[Federal Register Volume 79, Number 140 (Tuesday, July 22, 2014)]
[Notices]
[Pages 42525-42532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17022]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R9-ES-2011-0099; FF09E40000 145 FXES11150900000]
RIN 1018-AY29


Policy Regarding Voluntary Prelisting Conservation Actions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Announcement of draft policy and solicitation of public 
comment.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a draft 
policy on crediting voluntary conservation actions taken for species 
prior to their listing under the Endangered Species Act. The proposed 
policy seeks to give landowners, government agencies, and others 
incentives to carry out voluntary conservation actions for nonlisted 
species by allowing the benefits to the species from a voluntary 
conservation action undertaken prior to listing under the Act to be 
used--either by the person who undertook such action or by a third 
party--to mitigate or to serve as a compensatory measure for the 
detrimental effects of another action undertaken after listing. This 
policy will help us further our efforts to protect native species and 
conserve the ecosystems on which they depend.

DATES: 
    General Comments: We will accept comments from all interested 
parties until September 22, 2014. Please note that if you are using the 
Federal eRulemaking Portal (see ADDRESSES below), the deadline for 
submitting an electronic comment is 11:59 p.m. Eastern Standard Time on 
this date.
    Comments on the Information Collections Aspects of this Proposal: 
Comments on the information collection aspects of the proposed policy 
will be considered if received by August 21, 2014.

ADDRESSES:
    General Comments: You may submit comments by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the Search box enter the Docket number for the proposed policy, which 
is FWS-R9-ES-2011-0099. You may enter a comment by clicking on 
``Comment Now!''. Please ensure that you have found the correct 
document before submitting your comment.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: Docket No. FWS-R9-ES-2011-0099; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, PDM-
2042; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Request for Information below for more information).
    Comments on the Information Collection Aspects of this Proposal: 
Send comments specific to the information collection aspects of this 
proposed policy to Desk Officer for the Department of the Interior at 
OMB--OIRA at (202) 395-5806 (fax) or [email protected] 
(email). Please provide a copy of your comments to the Service 
Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 22203 
(mail), or [email protected] (email).

FOR FURTHER INFORMATION CONTACT: Jim Serfis, U.S. Fish and Wildlife 
Service, Branch of Communication and Candidate Conservation, 4401 N 
Fairfax Drive, Suite 420, Arlington, VA 22203, telephone 703/358-2171; 
facsimile 703/358-1735.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Fish and Wildlife Service (Service or FWS) is charged with 
implementing the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.) (Act); the goal of the Act is to provide a means to 
conserve the ecosystems upon which listed species depend and a program 
for listed species conservation. Through its Candidate Conservation 
program, the Service encourages the public to take conservation actions 
for species prior to them being listed under the Act. Doing so may 
result in precluding the need to list a species, may result in listing 
a

[[Page 42526]]

