15352 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or the street 

address listed above. Follow the online 

instructions for accessing the dockets. 

FOR FURTHER INFORMATION CONTACT: 

For technical issues: Ms. Gayle 

Dalrymple, Office of Crash Avoidance 

Standards, National Highway Traffic 

Safety Administration, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

Telephone: (202) 366–5559. 

For legal issues: Mr. Edward Glancy, 

Office of the Chief Counsel, National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue SE., 

Washington, DC 20590. Telephone: 

(202) 366–2992. 

SUPPLEMENTARY INFORMATION: 

On December 12, 2011, NHTSA 

published in the Federal Register (76 

FR 77183) a notice of proposed 

rulemaking (NPRM) to amend Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 114, Theft Protection and Rollaway 

Prevention. In the NPRM, the agency 

addressed safety issues arising from 

increasing variations of keyless ignition 

controls, and the operation of those 

controls. We provided a 90-day 

comment period for the NPRM. 

On February 29, 2012, the Alliance of 

Automobile Manufacturers (Alliance) 

sent a letter to NHTSA requesting that 

certain information, including vehicle 

owner questionnaires (VOQs) referenced 

in the NPRM, be placed in the docket. 

NHTSA sent a memorandum to the 

docket containing VOQ and crash 

information and also sent a copy to the 

Alliance. The memorandum was posted 

in the docket on March 6, 2012. 

In a petition dated March 6, 2012, the 

Alliance requested a 30-day extension of 

the comment period. The petitioner 

argued that it and other interested 

parties seeking to comment need 

additional time to locate the VOQs, 

analyze the VOQs, and evaluate the 

other, newly docketed information. The 

Alliance stated that while the requested 

extension of the comment period may 

result in a slight delay in the rulemaking 

process, it contends that allowing 

commenters to generate comprehensive 

and responsive comments will 

significantly assist the agency in its 

decision making process. 

After considering the petition from 

the Alliance, we have decided to extend 

the comment period by 10 days. We 

wish to facilitate the efforts of the 

petitioner and other interested persons 

to provide complete comments. We 

note, however, that since the agency 

initially provided a relatively long 

comment period, i.e., 90 days, interested 

persons have already had considerable 

time to evaluate the proposal. The 

VOQs, along with media reports, were 

cited as examples of the safety 

problems. We believe that a 10-day 

extension will ensure that interested 

persons have sufficient time to analyze 

the VOQ and crash information. Since 

the information was posted in the 

docket on March 6, all interested 

persons will, with the extension 

considered, have had more than two 

weeks to review the information. The 

Alliance did not provide any detailed 

information showing why a longer 

extension, such as the 30 days it 

requested, would be necessary. 

Authority: 49 U.S.C. 322, 30111, 30115, 

30166 and 30177; delegation of authority at 

49 CFR 1.50. 

Issued: March 9, 2012. 

Christopher J. Bonanti, 

Associate Administrator for Rulemaking. 

[FR Doc. 2012–6269 Filed 3–12–12; 4:15 pm] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 13, 17, and 402 

[Docket No. FWS–R9–ES–2011–0099: 

FXES11150900000A2123] 

RIN 1018–AY29 

Endangered and Threatened Wildlife 

and Plants; Expanding Incentives for 

Voluntary Conservation Actions Under 

the Endangered Species Act 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

considering proposals to amend the 

regulations that implement parts of the 

Endangered Species Act. By this notice, 

we are inviting public comment to help 

us identify potential changes to our 

regulations that would create incentives 

for landowners and others to take 

voluntary conservation actions to 

benefit species that may be likely to 

become threatened or endangered 

species. In particular, we seek comment 

on whether and how the Service can 

assure those who take such voluntary 

actions that the benefits of such 

voluntary conservation actions will be 

recognized as offsetting the adverse 

effects of activities carried out after 

listing by that landowner or others. This 

practice sometimes referred to as 

‘‘advance mitigation’’ or ‘‘pre-listing 

mitigation,’’ is intended to encourage 

early conservation efforts that could 

reduce or eliminate the need to list 

species as endangered or threatened. 

DATES: We will consider comments 

received or postmarked on or before 

May 14, 2012. 

