[Federal Register Volume 68, Number 60 (Friday, March 28, 2003)]
[Rules and Regulations]
[Pages 15100-15115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7364]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Chapter IV

[Docket No. 000214043-2227-02; I.D. 011603A]
RIN 1018-AF55, 0648-XA48


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 final policy.

-----------------------------------------------------------------------

SUMMARY: We, the Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (the Services), announce a final policy 
for the evaluation of conservation efforts when making listing 
decisions (PECE) under the Endangered Species Act of 1973, as amended 
(Act). While the Act requires us to take into account all conservation 
efforts being made to protect a species, the policy identifies criteria 
we will use in determining whether formalized conservation efforts that 
have yet to be implemented or to show effectiveness 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: This policy is effective April 28, 2003.

ADDRESSES: Chief, Division of Conservation and Classification, U.S. 
Fish and Wildlife Service, 4401 North Fairfax Drive, Arlington, VA 
22203 (Telephone 703/358-2171, Facsimile 703/358-1735); or Chief, 
Endangered Species Division, National Marine Fisheries Service, Office 
of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910 
(Telephone 301/713-1401, Facsimile 301/713-0376).

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, U.S. Fish and Wildlife Service at the 
above address, telephone 703/358-2171 or facsimile 703/358-1735, or 
Margaret Lorenz, Endangered Species Division, National Marine Fisheries 
Service at the

[[Page 15101]]

above address, telephone 301/713-1401 or facsimile 301/713-0376.

SUPPLEMENTARY INFORMATION:

Background

    This policy provides direction to Service personnel in determining 
how to consider a conservation agreement when making a decision on 
whether a species warrants listing under the Act. It also provides 
information to the groups interested in developing agreements or plans 
that would contribute to making it unnecessary for the Services to list 
a species under the Act.
    On June 13, 2000, we published in the Federal Register (65 FR 
37102) a draft policy for evaluating conservation efforts that have not 
yet been implemented or have not yet demonstrated effectiveness when 
making listing decisions under the Act. The policy establishes two 
basic criteria: (1) The certainty that the conservation efforts will be 
implemented and (2) the certainty that the efforts will be effective. 
The policy provides specific factors under these two basic criteria 
that we will use to direct our analysis of the conservation effort. At 
the time of making listing determinations, we will evaluate formalized 
conservation efforts (i.e., conservation efforts identified in a 
conservation agreement, conservation plan, management plan, or similar 
document) to determine if the conservation effort provides certainty of 
implementation and effectiveness and, thereby, improves the status, as 
defined by the Act, of the species such that it does not meet the Act's 
definition of a threatened or endangered species.
    When we evaluate the certainty of whether the formalized 
conservation effort will be implemented, we will consider the 
following: Do we have a high level of certainty that the resources 
necessary to carry out the conservation effort are available? Do the 
parties to the conservation effort have the authority to carry it out? 
Are the regulatory or procedural mechanisms in place to carry out the 
efforts? And is there a schedule for completing and evaluating the 
efforts? If the conservation effort relies on voluntary participation, 
we will evaluate whether the incentives that are included in the 
conservation effort will ensure the level of participation necessary to 
carry out the conservation effort. We will also evaluate the certainty 
that the conservation effort will be effective. In making this 
evaluation, we will consider the following: Does the effort describe 
the nature and extent of the threats to the species to be addressed and 
how these threats are reduced by the conservation effort? Does the 
effort establish specific conservation objectives? Does the effort 
identify the appropriate steps to reduce threats to the species? And 
does the effort include quantifiable performance measures to monitor 
for both compliance and effectiveness? Overall, we need to be certain 
that the formalized conservation effort improves the status of the 
species at the time we make a listing determination.
    This policy is important because it gives us a consistent set of 
criteria to evaluate formalized conservation efforts. For states and 
other entities that are developing agreements or plans, this policy 
informs them of the criteria we will use in evaluating formalized 
conservation efforts when making listing decisions, and thereby guides 
States and other entities that wish to develop formalized conservation 
efforts that may contribute to making listing unnecessary.
    In the notice of the draft policy, we specifically requested 
comments on the criteria that we would use to evaluate the certainty 
that a formalized conservation effort will be implemented. Also, we 
requested comments on the timing of the development of conservation 
agreements or plans. We have learned that timing is the most critical 
element when developing a successful conservation agreement or plan. 
Encouraging and facilitating early development of conservation 
agreements or plans is an important objective of this policy. Last-
minute agreements (i.e., those that are developed just before or after 
a species is proposed for listing) often have little chance of 
affecting the outcome of a listing decision. Once a species is proposed 
for listing under the Act, we may have insufficient time to include 
consideration of a newly developed conservation plan in the public 
notice and comment process and still meet our statutory deadlines. 
Last-minute efforts are also less likely to be able to demonstrate that 
they will be implemented and effective in reducing or removing threats 
to the species. In addition, there are circumstances in which the 
threats to a species are so imminent and/or complex that it will be 
almost impossible to develop an agreement or plan that includes 
conservation efforts that will result in making the listing 
unnecessary. Accordingly, we encourage the early development of 
formalized conservation efforts before the threats become too extreme 
and imminent and when there is greater flexibility in sufficiently 
improving a species' status to the point where listing the species as 
threatened or endangered is unnecessary.

Summary of Comments and Recommendations

    In response to our request for comments on the draft policy, we 
received letters from 44 entities. Thirty-five were in support of the 
policy and nine were against. We reviewed all comments received and 
have incorporated accepted suggestions or clarifications into the final 
policy text. Because most of these letters included similar comments 
(several were form letters) we grouped the comments according to 
issues. The following is a summary of the relevant comments and our 
responses. We also received comments that were not relevant to the 
policy and, therefore, outside the policy's scope. We responded to some 
of these comments where doing so would clarify the process for 
determining whether a species is endangered or threatened (the listing 
process) or clarify the nature of conservation plans, agreements, and 
efforts.

Policy Scope Issues

    Issue 1: Many commenters felt that this policy should also apply to 
downlisting species from endangered to threatened status and delisting 
actions, or else parties to an agreement where the final decision is to 
list the species would not have any incentives to take action on a 
listed species until a recovery plan is developed. In addition, one 
commenter suggested that the policy scope should be expanded to include 
the process of designating critical habitat.
    Response 1: We believe that the immediate need is to develop 
criteria that will guide consistent and predictable evaluation of 
conservation efforts at the time of a listing determination. We may 
consider such a policy for downlisting or delisting actions in the 
future. However, we note that a recovery plan is the appropriate 
vehicle to provide guidance on actions necessary to delist a species. 
Also, we may consider developing a similar policy for critical habitat 
designations.
    Issue 2: Two commenters stated that our estimates of time needed to 
develop, implement, monitor, and report on conservation efforts are 
underestimated.
    Response 2: We agree that our original estimates were too low. We 
have increased our estimate to an average of 2,500 person-hours to 
complete a conservation agreement (with a range of 1,000 to 4,000 
person-hours). We also increased our estimate of the average number of 
person-hours to conduct monitoring and to prepare a report to

[[Page 15102]]