species as threatened instead of endangered, or, if a species becomes 
listed, may provide the basis for its recovery and eventual removal 
from the protections of the Act. As explained below, the proposed 
policy provides incentives to the public to implement these prelisting 
conservation actions.
    Recognizing that species benefit from focused conservation actions 
taken to address threats to their survival, the Service encourages 
landowners to conserve candidate and other at-risk species by 
stabilizing and increasing populations so that the species may not need 
listing. In March 2012, the Service published in the Federal Register 
an advance notice of proposed rulemaking inviting the public to 
identify potential changes to our regulations under the Act (77 FR 
15354, March 15, 2012). Our goal was to create additional incentives 
and improve or expand existing ones for landowners and others to invest 
in early voluntary conservation actions to benefit species that may 
become listed as threatened or endangered species. Because we received 
a request from the Association of Fish and Wildlife Agencies to extend 
the comment period, we published a notice in the Federal Register 
extending the comment period an additional 60 days (77 FR 28347, May 
14, 2012).
    The comments and recommendations in the 95 responses the Service 
received in response to the advance notice of proposed rulemaking 
supported the tenet that, if the need to list a species under the Act 
can be avoided, everyone, including the species, benefits. The 
responses also underscored the need for incentives for individuals and 
agencies, both Federal and State, to invest in conservation actions for 
species prior to listing. The comments and recommendations made by the 
individuals, organizations, and agencies covered an array of issues 
such as the need for guidance on developing crediting programs, 
updating the Service's mitigation policy, the need for conservation 
strategies to guide candidate conservation agreements, streamlining the 
conservation agreement process, and improving conservation banking. The 
comments are available at http://www.regulations.gov in Docket No. FWS-
R9-ES-2011-0099.
    The proposed policy described herein is based on recommendations 
generated by the advance notice of proposed rulemaking. The Service 
will address other recommendations through additional regulations, 
policies, or guidance.
    Introduction: Incentivizing voluntary conservation action prior to 
listing. The proposed policy has two stated purposes, as set forth in 
section 1. The first, and more general of these, is to incentivize 
voluntary conservation actions on behalf of species before they reach 
the point at which they need to be listed as threatened or endangered 
under the Act. Such voluntary conservation actions, if carried out at a 
sufficient scale, could contribute to precluding the need to list the 
species. The proposed policy seeks to reward those who voluntarily 
undertake to help the species when they have no legal obligation to do 
so. As described in more detail later, the reward is that the benefits 
to the species from a voluntary conservation action undertaken prior to 
listing can be used--either by the person who undertook that action or 
by a third party--to mitigate or be a compensatory measure for the 
detrimental effects of another action undertaken after listing. In this 
policy, the credit earned by undertaking a prelisting conservation 
action can be transferred to a third party if the prelisting 
conservation action and the credit are for the same species and within 
the same State.
    Clarifying existing regulations at 50 CFR 402.14(g)(8). A second, 
more narrow, purpose of the proposed policy is to clarify a provision 
that has been in the regulations that implement section 7 of the Act 
since 1986, but that received little explanation then or thereafter. 
That provision, set forth in 50 CFR 402.14(g)(8), states that the 
Service ``will give appropriate consideration to any beneficial actions 
taken by the Federal agency or applicant, including any actions taken 
prior to the initiation of consultation'' during the course of 
consultation under section 7(a)(2) of the Act or ``early consultation'' 
under section 7(a)(3). The proposed policy makes clear that beneficial 
actions ``taken prior to the initiation of consultation'' include 
actions taken prior to listing, provided they meet the policy's 
definition of a ``voluntary prelisting action.'' In addition to 
clarifying that prelisting beneficial actions are among the actions to 
be given ``appropriate consideration,'' the policy also clarifies how 
the Service will give appropriate consideration to those beneficial 
actions that are subject to the policy. Specifically, in the course of 
section 7 consultations, the Service will consider the beneficial 
effects of a voluntary prelisting conservation action to be included as 
part of the environmental baseline for the agency action if requested 
by the action agency or, in the case of an agency action involving a 
permit applicant, by such applicant.
    The policy also makes clear that the Service will evaluate the 
conservation value of a prelisting conservation action based on its 
inclusion and priority in a conservation strategy for the species. A 
conservation strategy is a foundational document that should guide all 
conservation efforts for at-risk nonlisted species, including Federal, 
State, Tribal, and private conservation actions. A strategy can be 
authored by any one of these entities, but ideally it will be created 
as a joint effort. Coordinated efforts will likely result in better 
conservation outcomes for the species and efficiencies in implementing 
and monitoring conservation actions. From the Service's perspective, 
the primary goal of the strategy is to provide the necessary 
information to guide management of a species so that it does not need 
the protections of the Act.
    How voluntary prelisting conservation actions are to be treated. 
Section 2 of the policy sets forth in general terms how the Service 
will treat voluntary prelisting conservation actions. Two possibilities 
are described. First, such an action can be treated as a mitigation or 
a compensatory measure to offset the impacts of the incidental taking 
of a listed species for which a permit is sought under Section 
10(a)(1)(B) of the Act. Alternatively, where a proposed action that 
detrimentally affects a listed species is authorized, funded, or 
carried out by a Federal agency, the voluntary prelisting conservation 
action can be treated as a compensatory measure for the proposed 
action. Section 7 of the Act, unlike Section 10(a)(1)(B), does not 
explicitly require that detrimental impacts be mitigated, but it is 
long-established practice under section 7 that Federal agencies or 
their permit applicants can incorporate mitigating measures into their 
proposed projects so as to reduce their overall impact. The proposed 
policy makes clear that voluntary prelisting conservation measures can 
be used in this manner.
    Section 2 of the proposed policy also establishes that a voluntary 
prelisting conservation action undertaken by anyone, including a 
Federal agency, can be treated as described in the policy if the action 
is undertaken in a State that chooses to participate. Thus, unlike some 
other incentive-based policies (e.g., the Safe Harbor Agreements policy 
(64 FR 32717, June 17, 1999) and the Candidate Conservation Agreements 
with Assurances (CCAA) policy (64 FR 32726, June 17, 1999)) that apply 
only to non-Federal property owners, the proposed policy applies to 
anyone or any entity who wants to take advantage of it and who 
undertakes the prelisting