ADDRESSES: You may submit comments 

by one of the following methods: 

Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Enter 

Keyword or ID box, enter FWS–R9–ES– 

2011–0099, which is the docket number 

for this notice. You may submit a 

comment by clicking on ‘‘Submit a 

Comment.’’ 

By hard copy: Submit by U.S. mail or 

hand-delivery to: Public Comments 

Processing, Attn: FWS–R9–ES–2011– 

0099; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments below for 

more details). 

FOR FURTHER INFORMATION CONTACT: Jim 

Serfis, Chief, Office of Communications 

and Candidate Conservation, U.S. Fish 

and Wildlife Service, 4401 N. Fairfax 

Drive, Room 420, Arlington, VA 22203 

(telephone 703–358–2171). If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We are considering whether and how 

we could revise our regulations to create 

incentives for landowners and others to 

take voluntary conservation actions to 

benefit species that may be likely to 

become threatened or endangered 

species, including revisions that could 

recognize the benefits of such 

conservation actions as offsetting the 

adverse effects of actions carried out 

after listing by that landowner or others. 

We request comments, information, and 

suggestions from the public, other 

concerned governmental agencies, the 


tkelley on DSK3SPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 15353 

scientific community, industry, private 

landowners, or any other interested 

parties to help us formulate any 

proposed regulation. 

You may submit your comments and 

materials concerning this notice by one 

of the methods listed in ADDRESSES. We 

will not accept comments sent by email 

or fax or to an address not listed in 

ADDRESSES. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including your personal 

identifying information—will be posted 

on the Web site. If you submit a hard 

copy comment that includes personal 

identifying information, you may 

request at the top of your document that 

we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this notice, will be 

available for public inspection on 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service (see FOR FURTHER INFORMATION

CONTACT). 

Background 

On January 18, 2011, President 

Obama issued Executive Order 13563, 

which called for improvements in the 

nation’s regulatory system to promote 

predictability and reduce uncertainty 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. Pursuant to 

the Executive Order, the Department of 

the Interior published notices on 

February 25, 2011, and July 11, 2011, 

asking the public for suggestions as it 

prepared a plan for retrospective 

regulatory review. Representatives from 

State government, non-governmental 

groups and industries ranging from 

residential construction to wind energy, 

and to electric utilities recommended 

that the Department of the Interior 

update ESA regulations. Subsequently, 

the Department of the Interior published 

its final Plan for Retrospective 

Regulatory Review. That Plan identified 

a number of areas where changes in the 

ESA regulations could improve 

conservation effectiveness, reduce 

administrative burdens, create clarity 

and consistency for affected interests, 

and encourage partnerships, innovation, 

and cooperation. To achieve these goals, 

the Plan identified a need to clarify, 

expedite, and improve procedures for 

the development and approval of 

conservation agreements with 

landowners. 

Currently, landowner agreements that 

provide regulatory assurances under the 

ESA take three principal forms: Habitat 

Conservation Plans (HCPs), Safe Harbor 

Agreements (SHAs), and Candidate 

Conservation Agreements with 

Assurances (CCAAs). Habitat 

Conservation Plans, which are required 

in order to secure a permit to take listed 

wildlife species incidental to otherwise 

lawful activities, set forth measures to 

be taken to mitigate the impacts of such 

authorized taking. Although HCPs must 

always cover one or more listed wildlife 

species, they may also cover unlisted 

species. Safe Harbor Agreements are 

voluntary agreements under which a 

property owner agrees to carry out 

conservation measures to benefit listed 

species without incurring any new or 

additional regulatory liability as a result 

of their voluntary action. Candidate 

Conservation Agreements with 

Assurances are voluntary agreements 

under which a property owner agrees to 

implement conservation measures for 

candidate or other unlisted species. In 

exchange, the Service issues an 

enhancement of survival permit that 

becomes active when the species 

covered by the CCAA is listed and 

allows a prescribed level of incidental 

take by the landowner for the duration 

of the agreement. While CCAAs enable 

a landowner to secure assurances as to 

what their post-listing responsibilities 

will be in advance of listing, these 

agreements do not explicitly address 

whether and how pre-listing 

conservation measures might serve as 

mitigation for post-listing activities that 

could negatively affect species, such as 

land clearing, construction activities, or 

water diversion. 