320 and 80 hours, respectively. We expect the amount of time will vary 
depending on several factors including, but not limited to, the number 
of species addressed, amount of biological information available on the 
species, and the complexity of the threats. Therefore, we have provided 
an average to assist interested parties in their planning efforts.
    Issue 3: One commenter questioned whether we would evaluate 
proposed agreements or plans using the stated criteria automatically or 
only upon request. The commenter also questioned whether we will 
consider agreements or plans that we previously determined were not 
sufficient to prevent the need for listing in combination with ``new'' 
proposed agreements or plans when we evaluate whether to list a 
species.
    Response 3: If a listing proposal is under review, we will consider 
any conservation effort. We will evaluate the status of the species in 
the context of all factors that affect the species' risk of extinction, 
including all known conservation efforts whether planned, under way, or 
fully implemented. However, for formalized conservation efforts not 
fully implemented, or where the results have not been demonstrated, we 
will consider the PECE criteria in our evaluation of whether, and to 
what extent, the formalized conservation efforts affect the species' 
status under the Act.
    Issue 4: One commenter asked the length of time for which a plan is 
approved.
    Response 4: The PECE is not a plan-approval process, nor does it 
establish an alternative to listing. PECE outlines the criteria we will 
consider when evaluating formalized conservation efforts that have not 
yet been fully implemented or do not yet have a record of effectiveness 
at the time we make a listing decision. Should the status of a species 
decline after we make a decision not to list this species, we would 
need to reassess our listing decision. For example, there may be 
situations where the parties to a plan or agreement meet their 
commitments, but unexpected and/or increased threats (e.g., disease) 
may occur that threaten the species' status and make it necessary to 
list the species.
    Issue 5: One commenter asked if the ``new information'' reopener is 
operative at any time.
    Response 5: Yes, because section 4(b)(1) of the Act requires us to 
use the best available scientific and commercial data whenever making 
decisions during the listing process. In making a decision whether to 
list a species, we will take into account all available information, 
including new information regarding formalized conservation efforts. If 
we receive new information on a formalized conservation effort that has 
not yet been implemented or not yet demonstrated effectiveness prior to 
making a listing decision, we will evaluate the conservation effort in 
the context of the PECE criteria. If we receive new information on such 
an effort after we have decided to list a species, then we will 
consider this new information along with other measures that reduce 
threats to the species and may use this information in downlisting the 
species from endangered to threatened status or delisting. However, 
PECE will not control our analysis of the downlisting of the species.
    Issue 6: One commenter stated that it is unrealistic and 
unreasonable to expect agreements to be in place at the time the 
conservation effort is evaluated. In addition, the commenter stated 
that it is particularly unrealistic and unreasonable to expect that 
conservation agreements or plans be submitted within 60 days of 
publication of a proposed rule.
    Response 6: We strongly encourage parties to initiate formalized 
conservation efforts prior to publication of a proposal to list a 
species under the Act. If a formalized conservation effort is submitted 
during the public comment period for a proposed rule, and may be 
significant to the listing decision, then we may extend or reopen the 
comment period to allow time for comment on the new conservation 
effort. However, we can extend the public comment period only if doing 
so does not prevent us from completing the final listing action within 
the statutory timeframe.
    Issue 7: One commenter stated that most existing conservation 
agreements are ineffective, and furthermore that we are unable to 
determine their effectiveness for several years.
    Response 7: We agree that it could take several years for some 
conservation efforts to demonstrate results. However, the PECE criteria 
provide the framework for us to evaluate the likely effectiveness of 
such formalized conservation efforts. Some existing conservation 
efforts have proven to be very effective and have justifiably 
influenced our listing decisions.
    Issue 8: Several commenters stated that funds are better spent to 
list species, designate critical habitat, and implement recovery 
efforts rather than to develop conservation agreements.
    Response 8: Conservation agreements can be seen as early recovery 
efforts. Early conservation efforts to improve the status of a species 
before listing is necessary may cost less than if the species' status 
has already been reduced to the point where it needs to be listed. 
Early conservation of candidate species can reduce threats and 
stabilize or increase populations sufficiently to allow us to use our 
resources for species in greater need of the Act's protective measures.
    Issue 9: Some commenters questioned the 14 conservation agreements 
that we cited which contributed to making listing the covered species 
as threatened or endangered unnecessary. Commenters requested 
information on each plan to better allow the public to evaluate the 
adequacy of the agreements.
    Response 9: We referenced the 14 conservation agreements in the 
Paperwork Reduction Act section of the draft policy and used them 
solely to estimate the information collection and recordkeeping burden 
that would result from our draft policy if it were made final. 
Therefore, we do not recommend using these to comment on the new 
policy.

Biological Issues

    Issue 10: One commenter questioned our method for evaluating a 
conservation plan that addresses only a portion of a species' range.
    Response 10: Using the PECE criteria, we will evaluate all 
formalized conservation efforts that have yet to be implemented or have 
yet to demonstrate results at the time we make our listing decision. 
This is true for efforts that are applicable to all or only a portion 
of the species' range. The PECE does not set standards for how much 
conservation is needed to make listing unnecessary. The significance of 
plans that address only a portion of a species' range will be evaluated 
in the context of the species' overall status. While a formalized 
conservation effort may be effective in reducing or removing threats in 
a portion of the species' range, that may or may not be sufficient to 
remove the need to list the species as threatened or endangered. In 
some cases, the conservation effort may lead to a determination that a 
species warrants threatened status rather than endangered.
    In addition, parties may have entered into agreements to obtain 
assurances that no additional commitments or restrictions will be 
required if the species is listed. A landowner or other non-Federal 
entity can enter into a Candidate Conservation Agreement with 
Assurances (CCAA) (64 FR 32726, June 17, 1999), which are formal 
agreements between us and one or more non-Federal parties that address 
the conservation needs of proposed or

[[Page 15103]]

candidate species, or species likely to become candidates. These 
agreements provide assurances to non-Federal property owners who 
voluntarily agree to manage their lands or waters to remove threats to 
candidate or proposed species, or to species likely to become 
candidates. The assurances are authorized under the CCAA regulations 
(50 CFR 17. 22(d)(5) and 17.32(d)(5)) and provide non-Federal property 
owners assurances that their conservation efforts will not result in 
future regulatory obligations in excess of those they agree to at the 
time they enter into the Agreement. Should the species eventually be 
listed under the Act, landowners will not be subjected to increased 
property use restrictions as long as they conform to the terms of the 
agreement. While one of these agreements may not remove the need to 
list, several such agreements, covering a large portion of the species' 
range, may.
    Issue 11: Several commenters suggested that the Services should 
consider conservation efforts developed for species other than the 
species for which a listing decision is being made when the species 
have similar biological requirements and the conservation effort 
addresses protection of habitat of the species for which a listing 
decision is being made.
    Response 11: We agree. When a decision whether or not to list a 
species is being made, we will consider all conservation efforts that 
reduce or remove threats to the species under review, including 
conservation efforts developed for other species. However, for all 
formalized conservation efforts that have not yet been implemented or 
have yet to demonstrate results, we will use the PECE criteria to 
evaluate the conservation effort for certainty of implementation and 
effectiveness for the species subject to the listing decision.
    Issue 12: One commenter stated the ``biology/natural history'' of 
the species should be adequately known and explained in order to 
evaluate the effectiveness of the effort.
    Response 12: When we consider the elements under the effectiveness 
criterion, we will evaluate whether the formalized conservation effort 
incorporates the best available information on the species' biology and 
natural history. However, due to variation in the amount of information 
available about different species and the threats to their existence, 
the level of information necessary to provide a high level of certainty 
that the effort will be effective will vary.
    We believe it is important, however, to start conservation efforts 
as early as possible even if complete biological information is 
lacking. Regardless of the extent of biological information we have 
about a species, there will almost always be some uncertainty about 
threats and the most effective mechanisms for improving the status of a 
species. We will include the extent of gaps in the available 
information in our evaluation of the level of certainty that the 
formalized conservation effort will be effective. One method of 
addressing uncertainty and accommodating new information is the use of 
monitoring and the application of adaptive management principles. The 
PECE criteria note that describing the threats and how those threats 
will be removed, including the use of monitoring and adaptive 
management principles, as appropriate, is critical to determining that 
a conservation effort that has yet to demonstrate results has reduced 
or removed a particular threat to a species.
    Issue 13: Several commenters suggested that affected party(ies) 
should work with the Services to identify species that will be proposed 
for listing in the near future to help concentrate and direct efforts 
to those species that most warrant the protection, and help make the 
party(ies) aware of when and what actions should be taken to help 
conserve species in need.
    Response 13: We do identify species in need of protection. The FWS 
publishes a Candidate Notice of Review (CNOR) in which the FWS 
identifies those species of plants and animals for which they have 
sufficient information on the species' biological status and threats to 
propose them as endangered or threatened under the Act, but for which 
development of a proposed listing regulation is precluded by other 
higher priority listing activities. NMFS, which has jurisdiction over 
marine species and some anadromous species, defines candidate species 
more broadly to include species whose status is of concern but more 
information is needed before they can be proposed for listing. NMFS 
candidate species can be found on their web site at http://www.nmfs.noaa.gov. The FWS's CNOR is published in the Federal Register 
and can also be found on their web site at http://endangered.fws.gov.
    We agree that it is important to start developing and implementing 
conservation efforts and coordinating those efforts with us as early as 
possible. Early conservation helps preserve management options, 
minimizes the cost of reducing threats to a species, and reduces the 
potential for land use restrictions in the future. Addressing the needs 
of species before the regulatory protections associated with listing 
under the Act come into play often allows greater management 
flexibility in the actions necessary to stabilize or restore these 
species and their habitats. Early implementation of conservation 
efforts may reduce the risk of extinction for some species, thus 
eliminating the need for them to be listed as threatened or endangered.
    Issue 14: One commenter stated that requiring an implementation 
schedule/timeline for conservation objectives is not feasible when 
baseline data on a species is poorly understood. The policy should 
recognize that variation in patterns of species distribution and land 
ownership will cause variation in the difficulty of developing 
conservation efforts. Thus, some conservation efforts should be 
allotted more time for their completion.
    Response 14: Biological uncertainty is a common feature of any 
conservation effort. Nevertheless, some conservation actions can 
proceed even when information on the species is incomplete. 
Implementation schedules are an important element of all formalized 
conservation planning efforts (e.g., recovery plans). The 
implementation schedule identified in PECE criterion A.8. establishes a 
timeframe with incremental completion dates for specific tasks. In 
light of the information gaps that may exist for some species or 
actions, schedules for completing certain tasks may require revision in 
response to new information, changing circumstances, and the 
application of adaptive management principles. Including an 
implementation schedule in a formalized conservation effort is critical 
to determining that the effort will be implemented and effective and 
has improved the status of the species under the Act at the time we 
make our listing determination.
    We acknowledge that the amount of time required to develop and 
implement formalized conservation efforts will vary. Therefore, we 
encourage early development and implementation of conservation efforts 
for species that have not yet become candidates for listing and for 
those species that are already candidates. This policy does not dictate 
timeframes for completing conservation efforts. However, the Act 
mandates specific timeframes for many listing decisions, and we cannot 
delay final listing actions to allow for the development and signing of 
a conservation agreement or plan. We and participants must also 
acknowledge that, for species that are poorly known, or whose threats 
are not well understood, it is unlikely that conservation efforts that 
have not been implemented or that have yet to yield

[[Page 15104]]

results will have improved the status of the species sufficiently to 
play a significant role in the listing decision.
    Issue 15: One commenter stated that the Services, when evaluating 
the certainty of conservation efforts while making listing decisions, 
should factor into the analysis the Services' ability to open or reopen 
the listing process at any time, and to list the species on an 
emergency basis if necessary.
    Response 15: We will initiate or revisit a listing decision if 
information indicates that doing so is warranted, and on an emergency 
basis if there is an imminent threat to the species' well-being. 
However, we do not make any listing determinations based on our ability 
to change our decisions. We base our listing decisions on the status of 
the species at that time, not on some time in the future.

