the Interior Department and Commerce
Department, Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503.
OMB has up to 60 days to approve or disapprove information
collection but may respond after 30 days. Therefore, to ensure
consideration, you should submit your comments concerning information
collection to OMB at the above address by July 13, 2000.
Economic Analysis
This draft policy will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. This draft policy will not
materially affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. This draft policy will
not raise novel legal or policy issues.
The Departments of the Interior and Commerce certify that this
draft policy will not have a significant economic effect on a
substantial number of small entities as defined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). The Services expect that this
draft policy will not result in any significant additional expenditures
by entities that develop formalized conservation efforts.
This policy identifies criteria that a conservation effort must
satisfy to ensure certainty of implementation and effectiveness and for
the Services to determine that the conservation effort contributes to
making listing a species unnecessary or contributes to forming a basis
for listing a species as threatened rather than endangered. The
Services developed this draft policy to ensure consistent and adequate
evaluation of agreements and plans when making listing decisions and to
help States and other entities develop agreements and plans that will
be adequate to make listing species unnecessary.
The criteria in this policy primarily describe elements that are
already included in conservation efforts and that constitute sound
conservation planning. For example, the criteria requiring
identification of responsible parties, obtaining required
authorizations, establishment of objectives, and inclusion of an
implementation schedule and monitoring provisions are essential for
directing the implementation and affirming the effectiveness of
conservation efforts. These kinds of ``planning'' requirements are
generally already included in conservation efforts and do not establish
any new implementation burdens. Rather, these requirements will help to
ensure that conservation efforts are well planned and, therefore,
increase the likelihood that conservation efforts will ultimately be
successful in making listing species unnecessary.
The development of an agreement or plan by a State or other entity
is completely voluntary. However, when a State or other entity
voluntarily decides to develop an agreement or plan with the specific
intent of making listing a species unnecessary, the criteria identified
in this policy can be construed as requirements placed on the
development of such agreements or plans; the State or other entity must
satisfy these criteria in order to obtain and retain the benefit they
are seeking, which is making listing of a species as threatened or
endangered unnecessary.
Other criteria require demonstrating certainty of implementation
and effectiveness of conservation efforts. We have always considered
the certainty of implementation and effectiveness of conservation
efforts when making listing decisions. Although we have not had
explicit evaluation criteria in the past, we believe the criteria in
this policy are consistent with the requirements of the Endangered
Species Act. Therefore, we believe that no economic effects on States
and other entities will result from compliance with the criteria in
this policy.
Furthermore, publication of this policy will have positive effects
by informing States and other entities of the criteria we will use in
evaluating formalized conservation efforts when making listing
decisions, and thereby helping States and other entities develop
voluntary formalized conservation efforts that will be successful in
making listing unnecessary. Therefore, we believe that informational
benefits will result from issuing this policy. We believe these
benefits, although important, will be insignificant economically.
Required Determinations
Unfunded Mandates Reform Act. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501, et seq.):
a. The Services certify pursuant to the Unfunded Mandates Reform
Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost
of $100 million or more in any given year on local or State governments
or private entities. The Services expect that this draft policy will
not result in any significant additional expenditures by entities that
develop formalized conservation efforts (see Discussion above).
b. This draft policy will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings. In accordance with Executive Order 12630, this draft
policy does not have significant takings implications. While State or
local
[[Page 37108]]
governments may choose to directly or indirectly implement actions that
may have property implications, they would do so as a result of their
own decisions, not as a result of this policy. This policy has no
provision that would take private property rights.
Federalism. In accordance with Executive Order 13132, this draft
policy does not have significant Federalism effects.
Civil Justice Reform. In accordance with Executive Order 12988,
this draft policy does not unduly burden the judicial system and meets
the requirements of sections 3(a) and 3(b)(2) of the Order. With the
guidance provided in the draft policy, requirements under section 4 of
the Endangered Species Act will be clarified to entities that
voluntarily develop formalized conservation efforts.
National Environmental Policy Act. We have analyzed this draft
policy in accordance with the criteria of the National Environmental
Policy Act (NEPA) and the Department of the Interior Manual (318 DM
2.2(g) and 6.3(D)). This draft policy does not constitute a major
Federal action significantly affecting the quality of the human
environment. The Service has determined that the issuance of the draft
policy is categorically excluded under the Department of the Interior's
NEPA procedures in 516 DM 2, Appendix 1 and 516 DM 6, Appendix 1. The
National Oceanic and Atmospheric Administration (NOAA) has determined
that the issuance of this policy qualifies for a categorical exclusion
as defined by NOAA 216-6 Administrative Order, Environmental Review
Procedure.
Section 7 Consultation. The Service has determined that issuance of
this draft policy will not affect species listed as threatened or
endangered under the Endangered Species Act, and, therefore, a section
7 consultation on this draft policy is not required.
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) and 512 DM 2, this draft policy does not directly affect Tribal
resources. The effect of this draft policy on Native American Tribes
would be determined on a case-by-case basis with individual evaluations
of formalized conservation efforts. Under Secretarial Order 3206, the
Service will, at a minimum, share with the entity that developed the
formalized conservation effort any information provided by the Tribes,
through the public comment period or formal submissions, and advocate
the incorporation of conservation efforts that will restore or enhance
Tribal trust resources. After consultation with the Tribes and the
entity that developed the formalized conservation effort and after
careful consideration of the Tribe's concerns, the Service must clearly
state the rationale for the recommended final decision and explain how
the decision relates to the Service's trust responsibility.
Accordingly:
a. We have not yet consulted with the affected Tribe(s). This
requirement will be addressed with individual evaluations of formalized
conservation efforts.
b. We have not yet treated Tribes on a government-to-government
basis. This requirement will be addressed with individual evaluations
of formalized conservation efforts.
c. We will consider Tribal views in individual evaluations of
formalized conservation efforts.
d. We have not yet consulted with the appropriate bureaus and
offices of the Department about the identified effects of this draft
policy on Tribes. This requirement will be addressed with individual
evaluations of formalized conservation efforts.
Dated: April 9, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
Dated: May 19, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 00-14731 Filed 6-12-00; 8:45 am]
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