PECE Policy (68 FR 15100)

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Federal Register / Vol. 68, No. 60 / Friday, March 28, 2003 / Rules and Regulations

preferred the rulemaking petition. The
coordinates for Channel 287C3 at Alamo
are 32–19–29 North Latitude and 82–
43–23 West Longitude. This allotment
has a site restriction of 20.4 kilometers
(12.7 miles) north of Alamo.
DATES: Effective April 28, 2003.
FOR FURTHER INFORMATION CONTACT: R.
Barthen Gorman, Media Bureau, (202)
418–2180.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order, MM Docket No. 01–111,
adopted March 12, 2003, and released
March 14, 2003. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, 445
12th Street, SW., Room CY–A257,
Washington, DC, 20554. The document
may also be purchased from the
Commission’s duplicating contractor,
Qualex International, Portals II, 445
12th Street, SW., Room CY–B402,
Washington, DC, 20554, telephone 202
863–2893. facsimile 202 863–2898, or
via e-mail qualexint@aol.com.
List of Subjects in 47 CFR Part 73
Radio, Radio broadcasting.
■ Part 73 of Title 47 of the Code of Federal Regulations is amended as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for Part 73
reads as follows:

■

Authority: 47 U.S.C. 154, 303, 334 and 336.
§ 73.202

[Amended]

2. Section 73.202(b), the Table of FM
Allotments under Georgia, is amended
by adding Alamo, Channel 287C3.

■

Federal Communications Commission.
John A. Karousos,
Assistant Chief, Audio Division Media
Bureau.
[FR Doc. 03–7470 Filed 3–27–03; 8:45 am]

allots Channel 242C3 at Owen,
Wisconsin, as the community’s first
local FM service. Channel 242C3 can be
allotted to Owen, Wisconsin, in
compliance with the Commission’s
minimum distance separation
requirements with a site restriction of
12.9 km (8.0 miles) northeast of Owen.
The coordinates for Channel 242C3 at
Owen, Wisconsin, are 45–03–08 North
Latitude and 90–29–21 West Longitude.
A filing window for Channel 242C3 at
Owen, WI, will not be opened at this
time. Instead, the issue of opening this
allotment for auction will be addressed
by the Commission in a subsequent
Order.
DATES:

Effective April 28, 2003.

FOR FURTHER INFORMATION CONTACT:
Deborah Dupont, Media Bureau, (202)
418–2180.

This is a
synopsis of the Commission’s Report
and Order, MB Docket No. 02–120,
adopted March 12, 2003, and released
March 14, 2003. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC Information
Center, Portals II, 445 12th Street, SW.,
Room CY–A257, Washington, DC 20554.
The complete text of this decision may
also be purchased from the
Commission’s duplicating contractor,
Qualex International, Portals II, 445
12th Street, SW., Room CY–B402,
Washington, DC, 20554, (202) 863–2893,
facsimile (202) 863–2898, or via e-mail
qualexint@aol.com.

SUPPLEMENTARY INFORMATION:

List of Subjects in 47 CFR Part 73
Radio, Radio broadcasting.
Part 73 of title 47 of the Code of Federal
Regulations is amended as follows:

■

PART 73—RADIO BROADCAST
SERVICES

BILLING CODE 6712–01–P

1. The authority citation for part 73
continues to read as follows:

■

FEDERAL COMMUNICATIONS
COMMISSION

Authority: 47 U.S.C. 154, 303, 334 and 336.

47 CFR Part 73

§ 73.202

[DA 03–629; MB Docket No. 02–120; RM–
10442]

■

Radio Broadcasting Services; Owen,
Wisconsin
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:

SUMMARY: The Audio Division, at the
request of Starboard Broadcasting, Inc.,

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[Amended]

2. Section 73.202(b), the Table of FM
Allotments under Wisconsin, is
amended by adding Owen, Channel
242C3.

Federal Communications Commission.
John A. Karousos,
Assistant Chief, Audio Division, Media
Bureau.
[FR Doc. 03–7472 Filed 3–27–03; 8:45 am]
BILLING CODE 6712–01–P

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Chapter IV
[Docket No. 000214043–2227–02; I.D.
011603A]
RIN 1018–AF55, 0648–XA48

Policy for Evaluation of Conservation
Efforts When Making Listing Decisions
AGENCIES: Fish and Wildlife Service,
Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of final policy.
SUMMARY: We, the Fish and Wildlife
Service (FWS) and the National Marine
Fisheries Service (NMFS) (the Services),
announce a final policy for the
evaluation of conservation efforts when
making listing decisions (PECE) under
the Endangered Species Act of 1973, as
amended (Act). While the Act requires
us to take into account all conservation
efforts being made to protect a species,
the policy identifies criteria we will use
in determining whether formalized
conservation efforts that have yet to be
implemented or to show effectiveness
contribute to making listing a species as
threatened or endangered unnecessary.
The policy applies to conservation
efforts identified in conservation
agreements, conservation plans,
management plans, or similar
documents developed by Federal
agencies, State and local governments,
Tribal governments, businesses,
organizations, and individuals.
DATES: This policy is effective April 28,
2003.
ADDRESSES: Chief, Division of
Conservation and Classification, U.S.
Fish and Wildlife Service, 4401 North
Fairfax Drive, Arlington, VA 22203
(Telephone 703/358–2171, Facsimile
703/358–1735); or Chief, Endangered
Species Division, National Marine
Fisheries Service, Office of Protected
Resources, 1315 East-West Highway,
Silver Spring, MD 20910 (Telephone
301/713–1401, Facsimile 301/713–
0376).
FOR FURTHER INFORMATION CONTACT:
Chris Nolin, Chief, Division of
Conservation and Classification, U.S.
Fish and Wildlife Service at the above
address, telephone 703/358–2171 or
facsimile 703/358–1735, or Margaret
Lorenz, Endangered Species Division,
National Marine Fisheries Service at the