Criteria Issues

    Issue 16: Several commenters requested that we further explain the 
criteria for both implementation and effectiveness. The commenters 
claim that our criteria are too vague and are subject to interpretation 
by the Services. One commenter said that, by stating ``this list should 
not be considered comprehensive evaluation criteria,'' the policy 
allows the Services to consider criteria not addressed in the 
agreement, and allows for too much leeway for the Services to reject 
conservation efforts of an agreement, even if all criteria listed in 
the draft policy are satisfied.
    Response 16: PECE establishes a set of criteria for us to consider 
when evaluating formalized conservation efforts that have not yet been 
implemented or have not yet demonstrated effectiveness to determine if 
the efforts have improved the status of the species. At the time of the 
listing decision, we must find, with minimal uncertainty, that a 
particular formalized conservation effort will be implemented and will 
be effective, in order to find that the effort has positively affected 
the conservation status of a species. Meeting these criteria does not 
create an approval process. Some conservation efforts will address 
these criteria more thoroughly than others. Because, in part, 
circumstances vary greatly among species, we must evaluate all 
conservation efforts on a case-by-case basis at the time of listing, 
taking into account any and all factors relevant to whether the 
conservation effort will be implemented and effective.
    Similarly, the list of criteria is not comprehensive because the 
conservation needs of species will vary greatly and depend on species-
specific, habitat-specific, location-specific, and action-specific 
factors. Because conservation needs vary, it is not possible to state 
all of the factors that might determine the ultimate effectiveness of 
formalized conservation efforts. The species-specific circumstances 
will also determine the amount of information necessary to satisfy 
these criteria. Evaluating the certainty of the effectiveness of a 
formalized conservation effort necessarily includes an evaluation of 
the technical adequacy of the effort. For example, the effectiveness of 
creating a wetland for species conservation will depend on soil 
texture, hydrology, water chemistry, and other factors. Listing all of 
the factors that we would appropriately consider in evaluations of 
technical adequacy is not possible.
    Issue 17: One commenter suggested that we consider conservation 
plans in the development stage rather than waiting until finalized due 
to the possible benefits that may result from initial efforts.
    Response 17: Plans that have not been finalized and, therefore, do 
not conform to the PECE criteria, may have some conservation value for 
the species. For example, in the process of developing a plan, 
participants and the public may become more informed about the species 
and its conservation needs. We will consider any benefits to a species 
that have accrued prior to the completion of an agreement or plan in 
our listing decision, under section 4(b)(1)(A) of the Act. However, the 
mere existence of a planning process does not provide sufficient 
certainty to actually improve the status of a species. The criteria of 
PECE set a rigorous standard for analysis and assure a high level of 
certainty associated with formalized conservation efforts that have not 
been implemented, or have yet to yield results, in order to determine 
that the status of the species has improved.
    We encourage parties to involve the appropriate Service during the 
development stage of all conservation plans, whether or not they are 
finalized prior to a listing decision. Sharing of the best available 
information can lead to developing better agreements. In the event that 
the focus species is listed, these planning efforts can be utilized as 
the basis for development of Safe Harbor Agreements or Habitat 
Conservation Plans, through which we can permit incidental take under 
Section 10(a) of the Act, or provide a basis for a recovery plan.
    Issue 18: Several commenters stated that the policy should provide 
more sufficient, clear criteria by which the implementation and 
effectiveness of conservation efforts is monitored and assessed. One 
commenter also suggested that we require a specific reporting format to 
help show effectiveness of conservation efforts.
    Response 18: When evaluating formalized conservation efforts under 
PECE, we will consider whether the effort contains provisions for 
monitoring and reporting implementation and effectiveness results (see 
criterion B.5).
    Regarding a standard reporting format, the nature of the formalized 
conservation efforts we evaluate will probably vary a great deal. 
Efforts may range from complex to single-threat approaches. Therefore, 
for us to adopt a one-size-fits-all approach to report on monitoring 
efforts and results would be inappropriate.
    Issue 19: One commenter stated that PECE is too demanding with 
respect to identification and commitment of resources ``up-front,'' and 
that these strict requirements and commitments on conservation efforts 
harm the voluntary nature of agreements.
    Response 19: Addressing the resources necessary to carry out a 
conservation effort is central to establishing certainty of plan 
implementation and effectiveness. Accordingly, we believe that PECE 
must establish a minimum standard to assure certainty of implementation 
and effectiveness. This certainty is necessary in determining whether 
the conservation effort has improved the status of species.
    It is our intention and belief that the PECE criteria will actually 
increase the voluntary participation in conservation agreements by 
increasing the likelihood that parties' voluntary efforts and 
commitments that have yet to be implemented or have yet to demonstrate 
results will play a role in a listing decision.

Issues Related to Specific Changes

    Several commenters recommended specific changes to the evaluation 
criteria. The recommended additions in language to the criteria are 
italicized and deletions are shown in strikeout to help the reader 
identify the proposed changes.
    Issue 20: Commenters stated that there is potential confusion 
between evaluation criteria A.2. (authority) and A.3.(authorization) as 
they believed some Service staff may have difficulty distinguishing 
between an ``authority,'' and an ``authorization.'' To help eliminate 
this potential confusion, commenters requested that criterion A.2. be 
changed to read: ``the legal authority of the party(ies) to the 
agreement or plan to implement the conservation effort and the legal

[[Page 15105]]

procedural requirements necessary to implement the effort are 
described.'' They also requested that we change criterion A.3. to read: 
The legal requirements (e.g. permits, environmental review documents) 
necessary to implement the conservation effort are identified, and an 
explanation of how the party(ies) to the agreement or plan that will 
implement the effort will fulfill these requirements is provided.''
    Response 20: We agree with adding the word ``legal'' and also have 
incorporated additional language and separated this criterion (former 
criterion A.2) into two criteria (A.2. and A.3.). Evaluation Criterion 
A.2. now reads, ``The legal authority of the party(ies) to the 
agreement or plan to implement the formalized conservation effort, and 
the commitment to proceed with the conservation effort are described.'' 
New evaluation Criterion A.3. reads, ``The legal procedural 
requirements necessary to implement the effort are described, and 
information is provided indicating that fulfillment of these 
requirements does not preclude commitment to the effort.'' In making 
these changes, we recognize that there may be overlap between new 
criterion A.3. and the criterion on authorizations (now A.4.), but our 
intent is to separate a criterion on procedural requirements from 
substantive authorizations (e.g. permits). We believe that we need to 
specifically determine that the parties to the agreement will obtain 
the necessary authorizations. We also recognize that parties may not be 
able to commit to some conservation efforts until they have fulfilled 
procedural requirements (e.g. under the National Environmental Policy 
Act) since some laws preclude commitment to a specific action until 
certain procedures are completed. Additionally, in creating a new 
criterion A.3., we find it unnecessary to incorporate the suggested 
changes to old A.3. (now A.4.).
    Issue 21: Commenters requested the following change to Criterion 
A.4. (now Criterion A.5.): ``The level of voluntary participation 
(e.g., permission to enter private land or other contributions by 
private landowners) necessary to implement the conservation effort is 
identified, and an explanation of how 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)''.
    Response 21: We do not believe that including ``an explanation of 
how the party(ies) * * * will obtain that level of voluntary 
participation * * *'' will provide us with enough information in order 
to determine that necessary voluntary participation will, in fact, be 
obtained. Evaluation Criterion A.5. (formerly A.4.) now reads: ``The 
type and level of voluntary participation (e.g., number of landowners 
allowing entry to their land, or number of participants agreeing to 
change timber management practices and acreage involved) necessary to 
implement the conservation effort is identified, and a high level of 
certainty is provided that the party(ies) to the agreement or plan that 
will implement the conservation effort will obtain that level of 
voluntary participation (e.g., an explanation of how incentives to be 
provided will result in the necessary level of voluntary 
participation).''
    Issue 22: Commenters suggested that Evaluation Criterion A.5. (now 
criterion A.6.) be changed to read as ``Any statutory or regulatory 
deficiency or barrier to implementation of the conservation effort is 
identified and an explanation of how the party(ies) to the agreement or 
plan that will implement the effort will resolve the deficiency or 
barriers is provided.''
    Response 22: We do not agree with the suggested language change. We 
believe that all regulatory mechanisms, including statutory 
authorities, must be in place to ensure a high level of certainty that 
the conservation effort will be implemented.
    Issue 23: The suggested change to Evaluation Criterion A.6. (now 
A.7.) is ``A fiscal schedule and plan is provided for the conservation 
effort, including a description of the obligations of party(ies) to the 
agreement or plan that will implement the conservation effort, and an 
explanation of how they will obtain the necessary funding is 
provided.''
    Response 23: We do not agree with the suggested language change 
since we believe that there must be a high level of certainty that the 
party(ies) will obtain the necessary funding to implement the effort. 
While we agree that including a fiscal schedule, a description of the 
obligations of the party(ies), and an explanation of how they will 
obtain the funding is important, this information, by itself, does not 
provide enough certainty for us to consider a formalized conservation 
effort that has not yet been implemented as contributing to a listing 
decision. Also see our response to Issue 41.
    Issue 24: One commenter suggested that the Services should consider 
an incremental approach to evaluating implementation dates for the 
conservation effort.
    Response 24: We agree with the commenter's suggested change. 
Evaluation Criterion A.8. (formerly A.7.) now reads as: ``An 
implementation schedule (including incremental completion dates) for 
the conservation effort is provided.''
    Issue 25: Commenters suggested that Criterion A.8. (now A.9.) be 
revised to read: ``The conservation agreement or plan that includes the 
conservation effort include a commitment by the party(ies) to apply 
their legal authorities and available resources as provided in the 
agreement or plan.''
    Response 25: The participation of the parties through a written 
agreement or plan establishes each party's commitment to apply their 
authorities and resources to implementation of each conservation 
effort. Therefore, it is unnecessary to include the suggested language; 
criterion A.9. (formerly A.8.) remains unchanged.
    Issue 26: A commenter also suggested adding a criterion: ``Evidence 
that other conservation efforts have been implemented for sympatric 
species within the same ecosystem that may provide benefits to the 
subject species is provided.''
    Response 26: We do not think it is necessary to add such a 
criterion. At the time of listing, we will take into consideration all 
relevant information, including the effect of other conservation 
efforts for sympatric species on the status of the species we are 
considering for listing.
    Issue 27: Several commenters recommended that we make specific 
changes to the Criterion B.1. language to read as: ``The nature and 
extent of threats being addressed by the conservation effort are 
described, and how the conservation effort will reduce the threats are 
defined.'' In addition, commenters suggested we change Criterion B.2. 
to read as: ``Explicit incremental objectives for the conservation 
effort and dates for achieving them should be stated.''
    Response 27: We agree that, in addition to identifying threats, the 
plan should explain how formalized conservation efforts reduce threats 
to the species. Therefore, Evaluation Criterion B.1. now reads as: 
``The nature and extent of threats being addressed by the conservation 
effort are described, and how the conservation effort reduces the 
threats is described.'' We agree that conservation efforts should 
include incremental objectives. This allows the parties to evaluate 
progress toward the overall goal of a conservation effort, which is 
essential for adaptive

