[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95053-95056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31060]



[[Page 95053]]

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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), revise 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 added the term 
``net conservation benefit'' to the Candidate Conservation Agreements 
with Assurances regulations, and eliminated 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 also made these 
changes to the Candidate Conservation Agreement with Assurances policy 
in a separate document published in today's Federal Register.

DATES: This rule is effective on January 26, 2017.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov at Docket Number FWS-HQ-ES-2015-0171. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, are also available at the same location on 
the Internet.

FOR FURTHER INFORMATION CONTACT: Jeff Newman, Chief, Division of 
Recovery and Restoration, U.S. Fish and Wildlife Service Headquarters, 
MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703-
358-2171.

SUPPLEMENTARY INFORMATION: 

Background

    Through its Candidate Conservation Program, one of the FWS's goals 
is to encourage the public to voluntarily develop and implement 
conservation plans for declining species prior to them being listed 
under the ESA (16 U.S.C. 1531 et seq.). The benefits of such 
conservation actions may contribute to not needing to list a species, 
to list a species as threatened instead of endangered, or to accelerate 
the species' recovery if it is listed. The FWS put in place a voluntary 
conservation program to provide incentives for non-Federal property 
owners to develop and implement conservation plans for unlisted 
species: 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 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, on May 4, 2016 (81 FR 26769), we proposed to change the 
regulations that clarify the level of conservation effort each 
agreement needs to include in order for FWS to approve an agreement and 
issue a permit. In addition to the clarification of the CCAA 
regulations, we also sought to better align the CCAA regulations with 
the Safe Harbor Agreement (SHA) regulations. Safe Harbor Agreements are 
a conservation tool for non-federal property owners that aid in 
recovery of listed species that are similar to CCAAs in that they also 
require a net conservation benefit. On May 4, 2016, we also published 
in the Federal Register a draft revised CCAA policy (86 FR 26817). We 
accepted public comments on the draft policy and proposed regulations 
until July 5, 2016. The comments we received are available at http://www.regulations.gov under Docket No. FWS-HQ-ES-2015-0171.

Changes From the Proposed Rule

    Based on comments we received on the proposed rule and to further 
clarify the level of conservation effort a CCAA needs to meet, we 
include the following changes in this final rule:
    (1) We revised the issuance criteria at 50 CFR 17.22(d)(2)(ii) and 
17.32(d)(2)(ii) to include language indicating that a CCAA must provide 
a net conservation benefit consistent with the CCAA policy. The 
previous version of the regulations simply referred to compliance with 
the CCAA policy and did not specify that a CCAA must provide a net 
conservation benefit. Our intent is to be more clear and transparent 
about the level of conservation effort required for each CCAA to be 
approved; this change also better aligns the regulations with the CCAA 
policy. In addition, these changes help to accomplish our goal of 
aligning the CCAA regulations with the SHA regulations.
    (2) In the draft regulations, we proposed revisions to the language 
on duration at 50 CFR 17.22(d)(8) and 17.32(d)(8) to include the full 
definition of ``net conservation benefit'' that we also included in the 
draft revised policy that was published in the Federal Register on the 
same date as the proposed regulations. To simplify these final 
regulations, we are not including the definition of net conservation 
benefit but state that the duration of a CCAA must be sufficient to 
provide a net conservation benefit to the covered species. The full 
definition of net conservation benefit is included in the final CCAA 
policy, which is published separately in today's Federal Register. As 
with the above changes to the issuance criteria, these changes to the 
duration section help to accomplish our goal of aligning the CCAA 
regulations with the SHA regulations.
    (3) We have made nonsubstantive editorial changes to the rule 
language at 50 CFR 17.22(d) and 17.32(d) to ensure consistent 
terminology and ease public understanding.

Summary of Comments and Recommendations

    On May 4, 2016, we published a document in the Federal Register (81 
FR 26769) that requested written comments and information from the 
public on the proposed revisions to the

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CCAA regulations. In that same Federal Register, we also published 
draft revisions to the CCAA policy (86 FR 26817). Since the majority of 
comments we received pertained to the draft policy, we have summarized 
the comments on both the proposed regulations and policy in the final 
policy document, which is published separately in today's Federal 
Register.

Purpose of Changes to Regulations at 50 CFR 17.22 and 17.32

    We revised the CCAA regulations at 50 CFR 17.22(d) and 17.32(d) 
consistent with the 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 original policy and regulations from 1999, to approve a 
CCAA we had to ``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.'' This language had led some property owners to believe that 
the FWS expected each individual CCAA to provide enough conservation 
benefits to the species to remove any need to list the species. This 
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 addition to clarifying the CCAA standard, through 
these changes we are also better aligning the CCAA regulations with the 
SHA regulations, as discussed above.
    In concert with the revisions to our CCAA policy, published 
elsewhere in today's Federal Register, these changes to the regulations 
will help reassure landowners participating in CCAAs that additional 
conservation measures above and beyond those contained in the CCAA will 
not be required, and that additional land, water, or resource use 
restrictions will not be imposed upon them should a species that 
resides on their property become listed in the future.

