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

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Information about this document as published in the Federal Register.

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AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of document availability.

SUMMARY:

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 The Service seeks public comment on this draft guidance document.

DATES:

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

ADDRESSES:

Persons wishing to review the Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Start Printed Page 37171Survival Permit Processing may obtain a copy by contacting the Division of Conservation and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203 (telephone (703) 358-2105), and may be viewed at: http://endangered.fws.gov/​candidates/​ccaahandbook.html. Written comments and materials regarding the draft guidance should be directed to the same address. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

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FOR FURTHER INFORMATION CONTACT:

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

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SUPPLEMENTARY INFORMATION:

Background

The Candidate Conservation Agreements with Assurances Policy, dated June 17, 1999 (64 FR 32726), is intended to facilitate the conservation of species proposed for listing under the Endangered Species Act (Act), species that are candidates for listing, and species that become candidates, by giving non-Federal property owners incentives to implement conservation measures for declining or at-risk species. The incentives available through Candidate Conservation Agreements with Assurances involve the Service providing property owners certainty that no further land, water, or resource use restrictions beyond those agreed to in the Candidate Conservation Agreement with Assurances will be imposed if the species later becomes listed under the Act. If the species does become listed, the property owner is authorized, through an enhancement of survival permit that is issued in association with the Candidate Conservation Agreement with Assurances, to take the covered species as long as the level of take is consistent with the level identified and agreed upon in the Agreement. Before entering into a Candidate Conservation Agreement with Assurances, however, the Service must determine that the benefits of the conservation measures to be implemented, when combined with the benefits that would be achieved if it is assumed that conservation measures were also to be implemented on other necessary properties, would preclude or remove any need to list the covered species. “Other necessary properties” are other properties on which conservation measures would have to be implemented in order to preclude or remove any need to list the covered species. These assurances will be provided in the property owner's Candidate Conservation Agreement with Assurances and in an associated enhancement of survival permit issued under section (10)(a)(1)(A) of the Act.

The purpose of the Candidate Conservation Agreements with Assurances Program is to facilitate the conservation of proposed and candidate species, and species that may become candidates. Much of the property containing our nation's fish and wildlife and their habitat is owned by private citizens, States, local governments, Native American Tribal governments, conservation organizations, and other non-Federal entities. The future of many of these declining species is dependent upon conservation efforts on these non-Federal lands, but conservation efforts for these species will be most effective and efficient when initiated early in a species' decline. Early conservation efforts can, in some cases, preclude or remove any need to list species as threatened or endangered under the Act. By preventing or removing the need to list a species through early conservation efforts, property owners can maintain land use flexibility. Specifically, initiating or expanding conservation efforts before a species and its habitat are critically imperiled increases the probability that simpler and less expensive conservation options will be available and that conservation of the species will more likely be successful.

This draft handbook provides consistent procedures and policies for the Service's compliance with the enhancement of survival permit provisions of section 10(a)(1)(A) of the Act. Consistency in the section 10(a)(1)(A) program will be achieved by (1) providing national procedural and policy guidance; (2) providing standardized guidance to our offices and personnel who participate in the Candidate Conservation Agreements with Assurances program and review and process enhancement of survival permit applications; (3) ensuring uniform Service compliance with section 10(a)(1)(A) of the Act associated with a Candidate Conservation Agreement with Assurances; (4) providing assistance to applicants in the non-Federal sector who wish to apply for enhancement of survival permits; and (5) providing for conservation of federally proposed, candidate, and other at-risk species.

Public Comments Solicited

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

Authority

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

Required Determinations

Regulatory Planning and Review

This Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Survival Permitting Process will not have an annual economic effect of $100 million or more, or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required.

a. The purpose of the draft handbook is to clarify concepts previously discussed in the CCAA Policy and is intended as guidance for the Service and applicants to use with the existing CCAA and enhancement of survival permitting process. Any economic effects associated with enhancement of survival permits and the CCAAs under which they are issued would be attributable as effects of the Agreements under section 10(a)(1)(A) of the ESA. We are issuing the guidance to assist applicants with filing adequate CCAAs under section 10(a)(1)(A) and would not expect to generate economic effects. Further, this notice concerns a handbook being issued for education purposes which is expected to assist applicants by promoting a better understanding of application requirements. As such, the Government expects a positive effect on the environment because the guidance improves the CCAA development and enhancement of survival permitting processes by addressing the various concepts associated with these processes.

As of December 2002, the Service has issued 5 enhancement of survival permits, and approximately 30 CCAAs are currently under development. Any economic effects associated with the 30 CCAAs under current review would be attributable to the implementation of the CCAA policy itself and not to this Start Printed Page 37172guidance. As such, there are no economic effects on commodity prices, competition, or jobs until approval and implementation of specific CCAAs, and then the impact would be due to the individual CCAA. Similarly, no effect on public health and safety is expected from this draft handbook.

The burden of time spent on filling out the application for a CCAA depends on the complexity of the Agreement. The Service does not have an estimate of time spent on an average CCAA. However, it is reasonable to expect that the time cost of filling out as many as 30 applications per year (assuming the current number of CCAAs under review is indicative of an annual number of applications) is relatively small and certainly below the $100 million threshold for a major rule. In accordance with the criteria in Executive Order 12866, this draft handbook is not significant and, therefore, not subject to Office of Management and Budget review.

b. This draft handbook will not create inconsistencies with other agencies' actions. This handbook is expected to increase consistency within the Fish and Wildlife Service. Additionally, the CCAA permit process under section 10 of the ESA does not apply to Federal agency actions.

c. This draft handbook will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients, not does it apply to them.

d. This draft handbook will not raise novel legal or policy issues. This handbook provides internal guidance for and clarifies the CCAA process.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Department does not expect any significant effects on non-Federal cooperators exercising their option to enter into the CCAA program because the CCAA process will not require additional information.

The current holders of the 5 enhancement of survival permits, as well as the 30 applications pending, are made up of State and county governments, companies, and private individuals. We assume that many would qualify as small entities under the Regulatory Flexibility Act. The economic impact of the draft CCAA handbook would be a benefit to these entities. The guidance provided is expected to reduce the time spent developing the CCAA and therefore reduce the time before implementation of the CCAA. Therefore, this draft handbook would have a positive effect on entities. If all of the 5 current permits were held by small entities and the additional 30 under current review were also from small entities, the combined total would not comprise a significant proportion of the number of State/county governments, small businesses, and private landowners in the United States who would all be potential applicants for CCAAs. Therefore, this draft handbook would not have a significant economic effect on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.):

a. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this draft handbook will not impose a cost of $100 million or more in any given year on local or State governments or private entities. No additional information will be required from a non-Federal entity solely as a result of this handbook. Since the draft handbook is to be implemented with existing data, no incremental costs are being imposed on non-Federal landowners.

b. This draft handbook will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings

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

Federalism

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

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Section 7 Consultation

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

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations Start Printed Page 37173with Native American Tribal Governments” (59 FR 22951) and 512 DM 2:

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

a. We have not yet consulted with the affected tribe(s). This will be addressed with individual CCAAs.

b. We have not yet treated tribes on a government-to-government basis. This will be addressed with individual CCAAs.

c. We will consider tribal views in the development of individual CCAAs.

d. We have not yet consulted with the appropriate bureaus and offices of the Department about the identified effects of this draft handbook on Indian tribes. This will be addressed with individual CCAAs.

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Dated: March 20, 2003.

Steve Williams,

Director, Fish and Wildlife Service.

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[FR Doc. 03-15697 Filed 6-20-03; 8:45 am]

BILLING CODE 4310-55-P