[[Page 15106]]

management. In addition, setting and achieving interim objectives is 
helpful in maintaining support for the effort. Therefore, Evaluation 
Criterion B.2. now reads as: ``Explicit incremental objectives for the 
conservation effort and dates for achieving them are stated.''
    Issue 28: Some commenters recommended that the party's (ies') prior 
record with respect to development and implementation of conservation 
efforts be recognized towards their credibility and reliability to 
implement future conservation efforts. A commenter also suggested 
adding a criterion to read as: ``Demonstrated ability of the party(ies) 
to develop and implement effective conservation efforts for this or 
other species and habitats.'' Another comment suggested that the 
history and momentum of a program should be taken into account (e.g., 
watershed council programs) when considering the certainty of 
effectiveness and implementation. These considerations would help 
ensure a high level of certainty that regulatory mechanisms, funding 
authorizations, and voluntary participation will be adopted by a 
specified date adequate to provide certainty of implementation.
    Response 28: Although it would be beneficial for the party(ies) to 
demonstrate their past abilities to implement effective formalized 
conservation efforts for the focus species or other species and 
habitats, we do not believe that this is necessary to demonstrate a 
high level of certainty that the conservation effort will be 
implemented. In addition, a criterion that emphasizes previous 
experience in implementing conservation efforts may limit formalized 
conservation efforts to only those party(ies) that have a track record 
and would unjustifiably constrain consideration of efforts by those who 
do not satisfy this criterion. Such parties can provide certainty in 
other ways. We agree that a party's (ies') prior record and history 
with respect to implementation of conservation efforts should be 
recognized towards their credibility and reliability. Information 
concerning a party's experience in implementing conservation efforts 
may be useful in evaluating how their conservation effort satisfies the 
PECE criteria. The momentum of a project is a good indication of the 
progress that is being made towards a party's (ies') conservation 
efforts, but momentum can decrease, and thus cannot be solely relied 
upon to determine the certainty that a formalized conservation effort 
will be implemented or effective.
    Issue 29: One commenter stated that our use of ``must'' in meeting 
the criteria is inappropriate in the context of a policy, and the 
policy should rather be treated as guidance.
    Response 29: The only mandatory statements in the policy refer to 
findings that we must make. In order for us to find that a particular 
formalized conservation effort has improved the status of the species, 
we must be certain that the formalized conservation effort will be 
implemented and will be effective. No party is required to take any 
action under this policy. Rather the policy provides us guidance on how 
we will evaluate formalized conservation efforts that have yet to be 
implemented or have yet to demonstrate effectiveness at the time of our 
listing decision.

Legal Issues

    Issue 30: Many commenters mentioned past litigation (i.e., 
decisions on coho salmon and Barton Springs salamander) in which the 
courts have ruled against the Services in cases that have involved 
Candidate Conservation Agreements or other conservation efforts, and 
question how the PECE policy addresses this issue. Commenters question 
how this policy will keep the Services from relying on speculative 
conservation efforts.
    Response 30: We referenced past adverse decisions when we published 
the draft policy. The purpose of PECE, in part, is to address 
situations similar to those in which some courts found past 
conservation efforts insufficient. We developed the PECE to establish a 
set of consistent standards for evaluating certain formalized 
conservation efforts at the time of a listing decision and to ensure 
with a high level of certainty that formalized conservation efforts 
will be implemented and effective. We agree that we may not rely on 
speculative promises of future action when making listing decisions.
    Issue 31: Several commenters questioned the legality of considering 
private party's (ies') input when section 4(b)(1)(A) of the Act states 
''* * * and after taking 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 * * *'' In addition, 
commenters stated that the PECE policy is inconsistent with the plain 
language and the congressional intent of the Act by allowing agencies 
to evaluate any private measures. They also stated that this was 
inconsistent with considering section 4(a)(1)(D), which only permits 
agencies to evaluate ``existing regulatory mechanisms.'' They also 
stated that the Services incorrectly conclude that section 4(a)(1)(E), 
``other natural or manmade factors affecting [the species'] continued 
existence,'' allows the Services to consider actions of ``any other 
entity'' in making listing determinations. One commenter stated that 
there are no provisions to authorize the Services to consider voluntary 
conservation agreements by other Federal agencies. In 1982, the Act 
omitted 1973 language for listing determinations made with ``other 
interested Federal agencies.'' In addition, the commenters stated that 
the Act imposes conservation duties on all Federal agencies only after 
the Services have taken the initial step in listing the species.
    Response 31: Please refer to the Policy Scope section for an 
explanation of our authority under section 4 of the Act to assess all 
threats affecting the species status as well as all efforts that reduce 
threats to the species.
    Issue 32: One commenter suggested that we formalize this policy by 
codifying it in the Code of Federal Regulations. They suggest that by 
adopting this policy as agency regulation, we can make the policy more 
binding, provide a basis for judicial deference, and thus hopefully 
reduce the amount of litigation.
    Response 32: We believe that codifying PECE in the Code of Federal 
Regulations is not necessary because it is intended as a policy to 
guide how we will evaluate formalized conservation efforts when making 
listing decisions.
    Issue 33: Some commenters believe that all regulatory mechanisms 
must be in place prior to finalizing a conservation plan, while other 
commenters feel that this requirement may dissuade voluntary 
conservation efforts of private landowners. One commenter stated that, 
based on the amount of time usually needed to enact most regulatory 
mechanisms, it seems appropriate to set this minimum standard for 
evaluating formalized conservation efforts. This criterion should 
prompt more serious political consideration of adopting a regulatory 
mechanism sooner rather than later. Another commenter suggested that, 
instead of requiring regulations, we should require cooperators to 
identify and address any regulatory deficiencies affecting the species.
    Response 33: In order for us to determine with a high level of 
certainty that a formalized conservation effort will be implemented, 
among other things, all regulatory mechanisms necessary to implement 
the effort must be in place at the time we make our listing decision. 
However, there may be