[[Page 42527]]

conservation action in a participating State.
    Defining voluntary prelisting conservation actions. Section 3 of 
the proposed policy defines ``voluntary prelisting conservation 
actions.'' The definition has three key components. First, the action 
has to be undertaken before the species it is intended to benefit is 
listed under the Act. An action can be undertaken at any time prior to 
listing, including after the species has been proposed for listing. 
Once a species is listed, however, no new voluntary prelisting 
conservation actions can occur for the species, but ongoing actions 
initiated prior to listing would continue. The policy also specifies 
that actions taken prior to the policy being finalized will not be 
considered. Second, the action must be truly voluntary, one that is not 
required by the Act or by any other Federal, State, or local regulatory 
mechanism.
    Acknowledging the jurisdiction of the States over nonlisted 
species, the last component requires the action be undertaken as part 
of a State-administered program. In short, the proposed policy 
contemplates the active engagement of the States in designing and 
implementing a program to encourage voluntary prelisting conservation 
actions, as further described in section 4 of the proposed policy. The 
policy also makes it clear that States can use Federal funds in 
accordance with Section 6 of the Act to measure, monitor, and provide 
oversight to ensure the successful implementation and maintenance of 
the voluntary pre-listing conservation actions as they relate to 
candidate species. The States may contract with a third party to 
fulfill the measuring, monitoring, and oversight obligations that are 
necessary to ensure the successful implementation and maintenance of 
the voluntary prelisting conservation actions.
    Relationship to CCAAs and similar agreements. Although CCAAs and 
voluntary prelisting conservation actions covered by the proposed 
policy serve the same purpose, conservation of nonlisted species before 
they become listed, they employ different mechanisms, have different 
approval requirements, and have other important differences.
    First, CCAAs and voluntary prelisting conservation actions employ 
different mechanisms for achieving a conservation benefit to the 
species. A CCAA is intended to provide a property owner (non-Federal) 
with an assurance that, if the species covered by the CCAA is later 
listed as threatened or endangered, no new restrictions or conservation 
obligations will be imposed on the property owner for that species. In 
contrast, the purpose of the proposed policy's treatment of a voluntary 
prelisting conservation action is to give a property owner (Federal or 
non-Federal) the opportunity to have that action serve as mitigation or 
a compensatory measure for the detrimental impact of an action 
undertaken after the species is listed as endangered or threatened.
    Second, CCAAs are subject to more exacting approval requirements. 
To qualify for a CCAA, a non-Federal property owner must commit to 
carry out conservation measures that, assuming other necessary property 
owners were to carry out commensurate conservation measures, would be 
sufficient to preclude the need to list a species. In contrast, to be 
treated as a voluntary prelisting conservation action under the 
proposed policy, an action need only be beneficial to a particular 
species; the policy requires no specific magnitude of benefit.
    While it is possible for a voluntary prelisting conservation action 
to satisfy the requirements of both the CCAA policy and this proposed 
policy, the action cannot be treated under both policies: Using a 
conservation action as mitigation or a compensatory measure against a 
future detrimental action is inconsistent with the intent of the CCAA 
policy to secure durable conservation commitments that would constitute 
a particular property owner's necessary contributions to precluding the 
need to list a species.
    Role of the States. The role of the States under the proposed 
policy, should they choose to participate, is addressed in greater 
detail in section 4. This section of the proposed policy aims to ensure 
the primacy of the States in conserving species before they are listed, 
while ensuring an effective partnership with the Service so that 
voluntary prelisting conservation actions will be recognized by the 
Service in the event that the species is later listed. An important 
role of the States is to ensure that voluntary prelisting conservation 
actions are effectively implemented and maintained. The primary 
tracking and oversight is to be done by the States who will then 
annually provide information on the conservation actions to the 
Service. In short, to avail themselves of the postlisting opportunity 
provided by the proposed policy, persons planning to undertake 
voluntary prelisting conservation actions must do so within the 
framework of a State- or multi-State-approved program; the most recent 
version of a State Wildlife Action Plan or other State conservation 
strategies should provide useful guidance as to both the type and the 
location of conservation actions that would be most beneficial for 
particular species.
    Some States may have their own laws or regulatory authorities 
(separate from the Act) under which they can impose mitigation 
requirements for certain activities. If that is the case, and a person 
who undertakes a voluntary prelisting conservation action is allowed by 
the State to treat the benefits of that action as fulfilling the 
mitigation requirements of State law, the individual cannot 
subsequently use the same action as mitigation for a separate activity 
carried out after listing. That is, if used prior to listing to meet 
the mitigation requirements of State law, the benefits of prelisting 
conservation actions cannot be used again as mitigation for separate 
actions carried out later. Use of prelisting conservation to meet State 
mitigation requirements should be reflected in the register maintained 
by a State so as to prevent such double counting.
    Role of the Fish and Wildlife Service. The role of the Service is 
addressed in section 5 of the proposed policy. This section explains 
that the Service will assist the State(s), as needed, in tracking the 
implementation and maintenance of the prelisting conservation actions. 
While States have the primary role in managing species that are not 
listed under the Act, they may not have the necessary resources to 
fully track the prelisting conservation actions. Consequently, the 
Service will assist the States, as needed, to help achieve the mutual 
goal of conserving species before they need to be listed under the Act. 
Additionally, the Service will coordinate between the State(s) and 
other Federal agencies to help develop conservation actions and assist 
in tracking the implementation and maintenance of those actions.
    Quantifying beneficial and detrimental impacts. Providing credit 
for an effort to mitigate or serve as a compensatory measure for the 
impacts of a detrimental action on a species (or any other resource) 
requires measuring both the detrimental impact and the offsetting 
benefit to be secured through a mitigation action or compensatory 
measure. Section 6 of the proposed policy provides that, in evaluating 
the impacts of both detrimental actions and beneficial actions, the 
Service will use the same criteria, standards, and metrics to quantify 
the former as it uses to quantify the latter. However, over time, new 
scientific information may indicate that the metric may need revision 
or a new metric should be used. The Service