Related to these efforts, at present, 

Service policy pertaining to 

conservation banking allows 

landowners or others to earn credits that 

can be used to offset the negative 

impacts of proposed actions on listed 

species. Under that policy, a credit 

represents a standardized way of 

quantifying the impact of beneficial 

actions on the well being of a particular 

listed species. Credits can be used to 

offset the negative effects of detrimental 

actions, with the magnitude of those 

negative effects quantified in the same 

manner. We seek any ideas to improve 

these forms of landowner agreements. 

It is possible that voluntary 

conservation actions for unlisted species 

might lead to a determination that a 

particular species does not need to be 

listed. If the need to list a species under 

the ESA can be avoided, everyone 

benefits. The species benefit from early 

action to address threats to their 

survival. Landowners and other 

regulated interests avoid the imposition 

of potentially costly restrictions on their 

activities. The Service avoids the need 

to dedicate scarce conservation dollars 

to additional species. The States 

maintain their primary management 

authority over non-listed species, 

ensuring that local authorities respond 

to local problems with input from their 

residents. 

Although everyone benefits from 

avoiding the need to list a species, there 

are often inadequate incentives for 

many people to undertake conservation 

action for species prior to listing. 

Voluntary conservation actions 

undertaken by one or a few persons are 

unlikely to be sufficient to affect the 

need to list the species. Thus, those who 

do undertake such actions in the hope 

that doing so will avert the need to list 

the species are often disappointed or 

frustrated by the fact that listing 

nevertheless occurs. Moreover, such 

voluntary actions prior to listing may 

actually result in those persons being 

subject to greater restrictions after 

listing than they would have been had 

they done nothing at all (because, for 

example, their voluntary actions make 

the species more numerous or more 

widespread on their property than it 

otherwise would have been). 

Avoiding the potential for voluntary 

conservation actions to result in such 

unintended restrictions is a key purpose 

of a CCAA. Through a CCAA, the 

Service provides the assurance that if 

the conditions of the agreement are met, 

the landowner will not be asked to do 

more, commit more resources, or be 

subject to further land use restrictions 

than agreed upon if the species is listed. 

However, the development of such 

Agreements has often been timeconsuming and difficult. Accordingly, 

the Service seeks suggestions to reduce 

the time and difficulty associated with 

CCAAs so as to further the goals of 

greater efficiency and flexibility in ESA 

regulatory programs. 

We also give advance notice of our 

intent to propose a rule to encourage 

landowners and other potentially 

regulated interests to fund or carry out 

voluntary conservation actions 

beneficial to candidate and other at-risk 

species by providing a new type of 

assurance that, in the event the species 

is listed, the benefits of appropriate 

voluntary conservation actions will be 

recognized as offsetting the adverse 

effects of activities carried out by that 

landowner or others after listing. 

Once a species is listed as endangered 

or threatened, actions that adversely 

affect it may need permits under section 

10 of the ESA or approval under the 

interagency consultation provisions of 


tkelley on DSK3SPTVN1PROD with PROPOSALS-1
15354 Federal Register / Vol. 77, No. 51 / Thursday, March 15, 2012 / Proposed Rules 

section 7 of the ESA. For actions 

reviewed under the interagency 

consultation provisions of section 7, 

measures that offset the adverse effects 

of those actions may be incorporated 

into and made a part of the proposed 

action as a way of reducing its net 

effects and meeting the approval 

standards of section 7. 

Although existing regulations at 50 

CFR 402.14(g)(8) require the Service to 

consider certain beneficial actions taken 

‘‘prior to the initiation of consultation,’’ 

there is no clear mechanism for 

acknowledging the benefits to a species 

of actions voluntarily taken by a 

landowner or other person prior to its 

listing, or for recognizing those benefits 

as mitigation or other requirements 

needed to secure approval for an action 

carried out after listing. 

An exception to the foregoing is any 

HCP that covers both listed and unlisted 

species, as many large-scale HCPs do. 

These plans, and the permits issued in 

association with them, acknowledge or 

verify the conservation commitments 

contained in the plans as fulfilling the 

requirements of the ESA with respect to 

all covered species even when required 

conservation actions are carried out 

before some covered species are actually 

listed, and the development activities 

for which they serve as mitigation may 

be carried out after the species is listed. 