[[Page 15107]]

situations where regulatory mechanisms are not necessary for 
implementing the conservation effort due to the nature of the action 
that removes threats, or there may be situations where necessary 
regulatory mechanisms are already in place.
    Issue 34: One commenter stated that only when an alternative 
regulatory mechanism provides the same or higher protections than 
listing can the threat factors be said to be alleviated. A high level 
of certainty over future funding or voluntary participation might be 
acceptable if alternative regulatory mechanisms to prevent take in the 
interim are in place.
    Response 34: Determinations to list species under the Act are based 
solely on whether or not they meet the definitions of threatened or 
endangered as specified by the Act. Through PECE, we will evaluate, at 
the time of our listing decision, whether a formalized conservation 
effort adequately reduces threats and improves the status of the 
species to make listing unnecessary. Additional alternative regulatory 
mechanisms to prevent take are not necessary if the threats to the 
species are reduced to the point that the species does not meet the 
definitions of threatened or endangered.
    Issue 35: One commenter stated concern that the Services would not 
be able to provide assurances to private landowners because no specific 
provisions in the Act authorize conservation agreements in lieu of 
listing, and that third party lawsuits also undermine the Services' 
assurances. One commenter asked what future protection of their ongoing 
actions participants would receive.
    Response 35: Satisfying the PECE criteria does not provide 
assurances that we will not decide to list a species. Also, because of 
the individual nature of species and the circumstances of their status, 
PECE does not address how much conservation is required to make listing 
unnecessary. Because of the numerous factors that affect a species' 
status, we may list a species despite the fact that one or more 
formalized conservation efforts have satisfied PECE. However, 
assurances can be provided to non-Federal entities through an approved 
Candidate Conservation Agreement with Assurances (CCAA) and in an 
associated enhancement of survival permit issued under section 
10(a)(1)(A) of the Act. Many property owners desire certainty with 
regard to future regulatory restrictions to guarantee continuation of 
existing land or water uses or to assure allowance for future changes 
in land use. By facilitating this kind of individual land use planning, 
assurances provided under the CCAA policy can substantially benefit 
many property owners. These agreements can have significance in our 
listing decisions, and we may also evaluate them according to the 
criteria in the PECE if they are not yet implemented or have not 
demonstrated results. However, we will make the determination of 
whether these CCAAs preclude or remove any need to list the covered 
species on a case-by-case basis in accordance with the listing criteria 
and procedures under section 4 of the Act.
    Issue 36: Several commenters stated that the PECE does not always 
provide incentives to conserve species and is, therefore, not supported 
by the Congressional finding of section 2(a)(5) of the Act. The 
commenters stated that the parties lack incentives to develop 
conservation programs until after the species is listed (e.g., Building 
Industry Association of Southern California v. Babbitt, where listing 
the coastal California gnatcatcher encouraged enrollment in 
conservation programs.) In addition, they stated that PECE provides a 
means for the listing process to be avoided entirely, and, therefore, 
may often fail to provide incentives that Congress referred to in its 
findings in section 2(a)(5). They stated that the ``system'' of 
incentives to which that Congressional finding refers is already found 
in incidental take provisions in section 10 of the Act, which will 
better ensure development and implementation of successful conservation 
programs.
    Response 36: PECE is not ``a way to avoid listing'' or an ``in lieu 
of listing'' policy. This policy outlines guidance on the criteria we 
will use to evaluate formalized conservation efforts in determining 
whether to list a species. Knowing how we will evaluate any 
unimplemented or unmeasured formalized conservation efforts may help 
parties draft more effective agreements. However, there is a 
conservation incentive because, if a species becomes listed, these 
efforts can contribute to recovery and eventual delisting or 
downlisting of the species. Also, see our response to Issue 35.
    Issue 37: Several commenters stated that relying on unimplemented 
future conservation measures is inconsistent with the definitions of 
``threatened species'' and ``endangered species'' as provided in 
section 3 of the Act, and that PECE's evaluation of future, 
unimplemented conservation efforts in listing determinations is 
inconsistent with both the plain language of the Act and Congressional 
intent. Also, the commenters stated that the PECE erroneously claims 
that the definitions of ``threatened species'' and ``endangered 
species'' connote future status, not present status.
    Response 37: We agree that, when we make a listing decision, we 
must determine the species' present status which includes, in part, an 
evaluation of current threats. However, deciding or determining whether 
a species meets the definition of threatened or endangered also 
requires us to make a prediction about the future persistence of a 
species. Central to this concept is a prediction of future conditions, 
including consideration of future negative effects of anticipated human 
actions. The language of the Act supports this approach. The 
definitions for both ``endangered species'' and ``threatened species'' 
connote future condition, 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. We cannot protect species 
without taking into account future threats to a species. The Act does 
not require that, and species conservation would be compromised if, we 
wait until a threat is actually impacting populations before we list 
the species as threatened or endangered. Similarly, the magnitude and/
or imminence of a threat may be reduced as a result of future positive 
human actions. Common to the consideration of both the negative and 
positive effects of future human actions is a determination of the 
likelihood that the actions will occur and that their effects on the 
species will be realized. Therefore, we consider both future negative 
and future positive impacts when assessing the listing status of the 
species. The first factor in section 4(a)(1)--``the present or 
threatened destruction, modification, or curtailment of [the species'] 
habitat or range''--identifies how analysis of 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 are necessary to assess a species' status. However, 
future Federal, state, local, or private actions that affect a species 
are not limited to actions that will affect a species' habitat or 
range. Congress did not intend for us to consider 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

[[Page 15108]]

by the language of the Act, to require us to consider both current 
actions that affect a species' status and sufficiently certain future 
actions--either positive or negative--that affect a species' status.
    Issue 38: Several commenters stated that PECE's ``sufficient 
certainty'' standard is inconsistent with the Act's ``best available 
science'' standard. They stated that courts have ruled that any 
standard other than ``best available science'' violates the plain 
language and the Congressional intent of the Act. The commenters also 
stated that the ``sufficient certainty'' standard violates 
Congressional intent because it weakens the standard required by the 
Act to list species and can result in unnecessary, and potentially 
harmful, postponement of affirmative listing.
    Response 38: We agree that our listing decisions must be based on 
the best available science. PECE does not address or change the listing 
criteria and procedures established under section 4 of the Act. Listing 
analyses include the evaluation of conservation efforts for the species 
under consideration. PECE is designed to help ensure a consistent and 
rigorous review of formalized conservation efforts that have yet to be 
implemented or efforts that have been implemented but have not yet 
shown effectiveness by establishing a set of standards to evaluate the 
certainty of implementation and effectiveness of these efforts.
    Issue 39: Several commenters stated that PECE reduces or eliminates 
public comment on proposed rules to list species and is in violation of 
the Administrative Procedure Act (APA). Further, they stated that PECE 
violates the APA by allowing submission of formalized conservation 
measures after the proposed rule is issued to list species as 
threatened or endangered. Receiving ``conservation agreements or plans 
before the end of the comment period in order to be considered in final 
listing decision'' encourages landowners to submit conservation 
agreements at the last minute to avoid public scrutiny, and the PECE 
process could be a potential delay tactic used by landowners to 
postpone the listing of species. They stated that the Courts agree that 
failure of the Services to make available to the public conservation 
agreements on which listing decisions are based violates the public 
comment provision of the APA.
    Response 39: All listing decisions, including those involving 
formalized conservation agreements, will comply with the requirements 
of the APA and ESA. If we receive a formalized conservation agreement 
or plan during an open comment period and it presents significant new 
information relevant to the listing decision, we would either extend or 
reopen the public comment period to solicit public comments 
specifically addressing that plan or agreement. We recognize, however, 
that there may be situations where APA requirements must be reconciled 
with the ESA's statutory deadlines.
    Issue 40: Several commenters expressed their concern that 
conservation efforts do not have binding obligations.
    Response 40: While PECE does not require participants to have 
binding obligations, the policy does require a high level of certainty 
that a conservation effort will be implemented and effective at the 
time we make our listing decision. Furthermore, any subsequent failure 
to satisfy one or more PECE criteria would constitute new information 
and, depending on the significance of the formalized conservation 
effort to the species' status, may require a reevaluation of whether 
there is an increased risk of extinction, and whether that increased 
risk indicates that the species' status is threatened or endangered.