[[Page 42528]]

will work with the landowner to decide if the metric needs to be 
changed. In cases where failure to utilize a new or revised metric 
would appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild, the Service will require a new or 
improved metric as appropriate and will alert the landowner. The 
proposed policy does not itself specify what those uniform criteria, 
standards, or metrics should be or even how they should be developed. 
Instead, those will need to be developed separately and are likely to 
vary from species to species or situation to situation. However, the 
benefit of a voluntary prelisting conservation action for which credit 
is given must be greater than the detriment from the action for which 
the credit is used, that is, the benefit from the prelisting action, 
combined with the detriment from a later action, must result in a 
positive assistance to the recovery of the species. This would be 
achieved by setting aside a specific percentage of the credits to gain 
a positive assistance to the recovery of the species. The specific 
percentage will depend on the species and the nature of the actions. In 
addition, a voluntary prelisting conservation action can be 
supplemented with an additional postlisting conservation action so that 
the combined benefit of prelisting and postlisting conservation actions 
is greater than the detriment from the postlisting detrimental actions.
    Preferential use of voluntary prelisting conservation actions to 
offset the impacts of post-listing activities. Since the purpose of the 
proposed policy is to incentivize voluntary prelisting conservation 
actions by allowing the benefits of such actions to serve as mitigation 
or a compensatory measure for the detriments of postlisting actions, 
that purpose would clearly be undercut if the Service were routinely to 
require some other form of mitigation or compensatory measure for 
actions that it consults on or authorizes after listing. Put 
differently, those who invest in prelisting conservation actions under 
the proposed policy are likely to want a reasonable assurance that, 
when the Service evaluates the mitigation or compensatory measure needs 
for postlisting activities, we will give consideration to those 
already-established mitigation or compensatory measures. This scenario 
does not require that in all cases the Service must use prelisting 
conservation actions as mitigation or a compensatory measure for post-
listing detrimental actions. Where there is a mitigation or 
compensatory measure alternative that clearly produces a better, or 
more certain, environmental outcome, the Service can require or 
encourage its use. Likewise, if the proponent of a postlisting action 
can achieve a commensurate environmental outcome with less effort, 
cost, and time expended, the proposed policy allows such proponent the 
flexibility to make that choice.
    Effect of using voluntary prelisting conservation actions to offset 
the impact of post-listing activities. As previously noted, section 4 
of the proposed policy makes clear that, if a State treats the benefits 
of a prelisting conservation action as meeting State mitigation 
requirements for actions carried out prior to listing, the use of those 
benefits precludes their later reuse. In a parallel fashion, section 7 
of the proposed policy provides that, after listing, once the Service 
allows the benefits of a prelisting conservation action to serve as 
mitigation or a compensatory measure for the impacts of a postlisting 
action, those same benefits may not be used again to offset the impacts 
of other later postlisting actions.

