[Federal Register Volume 68, Number 120 (Monday, June 23, 2003)]
[Notices]
[Pages 37170-37173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15697]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Draft Handbook for Candidate Conservation Agreements with 
Assurances and Enhancement of Survival Permit Processing

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of document availability.

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SUMMARY: The Fish and Wildlife Service (Service) announces the 
availability of the Draft Handbook for Candidate Conservation 
Agreements with Assurances and Enhancement of Survival Permit 
Processing. This draft document provides internal guidance for 
conducting the Candidate Conservation Agreement with Assurances permit 
program under section 10(a)(1)(A) of the Endangered Species Act of 
1973, as amended (Act). Its purpose is to provide policy and guidance 
for section 10(a)(1)(A) procedures to promote efficiency and nationwide 
consistency within the Service. The Service seeks public comment on 
this draft guidance document.

DATES: Comments on the Draft Handbook for Candidate Conservation 
Agreements with Assurances and Enhancement of Survival Permit 
Processing must be received on or before August 22, 2003 to be 
considered during preparation of a final guidance document.

ADDRESSES: Persons wishing to review the Draft Handbook for Candidate 
Conservation Agreements with Assurances and Enhancement of

[[Page 37171]]

Survival Permit Processing may obtain a copy by contacting the Division 
of Conservation and Classification, U.S. Fish and Wildlife Service, 
4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203 
(telephone (703) 358-2105), and may be viewed at: http://endangered.fws.gov/candidates/ccaahandbook.html. Written comments and 
materials regarding the draft guidance should be directed to the same 
address. Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, U.S. Fish and Wildlife Service, at the 
above address (703) 358-2105.

SUPPLEMENTARY INFORMATION:

Background

    The Candidate Conservation Agreements with Assurances Policy, dated 
June 17, 1999 (64 FR 32726), is intended to facilitate the conservation 
of species proposed for listing under the Endangered Species Act (Act), 
species that are candidates for listing, and species that become 
candidates, by giving non-Federal property owners incentives to 
implement conservation measures for declining or at-risk species. The 
incentives available through Candidate Conservation Agreements with 
Assurances involve the Service providing property owners certainty that 
no further land, water, or resource use restrictions beyond those 
agreed to in the Candidate Conservation Agreement with Assurances will 
be imposed if the species later becomes listed under the Act. If the 
species does become listed, the property owner is authorized, through 
an enhancement of survival permit that is issued in association with 
the Candidate Conservation Agreement with Assurances, to take the 
covered species as long as the level of take is consistent with the 
level identified and agreed upon in the Agreement. Before entering into 
a Candidate Conservation Agreement with Assurances, however, the 
Service must determine that the benefits of the conservation measures 
to be implemented, when combined with the benefits that would be 
achieved if it is assumed that conservation measures were also to be 
implemented on other necessary properties, would preclude or remove any 
need to list the covered species. ``Other necessary properties'' are 
other properties on which conservation measures would have to be 
implemented in order to preclude or remove any need to list the covered 
species. These assurances will be provided in the property owner's 
Candidate Conservation Agreement with Assurances and in an associated 
enhancement of survival permit issued under section (10)(a)(1)(A) of 
the Act.
    The purpose of the Candidate Conservation Agreements with 
Assurances Program is to facilitate the conservation of proposed and 
candidate species, and species that may become candidates. Much of the 
property containing our nation's fish and wildlife and their habitat is 
owned by private citizens, States, local governments, Native American 
Tribal governments, conservation organizations, and other non-Federal 
entities. The future of many of these declining species is dependent 
upon conservation efforts on these non-Federal lands, but conservation 
efforts for these species will be most effective and efficient when 
initiated early in a species' decline. Early conservation efforts can, 
in some cases, preclude or remove any need to list species as 
threatened or endangered under the Act. By preventing or removing the 
need to list a species through early conservation efforts, property 
owners can maintain land use flexibility. Specifically, initiating or 
expanding conservation efforts before a species and its habitat are 
critically imperiled increases the probability that simpler and less 
expensive conservation options will be available and that conservation 
of the species will more likely be successful.
    This draft handbook provides consistent procedures and policies for 
the Service's compliance with the enhancement of survival permit 
provisions of section 10(a)(1)(A) of the Act. Consistency in the 
section 10(a)(1)(A) program will be achieved by (1) providing national 
procedural and policy guidance; (2) providing standardized guidance to 
our offices and personnel who participate in the Candidate Conservation 
Agreements with Assurances program and review and process enhancement 
of survival permit applications; (3) ensuring uniform Service 
compliance with section 10(a)(1)(A) of the Act associated with a 
Candidate Conservation Agreement with Assurances; (4) providing 
assistance to applicants in the non-Federal sector who wish to apply 
for enhancement of survival permits; and (5) providing for conservation 
of federally proposed, candidate, and other at-risk species.