Implicitly, at least, these plans are 

accepted as mitigation for actions 

undertaken after some covered species 

are listed. Thus, there is precedent for 

the conceptual idea examined here, but 

no clear mechanism for accomplishing 

mitigation prior to listing outside the 

context of multispecies HCPs. 

We request suggestions and input 

from the public on how best to establish 

clear mechanisms to encourage 

landowners and other potentially 

regulated interests to fund or carry out 

voluntary conservation actions 

beneficial to candidate and other at-risk 

species by providing assurances that, in 

the event the species is listed, the 

benefits of appropriate voluntary 

conservation actions will be recognized 

as offsetting the adverse effects of 

activities carried out after listing by that 

landowner or others. In addition to the 

requests above, we specifically request 

input from the public on the following 

questions: 

(1) How can the Service allow for the 

recognition of conservation credits for 

voluntary action taken in advance of listing 

in a manner that is efficient, readily 

understood, and faster? How can this be 

accomplished in an expeditious manner? 

(2) Should credits recognized for voluntary 

conservation actions taken prior to listing be 

available for use solely by the person who 

created them or should they be transferable 

to third parties? 

(3) If voluntary conservation actions 

undertaken prior to listing generate 

conservation credits that can be used to offset 

impacts of post-listing activities, should they 

be based solely on the beneficial actions of 

the person undertaking them, or should they 

be based on the net impacts of both beneficial 

and detrimental actions? 

(5) What role should the States play in 

recognizing and overseeing the development 

of credits from voluntary conservation 

actions taken for species not yet listed? 

(6) How can or should the Service specify 

in advance of listing the manner in which it 

will quantify the value of voluntarily 

undertaken conservation actions? 

(7) How the Service’s conservation banking 

policy could be revised to allow for the use 

of conservation credits accrued from 

voluntary actions taken prior to listing? 

(8) What changes, if any, are needed to the 

following regulations, policies and guidance 

(The handbooks and policy are available at 

http://www.fws.gov/endangered/esa-library/ 

index.html.) to clarify mechanisms by which 

the Service can give ‘‘credit’’ for beneficial 

actions for unlisted species: 

a. 50 CFR part 13 

b. 50 CFR part 17 

c. 50 CFR part 402 

d. The Service’s section 7 Handbook 

e. The Service’s HCP Handbook 

f. The Service’s Conservation Banking 

Policy 

(9) How could the Service use pilot 

projects to demonstrate that the ESA can 

provide landowners with credits and 

regulatory assurances for actions intended to 

benefit candidate species? Are there existing 

situations where such pilot projects could 

facilitate conservation for candidate species? 

(10) How can a landowner use such 

voluntary ‘‘prelisting mitigation’’ activities to 

satisfy requirements arising from any future 

section 7 consultation (such as ‘‘conservation 

measures,’’ ‘‘reasonable and prudent 

measure’’ or ‘‘reasonable and prudent 

alternatives’’)? 

In considering these and other 

potential changes to the ESA’s 

implementing regulations, we intend to 

be guided by the following objectives: 

• To improve the effectiveness of the 

ESA at conserving endangered, 

threatened, and candidate species; 

• To eliminate unnecessary process 

requirements and to make as efficient as 

possible the remaining process 

requirements; 

• To improve the clarity of, and 

eliminate the inconsistencies among, 

our regulations; 

• To engage the States, conservation 

organizations, and private landowners 

more effectively as conservation 

partners; 

• To encourage greater 

experimentation and creativity in the 

implementation of the Act; and 

• To reduce the frequency and 

intensity of conflicts as much as 

possible. 

Accordingly, we invite 

recommendations for changes to our 

regulations or policy that would further 

these objectives. 

Authority 

This notice is published under the 

authority of the Endangered Species Act 

of 1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: March 6, 2012. 

Daniel M. Ashe, 

Director, Fish and Wildlife Service. 

[FR Doc. 2012–6221 Filed 3–14–12; 8:45 am] 

BILLING CODE 4310–55–P 


tkelley on DSK3SPTVN1PROD with PROPOSALS-1