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above address, telephone 301/713–1401
or facsimile 301/713–0376.
SUPPLEMENTARY INFORMATION:
Background
This policy provides direction to
Service personnel in determining how
to consider a conservation agreement
when making a decision on whether a
species warrants listing under the Act.
It also provides information to the
groups interested in developing
agreements or plans that would
contribute to making it unnecessary for
the Services to list a species under the
Act.
On June 13, 2000, we published in the
Federal Register (65 FR 37102) a draft
policy for evaluating conservation
efforts that have not yet been
implemented or have not yet
demonstrated effectiveness when
making listing decisions under the Act.
The policy establishes two basic criteria:
(1) The certainty that the conservation
efforts will be implemented and (2) the
certainty that the efforts will be
effective. The policy provides specific
factors under these two basic criteria
that we will use to direct our analysis
of the conservation effort. At the time of
making listing determinations, we will
evaluate formalized conservation efforts
(i.e., conservation efforts identified in a
conservation agreement, conservation
plan, management plan, or similar
document) to determine if the
conservation effort provides certainty of
implementation and effectiveness and,
thereby, improves the status, as defined
by the Act, of the species such that it
does not meet the Act’s definition of a
threatened or endangered species.
When we evaluate the certainty of
whether the formalized conservation
effort will be implemented, we will
consider the following: Do we have a
high level of certainty that the resources
necessary to carry out the conservation
effort are available? Do the parties to the
conservation effort have the authority to
carry it out? Are the regulatory or
procedural mechanisms in place to
carry out the efforts? And is there a
schedule for completing and evaluating
the efforts? If the conservation effort
relies on voluntary participation, we
will evaluate whether the incentives
that are included in the conservation
effort will ensure the level of
participation necessary to carry out the
conservation effort. We will also
evaluate the certainty that the
conservation effort will be effective. In
making this evaluation, we will
consider the following: Does the effort
describe the nature and extent of the
threats to the species to be addressed
and how these threats are reduced by

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the conservation effort? Does the effort
establish specific conservation
objectives? Does the effort identify the
appropriate steps to reduce threats to
the species? And does the effort include
quantifiable performance measures to
monitor for both compliance and
effectiveness? Overall, we need to be
certain that the formalized conservation
effort improves the status of the species
at the time we make a listing
determination.
This policy is important because it
gives us a consistent set of criteria to
evaluate formalized conservation efforts.
For states and other entities that are
developing agreements or plans, this
policy informs them of the criteria we
will use in evaluating formalized
conservation efforts when making
listing decisions, and thereby guides
States and other entities that wish to
develop formalized conservation efforts
that may contribute to making listing
unnecessary.
In the notice of the draft policy, we
specifically requested comments on the
criteria that we would use to evaluate
the certainty that a formalized
conservation effort will be
implemented. Also, we requested
comments on the timing of the
development of conservation
agreements or plans. We have learned
that timing is the most critical element
when developing a successful
conservation agreement or plan.
Encouraging and facilitating early
development of conservation
agreements or plans is an important
objective of this policy. Last-minute
agreements (i.e., those that are
developed just before or after a species
is proposed for listing) often have little
chance of affecting the outcome of a
listing decision. Once a species is
proposed for listing under the Act, we
may have insufficient time to include
consideration of a newly developed
conservation plan in the public notice
and comment process and still meet our
statutory deadlines. Last-minute efforts
are also less likely to be able to
demonstrate that they will be
implemented and effective in reducing
or removing threats to the species. In
addition, there are circumstances in
which the threats to a species are so
imminent and/or complex that it will be
almost impossible to develop an
agreement or plan that includes
conservation efforts that will result in
making the listing unnecessary.
Accordingly, we encourage the early
development of formalized conservation
efforts before the threats become too
extreme and imminent and when there
is greater flexibility in sufficiently
improving a species’ status to the point

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15101

where listing the species as threatened
or endangered is unnecessary.
Summary of Comments and
Recommendations
In response to our request for
comments on the draft policy, we
received letters from 44 entities. Thirtyfive were in support of the policy and
nine were against. We reviewed all
comments received and have
incorporated accepted suggestions or
clarifications into the final policy text.
Because most of these letters included
similar comments (several were form
letters) we grouped the comments
according to issues. The following is a
summary of the relevant comments and
our responses. We also received
comments that were not relevant to the
policy and, therefore, outside the
policy’s scope. We responded to some of
these comments where doing so would
clarify the process for determining
whether a species is endangered or
threatened (the listing process) or clarify
the nature of conservation plans,
agreements, and efforts.
Policy Scope Issues
Issue 1: Many commenters felt that
this policy should also apply to
downlisting species from endangered to
threatened status and delisting actions,
or else parties to an agreement where
the final decision is to list the species
would not have any incentives to take
action on a listed species until a
recovery plan is developed. In addition,
one commenter suggested that the
policy scope should be expanded to
include the process of designating
critical habitat.
Response 1: We believe that the
immediate need is to develop criteria
that will guide consistent and
predictable evaluation of conservation
efforts at the time of a listing
determination. We may consider such a
policy for downlisting or delisting
actions in the future. However, we note
that a recovery plan is the appropriate
vehicle to provide guidance on actions
necessary to delist a species. Also, we
may consider developing a similar
policy for critical habitat designations.
Issue 2: Two commenters stated that
our estimates of time needed to develop,
implement, monitor, and report on
conservation efforts are underestimated.
Response 2: We agree that our original
estimates were too low. We have
increased our estimate to an average of
2,500 person-hours to complete a
conservation agreement (with a range of
1,000 to 4,000 person-hours). We also
increased our estimate of the average
number of person-hours to conduct
monitoring and to prepare a report to