Public Comments Solicited

    We intend that a final decision on the Draft Handbook for Candidate 
Conservation Agreement with Assurances and Enhancement of Survival 
Permit Processing will take advantage of information and 
recommendations from all interested parties. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this draft document are hereby solicited. All comments and 
materials received will be considered prior to the approval of a final 
document.

Authority

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

Required Determinations

Regulatory Planning and Review

    This Draft Handbook for Candidate Conservation Agreements with 
Assurances and Enhancement of Survival Permitting Process 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. A cost-benefit and economic analysis is not required.
    a. The purpose of the draft handbook is to clarify concepts 
previously discussed in the CCAA Policy and is intended as guidance for 
the Service and applicants to use with the existing CCAA and 
enhancement of survival permitting process. Any economic effects 
associated with enhancement of survival permits and the CCAAs under 
which they are issued would be attributable as effects of the 
Agreements under section 10(a)(1)(A) of the ESA. We are issuing the 
guidance to assist applicants with filing adequate CCAAs under section 
10(a)(1)(A) and would not expect to generate economic effects. Further, 
this notice concerns a handbook being issued for education purposes 
which is expected to assist applicants by promoting a better 
understanding of application requirements. As such, the Government 
expects a positive effect on the environment because the guidance 
improves the CCAA development and enhancement of survival permitting 
processes by addressing the various concepts associated with these 
processes.
    As of December 2002, the Service has issued 5 enhancement of 
survival permits, and approximately 30 CCAAs are currently under 
development. Any economic effects associated with the 30 CCAAs under 
current review would be attributable to the implementation of the CCAA 
policy itself and not to this

[[Page 37172]]

guidance. As such, there are no economic effects on commodity prices, 
competition, or jobs until approval and implementation of specific 
CCAAs, and then the impact would be due to the individual CCAA. 
Similarly, no effect on public health and safety is expected from this 
draft handbook.
    The burden of time spent on filling out the application for a CCAA 
depends on the complexity of the Agreement. The Service does not have 
an estimate of time spent on an average CCAA. However, it is reasonable 
to expect that the time cost of filling out as many as 30 applications 
per year (assuming the current number of CCAAs under review is 
indicative of an annual number of applications) is relatively small and 
certainly below the $100 million threshold for a major rule. In 
accordance with the criteria in Executive Order 12866, this draft 
handbook is not significant and, therefore, not subject to Office of 
Management and Budget review.
    b. This draft handbook will not create inconsistencies with other 
agencies' actions. This handbook is expected to increase consistency 
within the Fish and Wildlife Service. Additionally, the CCAA permit 
process under section 10 of the ESA does not apply to Federal agency 
actions.
    c. This draft handbook will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients, not does it apply to them.
    d. This draft handbook will not raise novel legal or policy issues. 
This handbook provides internal guidance for and clarifies the CCAA 
process.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Department does not expect any significant effects on non-Federal 
cooperators exercising their option to enter into the CCAA program 
because the CCAA process will not require additional information.
    The current holders of the 5 enhancement of survival permits, as 
well as the 30 applications pending, are made up of State and county 
governments, companies, and private individuals. We assume that many 
would qualify as small entities under the Regulatory Flexibility Act. 
The economic impact of the draft CCAA handbook would be a benefit to 
these entities. The guidance provided is expected to reduce the time 
spent developing the CCAA and therefore reduce the time before 
implementation of the CCAA. Therefore, this draft handbook would have a 
positive effect on entities. If all of the 5 current permits were held 
by small entities and the additional 30 under current review were also 
from small entities, the combined total would not comprise a 
significant proportion of the number of State/county governments, small 
businesses, and private landowners in the United States who would all 
be potential applicants for CCAAs. Therefore, this draft handbook would 
not have a significant economic effect on a substantial number of small 
entities.

