[Federal Register Volume 81, Number 86 (Wednesday, May 4, 2016)]
[Proposed Rules]
[Pages 26769-26772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10483]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2015-0171; FF09E40000 167 FXES11150900000]
RIN 1018-BB25


Endangered and Threatened Wildlife and Plants; Revisions to the 
Regulations for Candidate Conservation Agreements With Assurances

AGENCY: U.S. Fish and Wildlife Service (FWS), Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), propose changes 
to the regulations concerning enhancement of survival permits issued 
under the Endangered Species Act of 1973, as amended (ESA), associated 
with Candidate Conservation Agreements with Assurances. We propose to 
add the term ``net conservation benefit'' to the Candidate Conservation 
Agreements with Assurances regulations, and to eliminate references to 
``other necessary properties'' to clarify the level of conservation 
effort we require each agreement to include in order for us to approve 
a Candidate Conservation Agreement with Assurances. We are also 
proposing these changes to the Candidate Conservation Agreement with 
Assurances policy in a separate document published in today's Federal 
Register.

DATES: We will accept comments that we receive on or before July 5, 
2016. Comments submitted electronically using the Federal eRulemaking 
Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern 
Time on the closing date.

ADDRESSES: You may submit comments by one of the following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Search box, enter the docket number 
for this proposed rule, which is FWS-HQ-ES-2015-0171. Then click on the 
Search button. In the Search panel on the left side of the screen, 
under the Document Type heading, click on the Proposed Rules link to 
locate this document. You may submit a comment by clicking on ``Comment 
Now!'' Please ensure that you have found the correct document before 
submitting your comment.
     By hard copy: Submit by U.S. mail or hand delivery to: 
Public Comments Processing, Attn: Docket No. FWS-HQ-ES-2015-0171, U.S. 
Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, 
VA 22041-3803.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Request for Information section, below, for more 
information).

FOR FURTHER INFORMATION CONTACT: Jim Serfis, Chief, Branch of 
Conservation and Communications, U.S. Fish and Wildlife Service 
Headquarters, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803; 
telephone 703-358-2171. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Through its Candidate Conservation program, one of the FWS's goals 
is to encourage the public to take specific conservation actions for 
declining species prior to them being listed under the ESA (16 U.S.C. 
1531 et seq.). The cumulative outcome of such conservation actions may 
result in not needing to list a species; or may result in listing a 
species as threatened instead of endangered, and provide the basis for 
the species' recovery and eventual removal from the Federal List of 
Endangered and Threatened Wildlife. The Service put in place a 
voluntary conservation program for non-Federal property owners to help 
accomplish this goal: Candidate Conservation Agreements with Assurances 
(CCAAs). On June 17, 1999, the policy for this type of agreement (64 FR 
32726) and implementing regulations in part 17 of title 50 of the Code 
of Federal Regulations (CFR) (64 FR 32706) were made final. On May 3, 
2004, we published a final rule (69 FR 24084) to revise the CCAA 
regulations to make

[[Page 26770]]

them easier to understand and implement by, among other things, 
defining ``property owner'' and by clarifying several points, including 
the transfer of permits, permit revocation, and advanced notification 
of take.
    To participate in a CCAA, non-Federal property owners agree to 
implement specific conservation actions on their land that reduce or 
eliminate threats to the species that are covered under the agreement. 
An ESA section 10(a)(1)(A) Enhancement of Survival permit is issued to 
the agreement participant providing a specific level of incidental take 
coverage should the property owner's agreed-upon conservation actions 
and routine property management actions (e.g., agricultural, ranching, 
or forestry activities) result in take of the covered species if 
listed. Property owners receive assurances that they will not be 
required to undertake any conservation actions other than those agreed 
to if new information indicates that additional or revised conservation 
measures are needed for the species, and they will not be subject to 
additional resource use or land use restrictions.
    Based on our experience reviewing and approving CCAAs over the past 
16 years, we are proposing changes to the regulations that will clarify 
the level of conservation effort each agreement needs to include in 
order for FWS to approve an agreement and issue a permit.

Purpose of Proposed Changes to Current Regulations at 50 CFR 17.22 and 
17.32

    We are proposing changes to the CCAA regulations at 50 CFR 17.22(d) 
and 17.32(d) consistent with the proposed revisions to the CCAA policy 
published separately in today's Federal Register. The regulation 
changes are to (1) include the term ``net conservation benefit'' to 
clarify the level of conservation effort that is necessary in order to 
issue a permit associated with a CCAA and (2) eliminate references to 
``other necessary properties.''
    Under the current policy and regulations, to approve a CCAA we must 
``determine that the benefits of the conservation measures implemented 
by a property owner under a CCAA, when combined with those 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.'' The confusion created by 
the hypothetical concept of conservation measures needing to be 
implemented on ``other necessary properties'' is why we are clarifying 
and revising the CCAA standard to require a net conservation benefit to 
the covered species specifically on the property to be enrolled and 
eliminating references to ``other necessary properties.''
    In concert with the proposed revisions to our CCAAs policy, 
published elsewhere in today's Federal Register, these changes to the 
regulations would help reassure landowners participating in CCAAs that 
additional conservation measures above and beyond those contained in 
the CCAA would not be required, and that additional land, water, or 
resource use restrictions would not be imposed upon them should a 
species that resides on their property become listed in the future.