Funding Issues

    Issue 41: Several commenters requested that we further specify our 
criteria stating that ``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.'' In addition, one 
commenter questioned whether ``a high level of certainty'' for 
authorizations or funding was really an improvement over the status quo 
and suggested that we either list the required elements we will use to 
evaluate completeness of the conservation efforts or quantitatively 
define an evaluation standard.
    Response 41: A high level of certainty of funding does not mean 
that funding must be in place now for implementation of the entire 
plan, but rather, it means that we must have convincing information 
that funding will be provided each year to implement relevant 
conservation efforts. We believe that at least 1 year of funding should 
be assured, and we should have documentation that demonstrates a 
commitment to obtain future funding, e.g., documentation showing 
funding for the first year is in place and a written commitment from 
the senior official of a state agency or organization to request or 
provide necessary funding in subsequent budget cycles, or documentation 
showing that funds are available through appropriations to existing 
programs and the implementation of this plan is a priority for these 
programs. A fiscal schedule or plan showing clear links to the 
implementation schedule should be provided, as well as an explanation 
of how the party(ies) will obtain future necessary funding. It is also 
beneficial for entities to demonstrate that similar funding was 
requested and obtained in the past since this funding history can show 
the likelihood that future funding will be obtained.
    Issue 42: One commenter suggested that the PECE policy holds 
qualifying conservation efforts to a higher standard than recovery 
plans. The commenter quoted several existing recovery plans that 
included disclaimers about budget commitments associated with specific 
tasks. Therefore, the commenter concluded that it is unrealistic and 
unreasonable to mandate that funding be in place when a conservation 
effort is evaluated.
    Response 42: The Act does not require that certainty of 
implementation be provided for recovery management actions for listed 
species or conservation efforts for nonlisted species. Likewise, the 
PECE does not require that certainty of implementation be provided for 
during development of conservation efforts for nonlisted species. It is 
inappropriate to consider the PECE as holding conservation plans or 
agreements to a higher standard than the standard that exists for 
recovery plans because the PECE does not mandate a standard for 
conservation plans or agreements at the time of plan development. 
Rather, the PECE provides us guidance for the evaluation of 
conservation efforts when making a listing decision for a nonlisted 
species.
    Recovery plans for listed species and conservation plans or 
agreements for nonlisted species identify needed conservation actions 
but may or may not provide certainty that the actions will be 
implemented or effective. However, when making a listing decision for 
nonlisted species, we must consider the certainty that a conservation 
effort will be implemented and effective. The PECE establishes criteria 
for us to use in evaluating conservation efforts when making listing 
decisions.
    It is possible that we would evaluate a management action 
identified in a recovery plan for a listed species using the PECE. If, 
for example, a yet-to-be-implemented task identified in a recovery plan 
for a listed species would also benefit a nonlisted species, we, in 
making a listing decision for the nonlisted species, would apply the 
PECE criteria to that task to determine whether it could be considered 
as contributing to a decision not to list the

[[Page 15109]]

species or to list the species as threatened rather than endangered. In 
this situation, we would evaluate the management task identified in a 
recovery plan using the PECE criteria in the same way as other 
conservation efforts for the nonlisted species. That is, the recovery 
plan task would be held to the same evaluation standard in the listing 
decision as other conservation efforts.

Foreign Species Issues

    Issue 43: One commenter asked why the proposed policy excluded 
conservation efforts by foreign governments, even though section 
4(b)(1)(A) of the Act requires the Services to take such efforts into 
account. This commenter also stated that the proposed policy is 
contrary to ``The Foreign Relations Law of the United States,'' which 
he argues requires the United States to defer to other nations when 
they have a ``clearly greater interest'' regarding policies or 
regulations being considered by the United States that could negatively 
affect their nations.
    Response 43: As required by the Act, we have taken and will 
continue to take into account conservation efforts by foreign countries 
when considering listing of foreign species (sections 4(b) and 8 of the 
Act). Furthermore, whenever a species whose range occurs at least in 
part outside of the United States is proposed for a listing action 
(listing, change in status, or delisting), we communicate with and 
solicit the input of the countries within the range of the species. At 
that time, countries are provided the opportunity to share information 
on the status of the species, management of the species, and on 
conservation efforts within the foreign country. We will take those 
comments and information provided into consideration when evaluating 
the listing action, which by law must follow the analysis outlined in 
sections 4(a) and 4(b) of the Act. Thus, all listing decisions for 
foreign species will continue to comply with the provisions of the Act.

Issues Outside Scope of Policy

    We received several comments that were outside of the scope of 
PECE. Below, we have briefly addressed these comments.
    Issue 44: A comment was made that the Services should not list 
foreign species under the Act when such listing is in conflict with the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES).
    Response 44: Considerations regarding CITES are outside the scope 
of the PECE. However, we do not believe there is a conflict with CITES 
and listing of a foreign species under the Act. When evaluating the 
status of foreign species under the Act, we take into consideration 
whether the species is listed under CITES (and if listed, at what 
level) and all available information regarding the listing. If you have 
questions regarding CITES, please contact the FWS Division of 
Scientific Authority at 4401 N. Fairfax Drive, Room 750, Arlington, VA 
22203 or by telephone at 703-358-1708.
    Issue 45: One commenter stated that all conservation agreements/
plans should be subject to independent scientific peer review. This 
commenter also argued that any conservation agreement or plan for a 
candidate species should remove all known major threats for the species 
and convey a reasonably high certainty that the agreement or plan will 
result in full conservation of the species.
    Response 45: We believe that scientific review can help ensure that 
formalized conservation efforts are comprehensive and effective, and we 
expect that most or all participants will seek scientific review, but 
we will not require a formal independent peer review of conservation 
plans at the time of development. If a formalized conservation plan is 
presented for a species that has been proposed for listing, all 
relevant information, including formalized conservation efforts, will 
be subject to independent scientific review consistent with our policy 
on peer review (59 FR 34270). We will also solicit public comments on 
our listing proposals.
    The amount or level of conservation proposed in a conservation plan 
(e.g., removal of all versus some of the major threats) is outside the 
scope of PECE. Assuming that all of the PECE criteria have been 
satisfied for the efforts to which they apply, it stands to reason that 
plans that comprehensively address threats are likely to be more 
influential in listing decisions than plans that do not thoroughly 
address the conservation of the species. We believe that by 
establishing the PECE criteria for certainty of implementation and 
effectiveness, we are promoting the development of plans that improve 
the status of species. We expect that in some cases this improvement 
will reduce the risk of extinction sufficiently to make listing under 
the Act unnecessary, to result in listing a species as threatened 
rather than endangered, or to make classifying a species as a candidate 
for listing unnecessary.
    Issue 46: Several commenters questioned the extent of state 
involvement in the development of conservation efforts. One commenter 
said that the policy should mandate that States be involved with plan 
development, and that states approve all conservation efforts.
    Response 46: It is outside the scope of PECE to establish standards 
to determine who participates in the development of conservation 
efforts and at what level. In many cases, states play a crucial role in 
the conservation of species. For formalized conservation efforts to be 
effective, it is logical for the states to play an integral role. To 
that end, we highly encourage state participation to help ensure the 
conservation of the species, but we do not believe that states should 
be mandated to participate in the development of all conservation 
plans. In some cases, states may not have the resources to participate 
in these plans, and in other situations, individuals or non-state 
entities may have the ability to develop an effective and well-
implemented plan that does not require state participation, but that 
contributes to the conservation of a species. Through our listing 
process, we will work with state conservation agencies, and, if the 
listing decision involves a public comment period, states have a formal 
opportunity to comment on any conservation efforts being considered in 
the listing decision.
    Issue 47: Several comments were made regarding the feedback 
mechanisms to correct a party's (ies') inadequate or ineffective 
implementation of a conservation effort. It was suggested that the 
Services specify clearly, and based on scientific information, those 
factors which the Services believe indicate that a conservation effort 
is either not being implemented or not being effective. Comments also 
suggested that party(ies) be given reasonable time (e.g., 90-120 days) 
to respond to the Service's findings by either implementing actions, 
achieving objectives, or providing information to respond to the 
Services.
    Response 47: PECE is not a regulatory approval process, and 
establishing a formal feedback mechanism between the Services and 
participants is not within the scope of PECE. The final determination 
whether to list a species under the Act will rest solely upon whether 
or not the species under consideration meets the definition of 
threatened or endangered as specified by the Act, which will include 
consideration of whether formalized

[[Page 15110]]

conservation efforts that meet PECE criteria have enhanced the status 
of the species. We will provide guidance to improve conservation 
efforts when possible, but we cannot delay listing decisions in order 
to participate in a corrective review process when the best scientific 
and commercial data indicate that a species meets the definition of 
threatened or endangered.
    Issue 48: One commenter requested that we clarify how significant 
the conservation agreement must be to the species, and describe the 
anticipated overall impact/importance to the species and the estimated 
extent of the species' overall range that the habitat conservation 
agreement might cover.
    Response 48: PECE does not establish standards for how much or what 
kind of conservation is required to make listing a species under the 
Act unnecessary. We believe that high-quality formalized conservation 
efforts should explain in detail the impact and significance of the 
effort on the target species. However, at the time of our listing 
decision, we will evaluate formalized conservation efforts using PECE 
to determine whether the effort provides certainty of implementation 
and effectiveness and improves the status of the species. Through our 
listing process, we will determine whether or not a species meets the 
definition of threatened or endangered.
    Issue 49: Several commenters wrote that states do not have 
additional resources to be pro-active on candidate conservation 
efforts, and suggested that funding for conservation plans or efforts 
should be provided by the Federal Government.
    Response 49: This comment is outside the scope of the PECE. This 
policy establishes a set of standards for evaluating formalized 
conservation efforts in our listing decisions and does not address 
funding sources to develop and implement these efforts.