Small Business Regulatory Enforcement Fairness Act

    This draft handbook is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. As noted above 
under the Regulatory Flexibility Act, the issuance of this draft 
handbook is not expected to have economic effects of $100 million 
annually or to affect a significant number of small entities.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    a. We have determined and certify pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1502 et seq., that this draft handbook will not 
impose a cost of $100 million or more in any given year on local or 
State governments or private entities. No additional information will 
be required from a non-Federal entity solely as a result of this 
handbook. Since the draft handbook is to be implemented with existing 
data, no incremental costs are being imposed on non-Federal landowners.
    b. This draft handbook will not produce a Federal mandate of $100 
million or greater in any year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, the draft handbook does 
not have significant takings implications.

Federalism

    In accordance with Executive Order 13132, the draft handbook does 
not have significant Federalism effects. The draft handbook will not 
have a substantial direct effect on the States, in the relationship 
between the Federal Government and the States, or on the distribution 
of power or responsibilities among the various levels of government. 
Since States have been and will be potential CCAA permit applicants, 
the guidance will improve the CCAA process for States.

Civil Justice Reform

    In accordance with Executive Order 12988, the draft handbook does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. With the guidance provided in 
the draft handbook, requirements under section 10(a)(1)(A) of the ESA 
will be clarified to enhancement of survival permit applicants.

Paperwork Reduction Act

    This handbook does not require an information collection under the 
Paperwork Reduction Act. The Service has examined this handbook under 
the Paperwork Reduction Act of 1995 and found it to contain no requests 
for additional information or increase in the collection requirements 
associated with enhancement of survival permits other than those 
already approved for enhancement of survival permits. Currently we have 
approval from OMB to collect information under OMB control number 1018-
0094. This approval expires July 31, 2004. We may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless we display a currently valid OMB number.

National Environmental Policy Act

    We have analyzed this draft handbook in accordance with the 
criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 
6.3(D). This draft handbook does not constitute a major Federal action 
significantly affecting the quality of the human environment. The 
Service has determined that the issuance of the handbook is 
categorically excluded under the Department of the Interior's NEPA 
procedures in 516 DM 2, Appendix 1.10 and 516 DM 6.6, Appendix 1.4 A 
(1).

Section 7 Consultation

    The Service does not need to complete a section 7 consultation on 
this draft handbook as it is a guidance document and not an action. 
Individual enhancement of survival (CCAA) permits under section 
10(a)(1)(A) of the ESA are actions that may affect a listed species. 
Therefore, an intra-Service consultation is completed prior to issuing 
incidental take permits.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations

[[Page 37173]]

with Native American Tribal Governments'' (59 FR 22951) and 512 DM 2:
    This draft handbook does not directly affect tribal resources. The 
draft handbook contains guidance on public participation in the 
development of CCAAs, including tribes according to Secretarial Order 
3206 on Federal-Tribal trust responsibilities and the 
Endangered Species Act. Therefore, the effect of this guidance on 
Native American Tribes would be determined on a case-by-case basis with 
individual CCAAs. Although the development of a CCAA is the applicant's 
responsibility, we will recommend the inclusion of Native American 
tribes during the development of the CCAA if tribal resources are 
affected. Under Secretarial Order 3206, the Service will, at minimum, 
share with the applicant any information provided by the tribes, 
through the public comment period or formal submissions, and advocate 
the incorporation of measures that will restore or enhance Tribal trust 
resources. In those instances where permit applicants choose not to 
invite affected tribes to participate in those negotiations, the 
Service will consult with the affected tribes to evaluate the effects 
of the proposed CCAA on tribal trust resources and will provide the 
information resulting from such consultation to the CCAA applicant 
prior to the submission of the draft CCAA for public comment. After 
consultation with the tribes and the non-federal landowner and after 
careful consideration of the tribe's concerns, the Service must clearly 
state the rationale for the recommended final decision and explain how 
the decision relates to the Service's trust responsibility. 
Accordingly:
    a. We have not yet consulted with the affected tribe(s). This will 
be addressed with individual CCAAs.
    b. We have not yet treated tribes on a government-to-government 
basis. This will be addressed with individual CCAAs.
    c. We will consider tribal views in the development of individual 
CCAAs.
    d. We have not yet consulted with the appropriate bureaus and 
offices of the Department about the identified effects of this draft 
handbook on Indian tribes. This will be addressed with individual 
CCAAs.

    Dated: March 20, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-15697 Filed 6-20-03; 8:45 am]
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