Proposed Policy Regarding Voluntary Prelisting Conservation Actions

    Section 1. Purpose: The purpose of this policy is to incentivize 
voluntary conservation efforts on behalf of species before they are 
listed as endangered or threatened species under the Endangered Species 
Act (``Act''), and to clarify the manner in which the Service ``will 
give appropriate consideration to any beneficial actions taken by the 
Federal agency or applicant, including any actions taken prior to the 
initiation of consultation'' under section 7(a)(2) or 7(a)(3) of the 
Act, as provided in 50 CFR 402.14(g)(8).
    Section 2. Treatment of Voluntary Prelisting Conservation Actions. 
If requested to do so by the person or Federal, State, Tribe, or local 
government agency that undertakes a qualifying voluntary prelisting 
conservation action, or by a third party to whom the credits have been 
transferred, the Service will treat the action as (1) a measure to 
minimize and mitigate the impact of the taking of an endangered or 
threatened species pursuant to section 10(a)(1)(B) of the Act, or (2) 
an intended compensatory measure of a proposed Federal agency action 
subject to the consultation requirements of section 7(a)(2) or 7(a)(3) 
of the Act. Specifically, in the course of section 7 consultations, the 
Service will consider the beneficial effects of voluntary prelisting 
conservation actions to be included as part of the environmental 
baseline for the action under consideration if requested by the action 
agency or, in the case of an agency action involving a permit 
application, by such applicant. The Service's determination of the 
effects of the action being considered under these two sections of the 
Act will reflect the conservation value of the voluntary prelisting 
action based on priority actions identified in a conservation strategy 
for the species. The credits earned by undertaking a prelisting 
conservation action may be transferred to a third party but must be 
used for the same species and within the same State where the credit 
was earned.
    Section 3. Definition of Voluntary Prelisting Conservation Actions. 
As used in this policy, the term ``voluntary prelisting conservation 
action'' refers to any conservation measure undertaken to benefit a 
nonlisted species of plant or wildlife as described below, including 
but not limited to, the acquisition or transfer of ownership of land or 
water or interests therein for conservation purposes; the restraint or 
relinquishment of the lawful use of a particular resource negatively 
affecting such species; the establishment, restoration, enhancement, or 
commitment to continue management of habitat for such species; and the 
cooperation either in the introduction of such species into a portion 
of its historical range where it is absent or in the augmentation of 
such species in an area where it occurs. The benefit of the voluntary 
prelisting conservation action for which credit is given must be 
greater than the detriment of the action for which the credit is used, 
that is the benefit from the prelisting action combined with the 
detriment of a the postlisting action must result in positive 
assistance to the recovery of the species. In addition, a voluntary 
prelisting conservation action can be supplemented with an additional 
postlisting conservation action so that the combined benefit of 
prelisting and postlisting conservation actions is greater than the 
detriment from the postlisting detrimental action.
    A voluntary prelisting conservation action must be:
    (1) Beneficial to a species that is, or may become, a candidate or 
proposed for listing as threatened or endangered,
    (2) Started prior to the final listing of the benefitted species as 
an endangered or threatened species under the Act, and after the date 
this policy is finalized. The actions may be part of an already 
established conservation program, plan, or strategy or be included in 
such a program, plan, or strategy that has been developed after the 
date this policy is finalized.