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320 and 80 hours, respectively. We
expect the amount of time will vary
depending on several factors including,
but not limited to, the number of species
addressed, amount of biological
information available on the species,
and the complexity of the threats.
Therefore, we have provided an average
to assist interested parties in their
planning efforts.
Issue 3: One commenter questioned
whether we would evaluate proposed
agreements or plans using the stated
criteria automatically or only upon
request. The commenter also questioned
whether we will consider agreements or
plans that we previously determined
were not sufficient to prevent the need
for listing in combination with ‘‘new’’
proposed agreements or plans when we
evaluate whether to list a species.
Response 3: If a listing proposal is
under review, we will consider any
conservation effort. We will evaluate the
status of the species in the context of all
factors that affect the species’ risk of
extinction, including all known
conservation efforts whether planned,
under way, or fully implemented.
However, for formalized conservation
efforts not fully implemented, or where
the results have not been demonstrated,
we will consider the PECE criteria in
our evaluation of whether, and to what
extent, the formalized conservation
efforts affect the species’ status under
the Act.
Issue 4: One commenter asked the
length of time for which a plan is
approved.
Response 4: The PECE is not a planapproval process, nor does it establish
an alternative to listing. PECE outlines
the criteria we will consider when
evaluating formalized conservation
efforts that have not yet been fully
implemented or do not yet have a record
of effectiveness at the time we make a
listing decision. Should the status of a
species decline after we make a decision
not to list this species, we would need
to reassess our listing decision. For
example, there may be situations where
the parties to a plan or agreement meet
their commitments, but unexpected
and/or increased threats (e.g., disease)
may occur that threaten the species’
status and make it necessary to list the
species.
Issue 5: One commenter asked if the
‘‘new information’’ reopener is
operative at any time.
Response 5: Yes, because section
4(b)(1) of the Act requires us to use the
best available scientific and commercial
data whenever making decisions during
the listing process. In making a decision
whether to list a species, we will take
into account all available information,

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including new information regarding
formalized conservation efforts. If we
receive new information on a formalized
conservation effort that has not yet been
implemented or not yet demonstrated
effectiveness prior to making a listing
decision, we will evaluate the
conservation effort in the context of the
PECE criteria. If we receive new
information on such an effort after we
have decided to list a species, then we
will consider this new information
along with other measures that reduce
threats to the species and may use this
information in downlisting the species
from endangered to threatened status or
delisting. However, PECE will not
control our analysis of the downlisting
of the species.
Issue 6: One commenter stated that it
is unrealistic and unreasonable to
expect agreements to be in place at the
time the conservation effort is
evaluated. In addition, the commenter
stated that it is particularly unrealistic
and unreasonable to expect that
conservation agreements or plans be
submitted within 60 days of publication
of a proposed rule.
Response 6: We strongly encourage
parties to initiate formalized
conservation efforts prior to publication
of a proposal to list a species under the
Act. If a formalized conservation effort
is submitted during the public comment
period for a proposed rule, and may be
significant to the listing decision, then
we may extend or reopen the comment
period to allow time for comment on the
new conservation effort. However, we
can extend the public comment period
only if doing so does not prevent us
from completing the final listing action
within the statutory timeframe.
Issue 7: One commenter stated that
most existing conservation agreements
are ineffective, and furthermore that we
are unable to determine their
effectiveness for several years.
Response 7: We agree that it could
take several years for some conservation
efforts to demonstrate results. However,
the PECE criteria provide the framework
for us to evaluate the likely effectiveness
of such formalized conservation efforts.
Some existing conservation efforts have
proven to be very effective and have
justifiably influenced our listing
decisions.
Issue 8: Several commenters stated
that funds are better spent to list
species, designate critical habitat, and
implement recovery efforts rather than
to develop conservation agreements.
Response 8: Conservation agreements
can be seen as early recovery efforts.
Early conservation efforts to improve
the status of a species before listing is
necessary may cost less than if the

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species’ status has already been reduced
to the point where it needs to be listed.
Early conservation of candidate species
can reduce threats and stabilize or
increase populations sufficiently to
allow us to use our resources for species
in greater need of the Act’s protective
measures.
Issue 9: Some commenters questioned
the 14 conservation agreements that we
cited which contributed to making
listing the covered species as threatened
or endangered unnecessary.
Commenters requested information on
each plan to better allow the public to
evaluate the adequacy of the
agreements.
Response 9: We referenced the 14
conservation agreements in the
Paperwork Reduction Act section of the
draft policy and used them solely to
estimate the information collection and
recordkeeping burden that would result
from our draft policy if it were made
final. Therefore, we do not recommend
using these to comment on the new
policy.
Biological Issues
Issue 10: One commenter questioned
our method for evaluating a
conservation plan that addresses only a
portion of a species’ range.
Response 10: Using the PECE criteria,
we will evaluate all formalized
conservation efforts that have yet to be
implemented or have yet to demonstrate
results at the time we make our listing
decision. This is true for efforts that are
applicable to all or only a portion of the
species’ range. The PECE does not set
standards for how much conservation is
needed to make listing unnecessary. The
significance of plans that address only
a portion of a species’ range will be
evaluated in the context of the species’
overall status. While a formalized
conservation effort may be effective in
reducing or removing threats in a
portion of the species’ range, that may
or may not be sufficient to remove the
need to list the species as threatened or
endangered. In some cases, the
conservation effort may lead to a
determination that a species warrants
threatened status rather than
endangered.
In addition, parties may have entered
into agreements to obtain assurances
that no additional commitments or
restrictions will be required if the
species is listed. A landowner or other
non-Federal entity can enter into a
Candidate Conservation Agreement with
Assurances (CCAA) (64 FR 32726, June
17, 1999), which are formal agreements
between us and one or more nonFederal parties that address the
conservation needs of proposed or