Summary of Changes From the Proposed Policy

    We have slightly revised some of the evaluation criteria as written 
in the proposed policy. We made the following changes to reflect 
comments that we received during the public comment period. We added 
the word ``legal'' to criterion A.2., incorporated additional language 
(``the commitment to proceed with the conservation effort is 
described.''), and separated this criterion into two criteria (A.2. and 
A.3.). We revised criterion A.3. (formerly part of A.2.) to recognize 
that parties cannot commit to completing some legal procedural 
requirements (e.g. National Environmental Policy Act) since some 
procedural requirements preclude commitment to a proposed action before 
the procedures are actually completed. We changed criterion A.5. 
(formerly A.4.) by adding ``type'' and ``(e.g., number of landowners 
allowing entry to their land, or number of participants agreeing to 
change timber management practices and acreage involved)'' and by 
replacing ``why'' with ``how'' and ``are expected to'' with ``will.'' 
We deleted the word ``all'' at the beginning of criterion A.6. as we 
felt it was redundant. We added ``(including incremental completion 
dates)'' to criterion A.8. (formerly A.7.). To criterion B.1. we added 
``and how the conservation effort reduces the threats is described.''
    Also in the proposed policy we stated that 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. We have 
clarified this in the final policy to state that we will monitor the 
status of the effort, including the progress of implementation of the 
formalized conservation effort.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant policy and was reviewed by the Office of Management and 
Budget (OMB) in accordance with the four criteria discussed below.
    (a) This policy will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. The policy for the 
evaluation of conservation efforts when making listing decisions does 
not pertain to commercial products or activities or anything traded in 
the marketplace.
    (b) This policy is not expected to create inconsistencies with 
other agencies' actions. FWS and NMFS are responsible for carrying out 
the Act.
    (c) This policy is not expected to significantly affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients.
    (d) OMB has determined that this policy may raise novel legal or 
policy issues and, as a result, this action has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our determination.
    We have examined this policy's potential effects on small entities 
as required by the Regulatory Flexibility Act and have determined that 
this action will not have a significant economic impact on a 
substantial number of small entities since the policy will not result 
in any significant additional expenditures by entities that develop 
formalized conservation efforts. The criteria in this policy describe 
how we will evaluate elements that are already included in conservation 
efforts and do not establish any new implementation burdens. Therefore, 
we believe that no economic effects on States and other entities will 
result from compliance with the criteria in this policy.
    Pursuant to the Regulatory Flexibility Act, at the proposed policy 
stage, we certified to the Small Business Administration that this 
policy would not have a significant economic impact on a substantial 
number of small entities, since we expect that this policy will not 
result in any significant additional expenditures by entities that 
develop formalized conservation efforts. We received no comments 
regarding the economic impacts of this policy on small entities. Thus, 
we certify that this final policy will not have a significant adverse 
impact on a substantial number of small entities and conclude that a 
regulatory flexibility analysis is not necessary.
    We have determined that this policy will not cause (a) any effect 
on the economy of $100 million or more, (b) any increases in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographical regions, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability

[[Page 15111]]

of U.S.-based enterprises to compete with foreign-based enterprises 
(see Economic Analysis below).

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this policy is a significant action under Executive Order 
12866, it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This policy will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. We expect 
that this policy will not result in any significant additional 
expenditures by entities that develop formalized conservation efforts.
    (b) This policy will not produce a Federal mandate on state, local, 
or tribal governments or the private sector of $100 million or greater 
in any year; that is, it is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act. This policy imposes no 
obligations on state, local, or tribal governments (see Economic 
Analysis below).

Takings

    In accordance with Executive Order 12630, this policy does not have 
significant takings implications. While state, local or Tribal 
governments, or private entities 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.

Federalism

    In accordance with Executive Order 13132, this policy does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Commerce 
policy, we requested information from and coordinated development of 
this policy with appropriate resource agencies throughout the United 
States.

Civil Justice Reform

    In accordance with Executive Order 12988, this 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 policy, requirements under section 4 of the Endangered Species Act 
will be clarified to entities that voluntarily develop formalized 
conservation efforts.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This policy contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
Office of Management and Budget (OMB). The FWS has OMB approval for the 
collection under OMB Control Number 1018-0119, which expires on 
December 31, 2005. The NMFS has OMB approval for the collection under 
OMB Control Number 0648-0466, which expires on December 31, 2005. We 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number. Public reporting burden for FWS collections of 
information is estimated to average 2,500 hours for developing one 
agreement with the intent to preclude a listing, 320 hours for annual 
monitoring under one agreement, and 80 hours for one annual report. The 
FWS expects that six agreements with the intent of making listing 
unnecessary will be developed in one year and that four of these will 
be successful in making listing unnecessary, and therefore, the 
entities who develop these four agreements will carry through with 
their monitoring and reporting commitments. Public reporting burden for 
NMFS collections of information is estimated to average 2,500 hours for 
developing one agreement with the intent to preclude a listing, 320 
hours for annual monitoring under one agreement, and 80 hours for one 
annual report. The NMFS expects that two agreements with the intent of 
making listing unnecessary will be developed in one year and that one 
of these will be successful in making listing unnecessary, and 
therefore, the entities who develop this agreement will carry through 
with their monitoring and reporting commitments. These estimates 
include the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to the FWS and NMFS (see ADDRESSES 
section of this policy).

National Environmental Policy Act

    We have analyzed this policy in accordance with the criteria of the 
National Environmental Policy Act (NEPA), the Department of the 
Interior Manual (318 DM 2.2(g) and 6.3(D)), and National Oceanic and 
Atmospheric Administration (NOAA) Administrative Order 216-6. This 
policy does not constitute a major Federal action significantly 
affecting the quality of the human environment. The FWS has determined 
that the issuance of the policy is categorically excluded under the 
Department of the Interior's NEPA procedures in 516 DM 2, Appendix 1 
(1.10) and 516 DM 6, Appendix 1. NOAA has determined that the issuance 
of this policy qualifies for a categorical exclusion as defined by NOAA 
Administrative Order 216-6, Environmental Review Procedure.

ESA Section 7 Consultation

    We have determined that issuance of this policy will not affect 
species listed as threatened or endangered under the Endangered Species 
Act, and, therefore, a section 7 consultation on this 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), E.O. 13175, and the Department of 
Interior's 512 DM 2, this policy does not directly affect Tribal 
resources. The policy may have an indirect effect on Native American 
Tribes as the policy may influence the type and content of conservation 
plans and efforts implemented by Tribes, or other entities. The extent 
of this indirect effect will be determined on a case-by-case basis 
during our evaluation of individual formalized conservation efforts 
when we make a listing decision. Under Secretarial Order 3206, we 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 for the listing decision or formal submissions. 
During the development of conservation plans, we can encourage 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

[[Page 15112]]

careful consideration of the Tribe's concerns, we must clearly state 
the rationale for the recommended final listing decision and explain 
how the decision relates to our trust responsibility. Accordingly:
    (a) We have not yet consulted with the affected Tribe(s). We will 
address this requirement when we evaluate formalized conservation 
efforts that have yet to be implemented or have recently been 
implemented and have yet to show effectiveness at the time we make a 
listing decision.
    (b) We have not yet worked with Tribes on a government-to-
government basis. We will address this requirement when we evaluate 
formalized conservation efforts that have yet to be implemented or have 
recently been implemented but have yet to show effectiveness at the 
time we make a listing decision.
    (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 policy 
on Tribes. This requirement will be addressed with individual 
evaluations of formalized conservation efforts.

Information Quality

    In Accordance with section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Public Law 106-
554), OMB directed Federal agencies to issue and implement guidelines 
to ensure and maximize the quality, objectivity, utility, and integrity 
of Government information disseminated to the public (67 FR 8452). 
Under our Information Quality guidelines, if we use a conservation plan 
or agreement as part of our decision to either list or not list a 
species under the Act, the plan or agreement is considered to be 
disseminated by us and these guidelines apply to the plan or agreement. 
The criteria outlined in this policy are consistent with OMB, 
Department of Commerce, NOAA, and Department of the Interior. FWS 
information quality guidelines. The Department of the Interior's 
guidelines can be found at http://www.doi.gov/ocio/guidelines/515Guides.pdf, and the FWS's guidelines can be found at http://irm.fws.gov/infoguidelines/. The Department of Commerce's guidelines 
can be found at http://www.osec.doc.gov/cio/oipr/iqg.html, and the 
NOAA/NMFS's guidelines can be found at http://www.noaanews.noaa.gov/stories/iq.htm. Under these guidelines, any affected person or 
organization may request from FWS or NMFS, a correction of information 
they believe to be incorrect in the plan or agreement. ``Affected 
persons or organizations'' are those who may use, be benefitted by, or 
be harmed by the disseminated information (i.e., the conservation plan 
or agreement). The process for submitting a request for correction of 
information is found in the respective FWS and NOAA guidelines.

Economic Analysis

    This policy identifies criteria that a formalized conservation 
effort must satisfy to ensure certainty of implementation and 
effectiveness and for us 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. We developed this policy to ensure consistent and adequate 
evaluation of agreements and plans when making listing decisions. The 
policy will also provide guidance to States and other entities on how 
we will evaluate certain formalized conservation efforts during the 
listing process.
    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.
    The criteria in the policy require demonstrating certainty of 
implementation and effectiveness of formalized conservation efforts. We 
have always considered the certainty of implementation and 
effectiveness of conservation efforts when making listing decisions. 
Therefore, we believe that no economic effects on states and other 
entities will result from using the criteria in this policy as 
guidance.
    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 guide states and other entities in developing 
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.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

Policy for Evaluation of Conservation Efforts When Making Listing 
Decisions

Policy Purpose

    The Fish and Wildlife Service and National Marine Fisheries Service 
developed this policy 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. This 
policy may also guide the development of conservation efforts that 
sufficiently improve a species' status so as to make listing the 
species as threatened or endangered unnecessary.