[[Page 42529]]

    (3) Not required by any Federal, State, or local law, regulation, 
permit, or other regulatory mechanism.
    (4) Undertaken as part of a State- or multi-State-administered 
program, including the most recent version of a State Wildlife Action 
Plan or other State conservation strategy that is intended to encourage 
voluntary conservation measures for the species.
    Section 6 funds may be used to measure, monitor, and oversee the 
implementation of the pre-listing conservation actions as they relate 
to candidate species.
    Section 4. Role of the States. A State choosing to participate in 
the voluntary prelisting conservation actions crediting system 
established by the proposed policy must maintain a register of all 
voluntary prelisting conservation actions undertaken pursuant to a 
State or multi-State-administered program as described above and for 
which the property owners have requested treatment under the proposed 
policy, and must record any transfer to a third party of the mitigation 
or compensatory measure rights associated with such actions. The State 
will provide appropriate oversight to ensure the effective 
implementation and maintenance of voluntary prelisting conservation 
actions and provide a mechanism to notify the Service of each voluntary 
prelisting conservation action. Such actions could be based on or found 
in the most recent version of its State Wildlife Action Plans or other 
State conservation strategy for the species and could be performed by a 
third party, including a Federal agency. If a State- or multi-State-
administered program allows voluntary prelisting conservation actions 
to serve as mitigation or a compensatory measure for the environmental 
impacts of activities regulated by the State and undertaken prior to 
the listing of a species as an endangered or threatened species, the 
State will reflect the use of such voluntary prelisting conservation 
actions for such purposes in its register, and, to the extent so used, 
such voluntary prelisting conservation actions will no longer be 
available for treatment as provided in this policy.
    Section 5. Role of the Fish and Wildlife Service. The Service, when 
requested, will assist the State, to the extent its resources allow, 
with the measuring, monitoring, and oversight functions described in 
section 4. The Service will coordinate between the State and other 
Federal agencies to help develop conservation actions and oversee 
implementation of actions taken by other Federal agencies to ensure 
effectiveness and maintenance of those actions. The Service will review 
any voluntary prelisting conservation program for consistency with this 
policy and the other mitigation policies and guidelines established by 
the Service.
    Section 6. Evaluating the Impacts of Voluntary Prelisting 
Conservation Actions. In treating any voluntary prelisting conservation 
action as a measure to minimize and mitigate the impact of the taking 
of any endangered or threatened species pursuant to Section 10(a)(1)(B) 
of the Act, or as an intended part of any proposed Federal action 
subject to the consultation requirements of section 7(a)(2) or 7(a)(3) 
of the Act, the Service will evaluate the beneficial impacts of such 
action according to the same criteria, standards, and metrics that it 
uses to evaluate the beneficial impacts of other mitigating or 
compensatory measures and the detrimental impacts of activities that 
give rise to mitigating or compensatory measures. However, over time, 
new scientific information may indicate that the metric may need 
revision or a new metric should be used. The Service will work with the 
landowner to advise them of the need for a change. In cases where 
failure to utilize a new or revised metric would appreciably reduce the 
likelihood of survival and recovery of the affected species in the 
wild, the Service will require a new or improved metric as appropriate 
and will alert the landowner. Species-specific metrics will be 
developed to facilitate the evaluation of the prelisting conservation 
actions and the detrimental actions. The benefit of a voluntary 
prelisting conservation action for which credit is given must be 
greater than the detriment from the action for which the credit is 
used, that is, the benefit from the prelisting action, combined with 
the detriment from a later action, must result in a positive assistance 
to the recovery of the species. The positive assistance to the recovery 
of the species will be achieved by setting aside a specific percentage 
of the credits. The specific percentage will depend on the species and 
the nature of the actions.
    Section 7. Effect of Treating a Voluntary Prelisting Conservation 
Action as a Mitigating or Compensatory Measure. To the extent that a 
voluntary prelisting conservation action is treated by the Service as a 
measure to minimize or mitigate any future impact of the taking of an 
endangered or threatened species pursuant to section 10(a)(1)(B) of the 
Act, or as an intended compensatory measure of a Federal agency action 
subject to the consultation requirements of section 7(a)(2) or 7(a)(3) 
of the Act, such action may not be used again.

