[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 
<a href="/cdn-cgi/l/email-protection#6b2d3c52342d3c2e342f3f2e2d392b0d1c18450c041d"><span class="__cf_email__" data-cfemail="aaecfd93f5ecfdeff5eefeefecf8eaccddd984cdc5dc">[email protected]</span></a>. 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]
BILLING CODE 4310-55-P


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