Request for Information

    Any final rule based on this proposal will consider information and 
recommendations submitted in a timely manner from all interested 
parties. We solicit comments, information, and recommendations from 
governmental agencies, Native American tribes, the scientific 
community, industry groups, environmental interest groups, and any 
other interested parties on this proposed rule. All comments and 
materials we receive by the date listed in DATES, above, will be 
considered prior to the approval of a final rule.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. 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 personal identifying 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.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
http://www.regulations.gov, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service Headquarters (see FOR 
FURTHER INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Management and 
Budget's Office of Information and Regulatory Affairs will review all 
significant rules. The Office of Information and Regulatory Affairs has 
determined that this rule is not significant.
    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 regulations 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 rule in a manner consistent 
with these requirements. This proposed rule is consistent with 
Executive Order 13563, and in particular with the requirement of 
retrospective analysis of existing rules, designed ``to make the 
agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal 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). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his or her designee, 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 a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities. We certify that, if adopted as 
proposed, this proposed rule would not have a significant economic 
effect on a substantial number of small entities.
    The proposed rule would revise the regulations governing issuance 
of an enhancement of survival permit in conjunction with a CCAA to 
clarify but

[[Page 26771]]

not change current practice and does not place any new requirements on 
any non-Federal property owner that may seek to apply for approval of a 
CCAA.

Paperwork Reduction Act of 1995 (PRA)

    This proposed rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). This proposed rule 
will not impose new recordkeeping or reporting requirements on State, 
local, or tribal governments; individuals; businesses; or 
organizations. OMB has reviewed and approved the application form that 
property owners use to apply for approval of a CCAA and associated 
enhancement of survival permit (Form 3-200-54) and assigned OMB Control 
Number 1018-0094, which expires January 31, 2017. 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.

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 proposed rule 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 rule would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because the proposed 
rule would not place additional requirements on any city, county, or 
other local municipalities.
    (b) This proposed rule 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, this proposed rule is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. This proposed rule would impose no obligations on State, local, or 
tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule 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 proposed rule (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 proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
endangered and threatened species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule would have significant Federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to approving enhancement of 
survival permits in conjunction with a CCAA under the ESA, 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.

Civil Justice Reform (E.O. 12988)

    This proposed rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This proposed rule would clarify the issuance 
criteria for an enhancement of survival permit associated with a CCAA 
under the ESA.

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, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have considered possible 
effects on federally recognized Indian tribes and have preliminarily 
determined that there are no potential adverse effects of issuing this 
proposed rule. Our intent is to provide clarity in regard to the net 
conservation benefit requirements for a CCAA to be approved, including 
any agreements in which Tribes may choose to participate. We will 
continue to keep our tribal obligations in mind as we finalize this 
proposed rule.

National Environmental Policy Act

    We analyzed the proposed regulations 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) and determined that the proposed regulations are 
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 regulations do not constitute a major Federal 
action significantly affecting the quality of the human environment.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule, if 
made final, is not expected to 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 This Proposed Rule

    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;
    (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 the proposed rule, your comments should be as specific as 
possible. For example, you should tell us the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

[[Page 26772]]

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

    Accordingly, we propose to amend part 17, subchapter A of chapter 
IV, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.22 by revising paragraph (d)(8) to read as follows:


Sec.  17.22  Permits for scientific purposes, enhancement of 
propagation or survival, or for incidental taking.

* * * * *
    (d) * * *
    (8) Duration of the Candidate Conservation Agreement. The duration 
of a Candidate Conservation Agreement covered by a permit issued under 
this paragraph (d) must be sufficient to achieve a net conservation 
benefit, which is defined as the cumulative benefits of specific 
conservation measures designed to improve the status of a covered 
species by removing or minimizing threats, stabilizing populations, and 
increasing its numbers and improving its habitat.
    (i) The benefit would be measured by the projected increase in the 
species' population or improvement of the species' habitat, taking into 
account the duration of the Agreement and any off-setting adverse 
effects attributable to the incidental taking allowed by the 
enhancement of survival permit.
    (ii) The conservation measures and management activities covered by 
the agreement must be designed to reduce or eliminate those current and 
future threats on the property that are under the property owner's 
control, in order to increase the species populations or improve its 
habitat.
    (iii) In the case where the species and habitat is already 
adequately managed to the benefit of the species, a net conservation 
benefit will be achieved when the property owner commits to manage the 
species for a specified period of time with the anticipation that the 
population will increase or habitat quality will improve.
* * * * *
0
3. Amend Sec.  17.32 by revising paragraph (d)(8) to read as follows:


Sec.  17.32  Permits--general.

* * * * *
    (d) * * *
    (8) Duration of the Candidate Conservation Agreement. The duration 
of a Candidate Conservation Agreement covered by a permit issued under 
this paragraph (d) must be sufficient to achieve a net conservation 
benefit, which is defined as the cumulative benefits of specific 
conservation measures designed to improve the status of a covered 
species by removing or minimizing threats, stabilizing populations, and 
increasing its numbers and improving its habitat.
    (i) The benefit would be measured by the projected increase in the 
species' population or improvement of the species' habitat, taking into 
account the duration of the Agreement and any off-setting adverse 
effects attributable to the incidental taking allowed by the 
enhancement of survival permit.
    (ii) The conservation measures and management activities covered by 
the agreement must be designed to reduce or eliminate those current and 
future threats on the property that are under the property owner's 
control, in order to increase the species populations or improve its 
habitat.
    (iii) In the case where the species and habitat is already 
adequately managed to the benefit of the species, a net conservation 
benefit will be achieved when the property owner commits to manage the 
species for a specified period of time with the anticipation that the 
population will increase or habitat quality will improve.

    Dated: April 13, 2016.
Noah Matson,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-10483 Filed 5-3-16; 8:45 am]
 BILLING CODE 4333-15-P