Request for Information

    We intend that a final policy will consider information and 
recommendations from all interested parties. We, therefore, solicit 
comments, information, and recommendations from governmental agencies, 
Indian Tribes, the scientific community, industry groups, environmental 
interest groups, and any other interested parties. All comments and 
materials received by the date listed above in DATES will be considered 
prior to the approval of a final document.
    In addition to more general comments and information, we ask that 
you comment on the following specific aspects of the policy:
    (1) The policy requires an overall positive assistance to the 
species; how should we define this benefit?
    (2) The policy requires that a prelisting conservation action be 
part of a State plan. What approach should we take if there is no State 
plan for the species?
    (3) For those species for which the State does not have the 
authority or jurisdiction, should we revise the policy to allow 
prelisting conservation actions for these species to receive credit? If 
so, how would these prelisting conservation actions be tracked and 
monitored?
    (4) How should we quantify the value of the voluntary prelisting 
conservation actions and credits?
    (5) Based on the species and the nature of the actions, how should 
we determine the percentage set aside?
    (6) The policy allows for the transfer of credits. How could we 
develop an uncomplicated trading system mechanism?
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.

Required Determinations

    As mentioned above, we intend to apply this policy, when finalized, 
in considering prelisting voluntary conservation efforts. Below we 
discuss compliance with several Executive Orders and statutes as they 
pertain to this draft policy.

[[Page 42530]]

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this policy is 
not a significant rule.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that our regulatory system must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this policy in a manner 
consistent with these requirements.

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

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., 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 effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    This draft policy sets forth the Service's policy regarding the 
consideration of voluntary prelisting conservation actions through 
Section 7 of the Act should a species be listed. A full description of 
the action, why it is being considered, and the legal basis for this 
action are set forth earlier in this document. The policy will provide 
an incentive to Federal, State, or local government agencies, Indian 
Tribes, nongovernmental organizations, or private individuals to take 
voluntary conservation actions for species before they are listed under 
the Act.
    The Service, States, local government agencies, Indian Tribes, 
nongovernmental organizations, or private landowners are the entities 
that are affected by this draft policy. However, the effect is very 
limited; if they so choose, each entity would only need to report, to 
the State, limited information on any voluntary conservation action 
they took and wished to receive credit under this policy. Therefore, 
for the reasons described above, this draft policy would not have a 
significant economic impact on a substantial number of small entities.

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) On the basis of information contained in the ``Regulatory 
Flexibility Act'' section above, this draft policy would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this policy would not impose a cost of $100 million 
or more in any given year on local or State governments or private 
entities. As explained above, small governments could potentially be 
affected because the draft policy could place additional requirements 
on any city, county, or other local municipalities. However, the 
requirement, which is to collect minimal information on any prelisting 
conservation actions they voluntarily choose to implement and report to 
their State wildlife agency, would only result in a minimal effect.
    (b) This draft policy would 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 could 
impose only minimal obligations on local or tribal governments and as 
well as on State governments if they choose to participate. As such, a 
Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630, this draft policy would 
not have significant takings implications. This draft policy would not 
pertain to ``taking'' of private property interests, nor would it 
directly affect private property. A takings implication assessment is 
not required because this draft policy (1) would not effectively compel 
a property owner to suffer a physical invasion of property and (2) 
would not deny all economically beneficial or productive use of the 
land or aquatic resources. This draft policy would substantially 
advance a legitimate government interest (establish a policy through 
which the Service would consider voluntary prelisting conservation 
actions through Section 7 of the Act should a species become listed) 
and would not present a barrier to all reasonable and expected 
beneficial use of private property.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this draft 
policy does not have significant Federalism effects and a Federalism 
assessment is not required. This draft policy pertains only to the 
Service's treatment of voluntary prelisting conservation actions should 
the species become listed under the Act, and would not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. A State that 
chooses to participate under the policy must monitor prelisting 
conservation actions. Since States have an existing mechanism to 
conduct the monitoring for other purposes, the proposed policy does not 
create a new requirement.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
this draft policy would not unduly burden the judicial system and meets 
the requirements of sections 3(a) and 3(b)(2) of the Order. The 
establishment of a policy for the Service to consider voluntary 
prelisting conservation actions in the context of Section 7 of the Act 
should the species be listed should not significantly affect or burden 
the judicial system.

Paperwork Reduction Act of 1995

    This proposed policy contains a collection of information that we 
have submitted to OMB for review and approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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.
    OMB Control No.: 1018-NEW.

[[Page 42531]]

    Title: Voluntary Prelisting Conservation Actions.
    Service Form Number(s): None.
    Description of Respondents: Individuals; businesses and 
organizations; and State, tribal and local governments.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: Ongoing for recordkeeping and annually for 
reporting.