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candidate species, or species likely to
become candidates. These agreements
provide assurances to non-Federal
property owners who voluntarily agree
to manage their lands or waters to
remove threats to candidate or proposed
species, or to species likely to become
candidates. The assurances are
authorized under the CCAA regulations
(50 CFR 17. 22(d)(5) and 17.32(d)(5))
and provide non-Federal property
owners assurances that their
conservation efforts will not result in
future regulatory obligations in excess of
those they agree to at the time they enter
into the Agreement. Should the species
eventually be listed under the Act,
landowners will not be subjected to
increased property use restrictions as
long as they conform to the terms of the
agreement. While one of these
agreements may not remove the need to
list, several such agreements, covering a
large portion of the species’ range, may.
Issue 11: Several commenters
suggested that the Services should
consider conservation efforts developed
for species other than the species for
which a listing decision is being made
when the species have similar biological
requirements and the conservation effort
addresses protection of habitat of the
species for which a listing decision is
being made.
Response 11: We agree. When a
decision whether or not to list a species
is being made, we will consider all
conservation efforts that reduce or
remove threats to the species under
review, including conservation efforts
developed for other species. However,
for all formalized conservation efforts
that have not yet been implemented or
have yet to demonstrate results, we will
use the PECE criteria to evaluate the
conservation effort for certainty of
implementation and effectiveness for
the species subject to the listing
decision.
Issue 12: One commenter stated the
‘‘biology/natural history’’ of the species
should be adequately known and
explained in order to evaluate the
effectiveness of the effort.
Response 12: When we consider the
elements under the effectiveness
criterion, we will evaluate whether the
formalized conservation effort
incorporates the best available
information on the species’ biology and
natural history. However, due to
variation in the amount of information
available about different species and the
threats to their existence, the level of
information necessary to provide a high
level of certainty that the effort will be
effective will vary.
We believe it is important, however,
to start conservation efforts as early as

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possible even if complete biological
information is lacking. Regardless of the
extent of biological information we have
about a species, there will almost
always be some uncertainty about
threats and the most effective
mechanisms for improving the status of
a species. We will include the extent of
gaps in the available information in our
evaluation of the level of certainty that
the formalized conservation effort will
be effective. One method of addressing
uncertainty and accommodating new
information is the use of monitoring and
the application of adaptive management
principles. The PECE criteria note that
describing the threats and how those
threats will be removed, including the
use of monitoring and adaptive
management principles, as appropriate,
is critical to determining that a
conservation effort that has yet to
demonstrate results has reduced or
removed a particular threat to a species.
Issue 13: Several commenters
suggested that affected party(ies) should
work with the Services to identify
species that will be proposed for listing
in the near future to help concentrate
and direct efforts to those species that
most warrant the protection, and help
make the party(ies) aware of when and
what actions should be taken to help
conserve species in need.
Response 13: We do identify species
in need of protection. The FWS
publishes a Candidate Notice of Review
(CNOR) in which the FWS identifies
those species of plants and animals for
which they have sufficient information
on the species’ biological status and
threats to propose them as endangered
or threatened under the Act, but for
which development of a proposed
listing regulation is precluded by other
higher priority listing activities. NMFS,
which has jurisdiction over marine
species and some anadromous species,
defines candidate species more broadly
to include species whose status is of
concern but more information is needed
before they can be proposed for listing.
NMFS candidate species can be found
on their web site at http://
www.nmfs.noaa.gov. The FWS’s CNOR
is published in the Federal Register and
can also be found on their web site at
http://endangered.fws.gov.
We agree that it is important to start
developing and implementing
conservation efforts and coordinating
those efforts with us as early as possible.
Early conservation helps preserve
management options, minimizes the
cost of reducing threats to a species, and
reduces the potential for land use
restrictions in the future. Addressing the
needs of species before the regulatory
protections associated with listing

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under the Act come into play often
allows greater management flexibility in
the actions necessary to stabilize or
restore these species and their habitats.
Early implementation of conservation
efforts may reduce the risk of extinction
for some species, thus eliminating the
need for them to be listed as threatened
or endangered.
Issue 14: One commenter stated that
requiring an implementation schedule/
timeline for conservation objectives is
not feasible when baseline data on a
species is poorly understood. The policy
should recognize that variation in
patterns of species distribution and land
ownership will cause variation in the
difficulty of developing conservation
efforts. Thus, some conservation efforts
should be allotted more time for their
completion.
Response 14: Biological uncertainty is
a common feature of any conservation
effort. Nevertheless, some conservation
actions can proceed even when
information on the species is
incomplete. Implementation schedules
are an important element of all
formalized conservation planning efforts
(e.g., recovery plans). The
implementation schedule identified in
PECE criterion A.8. establishes a
timeframe with incremental completion
dates for specific tasks. In light of the
information gaps that may exist for
some species or actions, schedules for
completing certain tasks may require
revision in response to new information,
changing circumstances, and the
application of adaptive management
principles. Including an implementation
schedule in a formalized conservation
effort is critical to determining that the
effort will be implemented and effective
and has improved the status of the
species under the Act at the time we
make our listing determination.
We acknowledge that the amount of
time required to develop and implement
formalized conservation efforts will
vary. Therefore, we encourage early
development and implementation of
conservation efforts for species that
have not yet become candidates for
listing and for those species that are
already candidates. This policy does not
dictate timeframes for completing
conservation efforts. However, the Act
mandates specific timeframes for many
listing decisions, and we cannot delay
final listing actions to allow for the
development and signing of a
conservation agreement or plan. We and
participants must also acknowledge
that, for species that are poorly known,
or whose threats are not well
understood, it is unlikely that
conservation efforts that have not been
implemented or that have yet to yield