Definitions

    ``Adaptive management'' is a method for examining alternative 
strategies for meeting measurable biological goals and objectives, and 
then, if necessary, adjusting future conservation management actions 
according to what is 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

[[Page 15113]]

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. An agreement or plan may contain numerous 
conservation efforts.

Policy Scope

    When making listing decisions, the Services will evaluate whether 
formalized conservation efforts contribute to making it unnecessary to 
list a species, or to list a species as threatened rather than 
endangered. This policy applies to those formalized conservation 
efforts that have not yet been implemented or have been implemented, 
but have not yet demonstrated whether they are effective at the time of 
a listing decision. We will make this evaluation based on the certainty 
of implementing the conservation effort and the certainty that the 
effort will be effective. This policy identifies the criteria we will 
use to help determine the certainty of implementation and 
effectiveness. Listing decisions covered by the policy include findings 
on petitions to list species, and decisions on whether to assign 
candidate status, remove candidate status, issue proposed listing 
rules, and finalize or withdraw proposed listing rules. This policy 
applies to formalized conservation efforts developed with or without a 
specific intent to influence a listing decision and with or without the 
involvement of the Services.
    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; or (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), as reflected in our regulations at 50 CFR 424.11(f), 
require us to take into account any State or local laws, regulations, 
ordinances, programs, or other specific conservation measures that 
either positively or negatively affect a species' status (i.e., 
measures 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--ldquo;the inadequacy of existing regulatory mechanisms''--
indicates that overall we might find existing regulatory mechanisms 
adequate to justify a determination not to list a species.
    Factor (E) in section 4(a)(1) (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 of the Act requires us to consider the 
conservation efforts of not only State and foreign governments but also 
of Federal agencies, Tribal governments, businesses, organizations, or 
individuals that positively affect the species' status.
    While 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 often formalized in conservation agreements, 
conservation plans, management plans, or similar documents. The 
development and implementation of such agreements and plans has been an 
effective mechanism for conserving declining species and has, 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, a listing decision must be made before all 
formalized conservation efforts have been implemented or before an 
effort has demonstrated effectiveness. We may determine that a 
formalized conservation effort that has not yet been implemented has 
reduced or removed a threat to a species when we have sufficient 
certainty that the effort will be implemented and will be effective.
    Determining whether a species meets the definition of threatened or 
endangered requires us to analyze a species' risk of extinction. 
Central to this risk analysis is an assessment of the status of the 
species (i.e., is it in decline or at risk of decline and at what rate 
is the decline or risk of decline) and consideration of the likelihood 
that current or future conditions or actions will promote (see section 
4(b)(1)(A)) or threaten a species' persistence. This determination 
requires us to make a prediction about the future persistence of a 
species, including consideration of both future negative and positive 
effects of anticipated human actions. The language of the Act supports 
this approach. The definitions for both ``endangered species'' and 
``threatened species'' connote future condition, 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. The 
first factor in section 4(a)(1)--``the present or threatened 
destruction, modification, or curtailment of [the species'] habitat or 
range''--identifies how analysis of 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 
are necessary to assess a species' status. However, future Federal, 
State, local, or private actions that affect a species are not limited 
to actions that will affect a species' habitat or range. Congress did 
not intend for us to consider future actions affecting a species' 
habitat or range, yet ignore future actions that will influence 
overutilization, disease, predation,

[[Page 15114]]

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 affect a species' 
status and sufficiently certain future actions--either positive or 
negative--that affect a species' status. As part of our assessment of 
future conditions, we will determine whether a formalized conservation 
effort that has yet to be implemented or has recently been implemented 
but has yet to show effectiveness provides a high level of certainty 
that the effort will be implemented and/or effective and results in the 
elimination or adequate reduction of the threats.
    For example, if a state recently designed and approved a program to 
eliminate collection of a reptile being considered for listing, we must 
assess how this program affects the status of the species. Since the 
program was just designed, an implementation and effectiveness record 
may not yet exist. Therefore, we must evaluate the likelihood, or 
certainty, that it will be implemented and effective, using evidence 
such as the State's ability to enforce new regulations, educate the 
public, monitor compliance, and monitor the effects of the program on 
the species. Consequently, 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.
    In another 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. Since the state has already implemented the program, 
the state does not need to provide certainty that it will be 
implemented. If the program was only recently implemented and no record 
of the effects of the program on the species' status existed, we would 
evaluate the effectiveness of this voluntary program at the time of our 
listing decision. To assess the effectiveness, we would evaluate the 
level of participation (e.g., number of participating landowners or 
number of stream-miles fenced), the length of time of the commitment by 
landowners, and whether the program reduces the threats 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.
    In addition, we will consider the estimated length of time that it 
will take for a formalized conservation effort to produce a positive 
effect on the species. In some cases, the nature, severity, and/or 
imminence of threats to a species may be such that a formalized 
conservation effort cannot be expected to produce results quickly 
enough to make listing unnecessary since we must determine at the time 
of the listing decision that the conservation effort has improved the 
status of the species.
    Federal agencies, Tribal governments, state and local 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 and advisable for the 
conservation of a threatened species, or for a recovery plan, and could 
lead to earlier recovery and delisting.
    This policy provides us guidance for evaluating the certainty of 
implementation and effectiveness of formalized conservation efforts. 
This policy is not intended to provide guidance for determining the 
specific level of conservation (e.g., number of populations or 
individuals) or the types of conservation efforts (e.g., habitat 
restoration, local regulatory mechanisms) specifically needed to make 
listing particular species unnecessary and does not provide guidance 
for determining when parties should enter into agreements. We do 
encourage early coordination in conservation measures to prevent the 
species from meeting the definition of endangered or threatened.
    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 track the status of the 
effort including the progress of implementation and effectiveness of 
the conservation effort. If any of the following occurs: (1) a failure 
to implement the conservation effort in accordance with the 
implementation schedule; (2) a failure to achieve objectives; (3) a 
failure to modify the conservation effort to adequately address an 
increase in the severity of a threat or to address other new 
information on threats; or (4) we receive any other new information 
indicating a possible change in the status of the species, then 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. In some 
cases, even if the parties fully implement all of the conservation 
efforts outlined in a particular agreement or plan, we may still need 
to list the species. For example, this may occur if conservation 
efforts only cover a portion of a species' range where the species 
needed to be conserved, or a particular threat to a species was not 
anticipated or addressed at all, or not adequately addressed, in the 
agreement or plan.

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 
forming a basis for not listing a species, or for listing a species as 
threatened rather than endangered, we must evaluate whether the 
conservation effort improves the status of the species under the Act. 
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) for those efforts that have not yet demonstrated 
effectiveness, 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 and use the following criteria to direct our analysis.

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 legal authority of the party(ies) to the 
agreement or plan to implement the formalized conservation effort, and 
the commitment to proceed with the conservation effort are described.3. 
The legal procedural requirements (e.g. environmental review) necessary 
to implement the effort are described, and information is provided 
indicating that fulfillment of these requirements does

[[Page 15115]]

not preclude commitment to the effort. 4. Authorizations (e.g., 
permits, landowner permission) necessary to implement the conservation 
effort are identified, and a high level of certainty is provided that 
the party(ies) to the agreement or plan that will implement the effort 
will obtain these authorizations. 5. The type and level of voluntary 
participation (e.g., number of landowners allowing entry to their land, 
or number of participants agreeing to change timber management 
practices and acreage involved) necessary to implement the conservation 
effort is identified, and a high level of certainty is provided that 
the party(ies) to the agreement or plan that will implement the 
conservation effort will obtain that level of voluntary participation 
(e.g., an explanation of how incentives to be provided will result in 
the necessary level of voluntary participation). 6. Regulatory 
mechanisms (e.g., laws, regulations, ordinances) necessary to implement 
the conservation effort are in place. 7. A high level of certainty is 
provided that the party(ies) to the agreement or plan that will 
implement the conservation effort will obtain the necessary funding. 8. 
An implementation schedule (including incremental completion dates) for 
the conservation effort is provided. 9. 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, and how the conservation effort 
reduces the threats is described. 2. Explicit incremental objectives 
for the conservation effort and dates for achieving them are stated. 3. 
The steps necessary to implement the conservation effort are identified 
in detail. 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 effort-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.
    To consider that a formalized conservation effort(s) contributes to 
forming a basis for not listing a species or listing a species as 
threatened rather than endangered, we must find that the conservation 
effort is sufficiently certain to be implemented and effective so as to 
have contributed 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. 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. Regardless of the adoption of a 
conservation agreement or plan, however, if the best available 
scientific and commercial data indicate that the species meets the 
definition of ``endangered species'' or ``threatened species'' on the 
day of the listing decision, then we must proceed with appropriate 
rule-making activity under section 4 of the Act.

    Dated: September 16, 2002.
Steve Williams,
Director, Fish and Wildlife Service.

    December 23, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
[FR Doc. 03-7364 Filed 3-27-03; 8:45 am]
BILLING CODES 4310-55-S and 3510-22-S