----------------------------------------------------------------------------------------------------------------
                                           Number of       Number of       Completion time per     Total annual
               Activity                   respondents      responses            response           burden hours
----------------------------------------------------------------------------------------------------------------
Report Information to States:
    Individuals.......................              20              20  15 minutes..............               5
    Private Sector....................             280             280  15 minutes..............              70
    Government........................             100             100  15 minutes..............              25
States Collect and Report Information               10              10  20 hours................             200
 to the Service.
                                       -------------------------------------------------------------------------
        Totals........................             410             410  ........................             300
----------------------------------------------------------------------------------------------------------------

    We will collect the following information:
     Description of the prelisting conservation action being 
taken.
     Location of the action (does not include a specific 
address).
     Name of the entity taking the action and their contact 
information (email address only).
     Frequency of the action (ongoing for X years, or one-time 
implementation) and an indication if the action is included in a State 
Wildlife Action Plan.
     Any transfer to a third party of the mitigation or 
compensatory measure rights.
    We estimate that 10 States will choose to participate. Each State 
will collect information from landowners, businesses and organizations, 
and tribal and local governments that wish to receive credit for 
voluntary prelisting conservation actions. States may collect this 
information via an Access database, Excel spreadsheet, or other 
database of their choosing and submit the information to the Fish and 
Wildlife Service (via email) annually. We will use this information to 
calculate the amount of credits that the entity taking the conservation 
action will receive. We will keep track of the credits and notify the 
entity of how much credit they have earned. The entity can then use 
these credits to mitigate or offset the detrimental effects of other 
actions they take after the species is listed (assuming it is listed).
    As part of our continuing efforts to reduce paperwork and 
respondent burdens, we invite the public and other Federal agencies to 
comment on any aspect of the reporting burden associated with this 
proposed information collection. We specifically invite comments 
concerning:
     Whether or not the collection of information is necessary 
for the proper implementation of the proposed Prelisting Conservation 
Actions policy, including whether or not the information will have 
practical utility;
     The accuracy of our estimate of the burden for this 
collection of information;
     Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
     Ways to minimize the burden of the collection of 
information on respondents.
    If you wish to comment on the information collection requirements 
of this proposed policy, send your comments directly to OMB (see 
detailed instructions under the heading Comments on the Information 
Collection Aspects of this Proposal in the ADDRESSES section). Please 
identify your comments with 1018-AY29. Please provide a copy of your 
comments to the Service Information Collection Clearance Officer (see 
detailed instructions under the heading Comments on the Information 
Collection Aspects of this Proposal in the ADDRESSES section).

National Environmental Policy Act (NEPA)

    We have analyzed the proposed policy in accordance with the 
criteria of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(c)), the Council on Environmental Quality's Regulations for 
Implementing the Procedural Provisions of NEPA (40 CFR 1500-1508), and 
the Department of the Interior's NEPA procedures (516 DM 2 and 8; 43 
CFR part 46).
    We have determined that the proposed policy is categorically 
excluded from NEPA documentation requirements consistent with 40 CFR 
1508.4 and 43 CFR 46.210(i). This categorical exclusion applies to 
policies, directives, regulations, and guidelines that are ``of an 
administrative, financial, legal, technical, or procedural nature.'' 
This action does not trigger an extraordinary circumstance, as outlined 
in 43 CFR 46.215, applicable to the categorical exclusion. Therefore, 
the proposed policy does not constitute a major Federal action 
significantly affecting the quality of the human environment.

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), Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior Manual at 512 DM 2, we have considered possible effects on 
federally recognized Indian tribes and have preliminarily determined 
that there are no potential adverse effects of issuing this draft 
policy. Our intent with the draft policy is to provide a consistent 
approach to the consideration of voluntary prelisting conservation 
actions, including those taken on Tribal lands. We will continue to 
work with Tribes as we finalize this draft policy.

Energy Supply, Distribution, or Use

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. The draft policy, if made final, 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.

Clarity of the Draft Policy

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule or policy we publish must:
    a. Be logically organized;

[[Page 42532]]

    b. Use the active voice to address readers directly;
    c. Use clear language rather than jargon;
    d. Be divided into short sections and sentences; and
    e. Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise this draft policy, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

Authors

    The primary authors of the draft policy are staff members of the 
Ecological Services Program, Branch of Communications and Candidate 
Conservation, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Arlington, VA 22203.

Authority

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

    Dated: May 8, 2014.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-17022 Filed 7-21-14; 8:45 am]
BILLING CODE 4310-55-P