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results will have improved the status of
the species sufficiently to play a
significant role in the listing decision.
Issue 15: One commenter stated that
the Services, when evaluating the
certainty of conservation efforts while
making listing decisions, should factor
into the analysis the Services’ ability to
open or reopen the listing process at any
time, and to list the species on an
emergency basis if necessary.
Response 15: We will initiate or
revisit a listing decision if information
indicates that doing so is warranted, and
on an emergency basis if there is an
imminent threat to the species’ wellbeing. However, we do not make any
listing determinations based on our
ability to change our decisions. We base
our listing decisions on the status of the
species at that time, not on some time
in the future.
Criteria Issues
Issue 16: Several commenters
requested that we further explain the
criteria for both implementation and
effectiveness. The commenters claim
that our criteria are too vague and are
subject to interpretation by the Services.
One commenter said that, by stating
‘‘this list should not be considered
comprehensive evaluation criteria,’’ the
policy allows the Services to consider
criteria not addressed in the agreement,
and allows for too much leeway for the
Services to reject conservation efforts of
an agreement, even if all criteria listed
in the draft policy are satisfied.
Response 16: PECE establishes a set of
criteria for us to consider when
evaluating formalized conservation
efforts that have not yet been
implemented or have not yet
demonstrated effectiveness to determine
if the efforts have improved the status
of the species. At the time of the listing
decision, we must find, with minimal
uncertainty, that a particular formalized
conservation effort will be implemented
and will be effective, in order to find
that the effort has positively affected the
conservation status of a species. Meeting
these criteria does not create an
approval process. Some conservation
efforts will address these criteria more
thoroughly than others. Because, in part,
circumstances vary greatly among
species, we must evaluate all
conservation efforts on a case-by-case
basis at the time of listing, taking into
account any and all factors relevant to
whether the conservation effort will be
implemented and effective.
Similarly, the list of criteria is not
comprehensive because the
conservation needs of species will vary
greatly and depend on species-specific,
habitat-specific, location-specific, and

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action-specific factors. Because
conservation needs vary, it is not
possible to state all of the factors that
might determine the ultimate
effectiveness of formalized conservation
efforts. The species-specific
circumstances will also determine the
amount of information necessary to
satisfy these criteria. Evaluating the
certainty of the effectiveness of a
formalized conservation effort
necessarily includes an evaluation of
the technical adequacy of the effort. For
example, the effectiveness of creating a
wetland for species conservation will
depend on soil texture, hydrology, water
chemistry, and other factors. Listing all
of the factors that we would
appropriately consider in evaluations of
technical adequacy is not possible.
Issue 17: One commenter suggested
that we consider conservation plans in
the development stage rather than
waiting until finalized due to the
possible benefits that may result from
initial efforts.
Response 17: Plans that have not been
finalized and, therefore, do not conform
to the PECE criteria, may have some
conservation value for the species. For
example, in the process of developing a
plan, participants and the public may
become more informed about the
species and its conservation needs. We
will consider any benefits to a species
that have accrued prior to the
completion of an agreement or plan in
our listing decision, under section
4(b)(1)(A) of the Act. However, the mere
existence of a planning process does not
provide sufficient certainty to actually
improve the status of a species. The
criteria of PECE set a rigorous standard
for analysis and assure a high level of
certainty associated with formalized
conservation efforts that have not been
implemented, or have yet to yield
results, in order to determine that the
status of the species has improved.
We encourage parties to involve the
appropriate Service during the
development stage of all conservation
plans, whether or not they are finalized
prior to a listing decision. Sharing of the
best available information can lead to
developing better agreements. In the
event that the focus species is listed,
these planning efforts can be utilized as
the basis for development of Safe Harbor
Agreements or Habitat Conservation
Plans, through which we can permit
incidental take under Section 10(a) of
the Act, or provide a basis for a recovery
plan.
Issue 18: Several commenters stated
that the policy should provide more
sufficient, clear criteria by which the
implementation and effectiveness of
conservation efforts is monitored and

