37102 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules

procedure will provide small businesses

with a meaningful opportunity to

compete in an open auction.

73. Alter the Transfer Requirements

for Certain Licenses: The Commission

proposes to modify the Commission’s

transfer requirements to correspond to

the Commission’s proposed changes in

the eligibility requirements, and to

encourage rapid construction of C and F

block systems. Specifically, the

Commission tentatively concludes that

C and F block licenses won pursuant to

open bidding at Auction No. 35, or any

future open auction for such spectrum,

would not be subject to a transfer

holding rule. For licenses won in closed

bidding in any C or F block auction, the

Commission seeks comment on a

proposal that will allow a licensee to

assign or transfer its license to any

qualified entity, entrepreneur or not,

upon the licensee’s completion of its

first construction benchmark, whether

or not it takes the full five years allowed

by the rules. The Commission also seeks

comment on whether it should evaluate

a licensee’s compliance with

construction requirements on a systemwide basis.

74. Eliminate the License Cap: The

Commission proposes to remove

§ 24.710 from the Commission’s rules

which prohibits an auction applicant

from winning more than 98 C and F

block licenses. When this rule was

established, the license cap was

intended to facilitate a fair distribution

of licenses within the C and F blocks.

The Commission has achieved this

objective; moreover, the Commission’s

proposal to reconfigure the available 30

MHz C block licenses would create

additional C block licenses, while the

Commission’s proposal to eliminate the

eligibility restrictions would increase

the chances of C and F block licenses

being won by a variety of entities.

75. Retain the Spectrum Cap: The

Commission tentatively concludes that

it should not grant the petitions seeking

waiver of, or forbearance from, the

CMRS spectrum cap rules and,

accordingly, it would apply the

spectrum cap to licenses of PCS C and

F block spectrum to be auctioned in

Auction 35. The Commission’s proposal

to revise the rules pertaining to the PCS

C and F block spectrum helps ease the

impact of the cap in this auction, and

thereby renders cap relief unnecessary.

76. Section 309(j) of the

Communications Act directs the

Commission to disseminate licenses

among a wide variety of applicants,

including small businesses and other

designated entities. Section 309(j) also

requires that the Commission ensure the

development and rapid deployment of

new technologies, products, and

services for the benefit of the public,

and recover for the public a portion of

the value of the public spectrum

resource made available for commercial

use. The Commission believes that the

proposals, alternatives, and tentative

conclusions described in this Notice

promote these goals while maintaining

the fair and efficient execution of the

auctions program. The Commission,

therefore, seeks comment on all issues,

proposals, tentative conclusions, and

alternatives described in the Notice, and

the impact they may have on small

entities.

F. Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

77. None.

List of Subjects in 47 CFR Part 24

Communications common carriers,

Personal communications services,

Radio.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

[FR Doc. 00–14881 Filed 6–12–00; 8:45 am]

BILLING CODE 6712–01–P

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.

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

FW9_FWE_DTEFR@fws.gov. 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 EastWest 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

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules 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

37104 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules

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.

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules 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, habitatspecific, location-specific, and actionspecific 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

37106 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules

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

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules 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 personhours 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

37108 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Proposed Rules

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-toGovernment 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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants; 90-day Finding for

Petitions To List Horkelia hendersonii

(Henderson’s horkelia) and Lupinus

aridus ssp. ashlandensis (Ashland

lupine) as Threatened or Endangered

and Commencement of Status Review

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of 90-day petition

finding and initiation of status review.

SUMMARY: We, the Fish and Wildlife

Service (Service), announce a 90-day

finding on two petitions to list Horkelia

hendersonii (Henderson’s horkelia) and

Lupinus aridus ssp. ashlandensis

(Ashland lupine) as endangered or

threatened species throughout their

ranges under the Endangered Species

Act of 1973, as amended (Act). We find

that the petitions presented substantial

information indicating that listing of

both species may be warranted. We are

initiating a status review to determine if

listing of either or both species is

warranted.

DATES: The finding announced in this

document was made May 31, 2000. To

be considered in the 12-month finding

for this petition, information and

comments should be submitted to us by

September 11, 2000.

ADDRESSES: Data, information,

comments, or questions concerning this

petition should be submitted to the

State Supervisor, Oregon State Office,

U.S. Fish and Wildlife Service, 2600 SE.

98th Avenue, Suite 100, Portland,

Oregon 97266. The petition finding,

supporting data, and comments will be

available for public inspection, by

appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT: Dr.

Andrew F. Robinson, Jr. (see ADDRESSES

section) (telephone 503/231–6179).

SUPPLEMENTARY INFORMATION:

Background

Section 4(b)(3)(A) of the Act (16

U.S.C. 1531 et seq.) requires that we

make a finding on whether a petition to

list, delist, or reclassify a species, or to

revise a critical habitat designation,

presents substantial scientific or

commercial information to demonstrate

that the petitioned action may be

warranted. To the maximum extent

practicable, this finding is to be made

within 90 days of the receipt of the

petition, and we are to publish the

finding promptly in the Federal

Register. If the finding is that

substantial information was presented,

we are also required to promptly

commence a review of the status of the

involved species and to disclose its

findings within 12 months (12-month

finding).

We received two separate formal

petitions from the Rogue Group Sierra

Club of Ashland, Oregon, both dated

September 9, 1999, to list Horkelia

hendersonii (Henderson’s horkelia) and

Lupinus ariduse ssp. ashlandensis

(Ashland lupine) as endangered or

threatened throughout their ranges, and

to designate critical habitat.

Accompanying the petitions was

supporting information relating to

taxonomy, ecology, threats, and past

and present distribution of H.

hendersonii and L. aridus ssp.

ashlandensis.

The processing of the petitions

conforms with our Listing Priority

Guidance published in the Federal