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 rule is consistent with E.O. 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 this rule will 
not have a significant economic effect on a substantial number of small 
entities.
    The rule revises the regulations governing issuance of an 
enhancement-of-survival permit in conjunction with a CCAA to clarify--
but 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 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 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 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 rule would not place additional 
requirements on any city, county, or other local municipalities.
    (b) This 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 rule is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule imposes no 
obligations on State, local, or tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule would not have 
significant takings implications. This

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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 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 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 rule would have significant Federalism effects and have 
determined that a federalism summary impact statement is not required. 
This 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 rule does not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 
12988. This 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 determined that 
there are no potential adverse effects of issuing this 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 implement this rule.

National Environmental Policy Act

    We analyzed the 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 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 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 rule 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.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby amend part 17, subchapter B of chapter I, 
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 as follows:
0
a. In paragraph (d)(1), introductory text, at the end of the heading, 
add ``(CCAAs)'' before the period and, in the second full sentence, 
remove ``Candidate Conservation Agreement with Assurances'' and add in 
its place ``CCAA'';
0
b. In paragraphs (d)(1)(iii) and (d)(2)(i), remove ``Candidate 
Conservation Agreement'' and add in its place ``CCAA'';
0
c. Revise paragraph (d)(2)(ii) to read as set forth below;
0
d. In paragraphs (d)(2)(iv) through (vi), (d)(3)(i) and (iii), and 
(d)(4), remove ``Candidate Conservation Agreement'' each time it 
appears and add in their place ``CCAA'';
0
e. In paragraph (d)(5), introductory text, and paragraph (d)(6), remove 
``Candidate Conservation with Assurances Agreement'' each time it 
appears and add in their place ``CCAA''; and
0
f. Revise paragraph (d)(8) to read as set forth below:


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

* * * * *
    (d) * * *
    (2) * * *
    (ii) The implementation of the terms of the CCAA is reasonably 
expected to provide a net conservation benefit to the affected covered 
species by contributing to the conservation of the species included in 
the permit, and the CCAA otherwise complies with the Candidate 
Conservation Agreement with Assurances policy available from the 
Service;
* * * * *
    (8) Duration. The duration of a CCAA covered by a permit issued 
under this paragraph (d) must be sufficient to achieve a net 
conservation benefit to the species covered by the permit and the 
Agreement and otherwise comply with the Candidate Conservation 
Agreement with Assurances policy available from the Service.
* * * * *

0
3. Amend Sec.  17.32 as follows:
0
a. In paragraph (d)(1), introductory text, at the end of the heading, 
add ``(CCAAs)'' before the period and, in the second full sentence, 
remove ``Candidate Conservation Agreement with Assurances'' and add in 
its place ``CCAA'';
0
b. In paragraphs (d)(1)(iii) and (d)(2)(i), remove ``Candidate 
Conservation Agreement'' and add in its place ``CCAA'';
0
c. Revise paragraph (d)(2)(ii) to read as set forth below;
0
d. In paragraphs (d)(2)(iv) through (vi), (d)(3)(i) and (iii), and 
(d)(4), remove ``Candidate Conservation Agreement'' each time it 
appears and add in their place ``CCAA'';
0
e. In paragraph (d)(5), introductory text, and paragraph (d)(6), remove 
``Candidate Conservation with Assurances Agreement'' each time it

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appears and add in their place ``CCAA''; and
0
f. Revise paragraph (d)(8) to read as set forth below:


Sec.  17.32   Permits--general.

* * * * *
    (d) * * *
    (2) * * *
    (ii) The implementation of the terms of the CCAA is reasonably 
expected to provide a net conservation benefit to the affected covered 
species by contributing to the conservation of the species included in 
the permit, and the CCAA otherwise complies with the Candidate 
Conservation Agreement with Assurances policy available from the 
Service;
* * * * *
    (8) Duration. The duration of a CCAA covered by a permit issued 
under this paragraph (d) must be sufficient to achieve a net 
conservation benefit to the species covered by the permit and the 
Agreement and otherwise comply with the Candidate Conservation 
Agreement with Assurances policy available from the Service.

    Dated: December 20, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-31060 Filed 12-23-16; 8:45 am]
 BILLING CODE 4333-15-P