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assessed. One commenter also suggested
that we require a specific reporting
format to help show effectiveness of
conservation efforts.
Response 18: When evaluating
formalized conservation efforts under
PECE, we will consider whether the
effort contains provisions for monitoring
and reporting implementation and
effectiveness results (see criterion B.5).
Regarding a standard reporting
format, the nature of the formalized
conservation efforts we evaluate will
probably vary a great deal. Efforts may
range from complex to single-threat
approaches. Therefore, for us to adopt a
one-size-fits-all approach to report on
monitoring efforts and results would be
inappropriate.
Issue 19: One commenter stated that
PECE is too demanding with respect to
identification and commitment of
resources ‘‘up-front,’’ and that these
strict requirements and commitments on
conservation efforts harm the voluntary
nature of agreements.
Response 19: Addressing the
resources necessary to carry out a
conservation effort is central to
establishing certainty of plan
implementation and effectiveness.
Accordingly, we believe that PECE must
establish a minimum standard to assure
certainty of implementation and
effectiveness. This certainty is necessary
in determining whether the
conservation effort has improved the
status of species.
It is our intention and belief that the
PECE criteria will actually increase the
voluntary participation in conservation
agreements by increasing the likelihood
that parties’ voluntary efforts and
commitments that have yet to be
implemented or have yet to demonstrate
results will play a role in a listing
decision.
Issues Related to Specific Changes
Several commenters recommended
specific changes to the evaluation
criteria. The recommended additions in
language to the criteria are italicized
and deletions are shown in strikeout to
help the reader identify the proposed
changes.
Issue 20: Commenters stated that
there is potential confusion between
evaluation criteria A.2. (authority) and
A.3.(authorization) as they believed
some Service staff may have difficulty
distinguishing between an ‘‘authority,’’
and an ‘‘authorization.’’ To help
eliminate this potential confusion,
commenters requested that criterion
A.2. be changed to read: ‘‘the legal
authority of the party(ies) to the
agreement or plan to implement the
conservation effort and the legal

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procedural requirements necessary to
implement the effort are described.’’
They also requested that we change
criterion A.3. to read: The legal
requirements (e.g. permits,
environmental review documents)
necessary to implement the
conservation effort are identified, and
an explanation of how the party(ies) to
the agreement or plan that will
implement the effort will fulfill these
requirements is provided.’’
Response 20: We agree with adding
the word ‘‘legal’’ and also have
incorporated additional language and
separated this criterion (former criterion
A.2) into two criteria (A.2. and A.3.).
Evaluation Criterion A.2. now reads,
‘‘The legal authority of the party(ies) to
the agreement or plan to implement the
formalized conservation effort, and the
commitment to proceed with the
conservation effort are described.’’ New
evaluation Criterion A.3. reads, ‘‘The
legal procedural requirements necessary
to implement the effort are described,
and information is provided indicating
that fulfillment of these requirements
does not preclude commitment to the
effort.’’ In making these changes, we
recognize that there may be overlap
between new criterion A.3. and the
criterion on authorizations (now A.4.),
but our intent is to separate a criterion
on procedural requirements from
substantive authorizations (e.g. permits).
We believe that we need to specifically
determine that the parties to the
agreement will obtain the necessary
authorizations. We also recognize that
parties may not be able to commit to
some conservation efforts until they
have fulfilled procedural requirements
(e.g. under the National Environmental
Policy Act) since some laws preclude
commitment to a specific action until
certain procedures are completed.
Additionally, in creating a new criterion
A.3., we find it unnecessary to
incorporate the suggested changes to old
A.3. (now A.4.).
Issue 21: Commenters requested the
following change to Criterion A.4. (now
Criterion A.5.): ‘‘The level of voluntary
participation (e.g., permission to enter
private land or other contributions by
private landowners) necessary to
implement the conservation effort is
identified, and an explanation of how
the party(ies) to the agreement or plan
that will implement the conservation
effort will obtain that level of voluntary
participation is provided (e.g., an
explanation of why incentives to be
provided are expected to result in the
necessary level of voluntary
participation)’’.
Response 21: We do not believe that
including ‘‘an explanation of how the

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party(ies) * * * will obtain that level of
voluntary participation * * *’’ will
provide us with enough information in
order to determine that necessary
voluntary participation will, in fact, be
obtained. Evaluation Criterion A.5.
(formerly A.4.) now reads: ‘‘The type
and level of voluntary participation
(e.g., number of landowners allowing
entry to their land, or number of
participants agreeing to change timber
management practices and acreage
involved) necessary to implement the
conservation effort is identified, and a
high level of certainty is provided that
the party(ies) to the agreement or plan
that will implement the conservation
effort will obtain that level of voluntary
participation (e.g., an explanation of
how incentives to be provided will
result in the necessary level of voluntary
participation).’’
Issue 22: Commenters suggested that
Evaluation Criterion A.5. (now criterion
A.6.) be changed to read as ‘‘Any
statutory or regulatory deficiency or
barrier to implementation of the
conservation effort is identified and an
explanation of how the party(ies) to the
agreement or plan that will implement
the effort will resolve the deficiency or
barriers is provided.’’
Response 22: We do not agree with
the suggested language change. We
believe that all regulatory mechanisms,
including statutory authorities, must be
in place to ensure a high level of
certainty that the conservation effort
will be implemented.
Issue 23: The suggested change to
Evaluation Criterion A.6. (now A.7.) is
‘‘A fiscal schedule and plan is provided
for the conservation effort, including a
description of the obligations of
party(ies) to the agreement or plan that
will implement the conservation effort,
and an explanation of how they will
obtain the necessary funding is
provided.’’
Response 23: We do not agree with
the suggested language change since we
believe that there must be a high level
of certainty that the party(ies) will
obtain the necessary funding to
implement the effort. While we agree
that including a fiscal schedule, a
description of the obligations of the
party(ies), and an explanation of how
they will obtain the funding is
important, this information, by itself,
does not provide enough certainty for us
to consider a formalized conservation
effort that has not yet been implemented
as contributing to a listing decision.
Also see our response to Issue 41.
Issue 24: One commenter suggested
that the Services should consider an
incremental approach to evaluating

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implementation dates for the
conservation effort.
Response 24: We agree with the
commenter’s suggested change.
Evaluation Criterion A.8. (formerly A.7.)
now reads as: ‘‘An implementation
schedule (including incremental
completion dates) for the conservation
effort is provided.’’
Issue 25: Commenters suggested that
Criterion A.8. (now A.9.) be revised to
read: ‘‘The conservation agreement or
plan that includes the conservation
effort include a commitment by the
party(ies) to apply their legal authorities
and available resources as provided in
the agreement or plan.’’
Response 25: The participation of the
parties through a written agreement or
plan establishes each party’s
commitment to apply their authorities
and resources to implementation of each
conservation effort. Therefore, it is
unnecessary to include the suggested
language; criterion A.9. (formerly A.8.)
remains unchanged.
Issue 26: A commenter also suggested
adding a criterion: ‘‘Evidence that other
conservation efforts have been
implemented for sympatric species
within the same ecosystem that may
provide benefits to the subject species is
provided.’’
Response 26: We do not think it is
necessary to add such a criterion. At the
time of listing, we will take into
consideration all relevant information,
including the effect of other
conservation efforts for sympatric
species on the status of the species we
are considering for listing.
Issue 27: Several commenters
recommended that we make specific
changes to the Criterion B.1. language to
read as: ‘‘The nature and extent of
threats being addressed by the
conservation effort are described, and
how the conservation effort will reduce
the threats are defined.’’ In addition,
commenters suggested we change
Criterion B.2. to read as: ‘‘Explicit
incremental objectives for the
conservation effort and dates for
achieving them should be stated.’’
Response 27: We agree that, in
addition to identifying threats, the plan
should explain how formalized
conservation efforts reduce threats to
the species. Therefore, Evaluation
Criterion B.1. now reads as: ‘‘The nature
and extent of threats being addressed by
the conservation effort are described,
and how the conservation effort reduces
the threats is described.’’ We agree that
conservation efforts should include
incremental objectives. This allows the
parties to evaluate progress toward the
overall goal of a conservation effort,
which is essential for adaptive

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management. In addition, setting and
achieving interim objectives is helpful
in maintaining support for the effort.
Therefore, Evaluation Criterion B.2. now
reads as: ‘‘Explicit incremental
objectives for the conservation effort
and dates for achieving them are
stated.’’
Issue 28: Some commenters
recommended that the party’s (ies’)
prior record with respect to
development and implementation of
conservation efforts be recognized
towards their credibility and reliability
to implement future conservation
efforts. A commenter also suggested
adding a criterion to read as:
‘‘Demonstrated ability of the party(ies)
to develop and implement effective
conservation efforts for this or other
species and habitats.’’ Another comment
suggested that the history and
momentum of a program should be
taken into account (e.g., watershed
council programs) when considering the
certainty of effectiveness and
implementation. These considerations
would help ensure a high level of
certainty that regulatory mechanisms,
funding authorizations, and voluntary
participation will be adopted by a
specified date adequate to provide
certainty of implementation.
Response 28: Although it would be
beneficial for the party(ies) to
demonstrate their past abilities to
implement effective formalized
conservation efforts for the focus species
or other species and habitats, we do not
believe that this is necessary to
demonstrate a high level of certainty
that the conservation effort will be
implemented. In addition, a criterion
that emphasizes previous experience in
implementing conservation efforts may
limit formalized conservation efforts to
only those party(ies) that have a track
record and would unjustifiably
constrain consideration of efforts by
those who do not satisfy this criterion.
Such parties can provide certainty in
other ways. We agree that a party’s (ies’)
prior record and history with respect to
implementation of conservation efforts
should be recognized towards their
credibility and reliability. Information
concerning a party’s experience in
implementing conservation efforts may
be useful in evaluating how their
conservation effort satisfies the PECE
criteria. The momentum of a project is
a good indication of the progress that is
being made towards a party’s (ies’)
conservation efforts, but momentum can
decrease, and thus cannot be solely
relied upon to determine the certainty
that a formalized conservation effort
will be implemented or effective.

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Issue 29: One commenter stated that
our use of ‘‘must’’ in meeting the criteria
is inappropriate in the context of a
policy, and the policy should rather be
treated as guidance.
Response 29: The only mandatory
statements in the policy refer to findings
that we must make. In order for us to
find that a particular formalized
conservation effort has improved the
status of the species, we must be certain
that the formalized conservation effort
will be implemented and will be
effective. No party is required to take
any action under this policy. Rather the
policy provides us guidance on how we
will evaluate formalized conservation
efforts that have yet to be implemented
or have yet to demonstrate effectiveness
at the time of our listing decision.
Legal Issues
Issue 30: Many commenters
mentioned past litigation (i.e., decisions
on coho salmon and Barton Springs
salamander) in which the courts have
ruled against the Services in cases that
have involved Candidate Conservation
Agreements or other conservation
efforts, and question how the PECE
policy addresses this issue. Commenters
question how this policy will keep the
Services from relying on speculative
conservation efforts.
Response 30: We referenced past
adverse decisions when we published
the draft policy. The purpose of PECE,
in part, is to address situations similar
to those in which some courts found
past conservation efforts insufficient.
We developed the PECE to establish a
set of consistent standards for
evaluating certain formalized
conservation efforts at the time of a
listing decision and to ensure with a
high level of certainty that formalized
conservation efforts will be
implemented and effective. We agree
that we may not rely on speculative
promises of future action when making
listing decisions.
Issue 31: Several commenters
questioned the legality of considering
private party’s (ies’) input when section
4(b)(1)(A) of the Act states ’’* * * and
after taking into account those efforts, if
any, being made by any State or foreign
nation, or any political subdivision of a
State or foreign nation, to protect such
species * * *’’ In addition, commenters
stated that the PECE policy is
inconsistent with the plain language
and the congressional intent of the Act
by allowing agencies to evaluate any
private measures. They also stated that
this was inconsistent with considering
section 4(a)(1)(D), which only permits
agencies to evaluate ‘‘existing regulatory
mechanisms.’’ They also stated that the

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Services incorrectly conclude that
section 4(a)(1)(E), ‘‘other natural or
manmade factors affecting [the species’]
continued existence,’’ allows the
Services to consider actions of ‘‘any
other entity’’ in making listing
determinations. One commenter stated
that there are no provisions to authorize
the Services to consider voluntary
conservation agreements by other
Federal agencies. In 1982, the Act
omitted 1973 language for listing
determinations made with ‘‘other
interested Federal agencies.’’ In
addition, the commenters stated that the
Act imposes conservation duties on all
Federal agencies only after the Services
have taken the initial step in listing the
species.
Response 31: Please refer to the Policy
Scope section for an explanation of our
authority under section 4 of the Act to
assess all threats affecting the species
status as well as all efforts that reduce
threats to the species.
Issue 32: One commenter suggested
that we formalize this policy by
codifying it in the Code of Federal
Regulations. They suggest that by
adopting this policy as agency
regulation, we can make the policy more
binding, provide a basis for judicial
deference, and thus hopefully reduce
the amount of litigation.
Response 32: We believe that
codifying PECE in the Code of Federal
Regulations is not necessary because it
is intended as a policy to guide how we
will evaluate formalized conservation
efforts when making listing decisions.
Issue 33: Some commenters believe
that all regulatory mechanisms must be
in place prior to finalizing a
conservation plan, while other
commenters feel that this requirement
may dissuade voluntary conservation
efforts of private landowners. One
commenter stated that, based on the
amount of time usually needed to enact
most regulatory mechanisms, it seems
appropriate to set this minimum
standard for evaluating formalized
conservation efforts. This criterion
should prompt more serious political
consideration of adopting a regulatory
mechanism sooner rather than later.
Another commenter suggested that,
instead of requiring regulations, we
should require cooperators to identify
and address any regulatory deficiencies
affecting the species.
Response 33: In order for us to
determine with a high level of certainty
that a formalized conservation effort
will be implemented, among other
things, all regulatory mechanisms
necessary to implement the effort must
be in place at the time we make our
listing decision. However, there may be

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situations where regulatory mechanisms
are not necessary for implementing the
conservation effort due to the nature of
the action that removes threats, or there
may be situations where necessary
regulatory mechanisms are already in
place.
Issue 34: One commenter stated that
only when an alternative regulatory
mechanism provides the same or higher
protections than listing can the threat
factors be said to be alleviated. A high
level of certainty over future funding or
voluntary participation might be
acceptable if alternative regulatory
mechanisms to prevent take in the
interim are in place.
Response 34: Determinations to list
species under the Act are based solely
on whether or not they meet the
definitions of threatened or endangered
as specified by the Act. Through PECE,
we will evaluate, at the time of our
listing decision, whether a formalized
conservation effort adequately reduces
threats and improves the status of the
species to make listing unnecessary.
Additional alternative regulatory
mechanisms to prevent take are not
necessary if the threats to the species are
reduced to the point that the species
does not meet the definitions of
threatened or endangered.
Issue 35: One commenter stated
concern that the Services would not be
able to provide assurances to private
landowners because no specific
provisions in the Act authorize
conservation agreements in lieu of
listing, and that third party lawsuits also
undermine the Services’ assurances.
One commenter asked what future
protection of their ongoing actions
participants would receive.
Response 35: Satisfying the PECE
criteria does not provide assurances that
we will not decide to list a species.
Also, because of the individual nature of
species and the circumstances of their
status, PECE does not address how
much conservation is required to make
listing unnecessary. Because of the
numerous factors that affect a species’
status, we may list a species despite the
fact that one or more formalized
conservation efforts have satisfied PECE.
However, assurances can be provided to
non-Federal entities through an
approved Candidate Conservation
Agreement with Assurances (CCAA)
and in an associated enhancement of
survival permit issued under section
10(a)(1)(A) of the Act. Many property
owners desire certainty with regard to
future regulatory restrictions to
guarantee continuation of existing land
or water uses or to assure allowance for
future changes in land use. By
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use planning, assurances provided
under the CCAA policy can
substantially benefit many property
owners. These agreements can have
significance in our listing decisions, and
we may also evaluate them according to
the criteria in the PECE if they are not
yet implemented or have not
demonstrated results. However, we will
make the determination of whether
these CCAAs preclude or remove any
need to list the covered species on a
case-by-case basis in accordance with
the listing criteria and procedures under
section 4 of the Act.
Issue 36: Several commenters stated
that the PECE does not always provide
incentives to conserve species and is,
therefore, not supported by the
Congressional finding of section 2(a)(5)
of the Act. The commenters stated that
the parties lack incentives to develop
conservation programs until after the
species is listed (e.g., Building Industry
Association of Southern California v.
Babbitt, where listing the coastal
California gnatcatcher encouraged
enrollment in conservation programs.)
In addition, they stated that PECE
provides a means for the listing process
to be avoided entirely, and, therefore,
may often fail to provide incentives that
Congress referred to in its findings in
section 2(a)(5). They stated that the
‘‘system’’ of incentives to which that
Congressional finding refers is already
found in incidental take provisions in
section 10 of the Act, which will better
ensure development and
implementation of successful
conservation programs.
Response 36: PECE is not ‘‘a way to
avoid listing’’ or an ‘‘in lieu of listing’’
policy. This policy outlines guidance on
the criteria we will use to evaluate
formalized conservation efforts in
determining whether to list a species.
Knowing how we will evaluate any
unimplemented or unmeasured
formalized conservation efforts may
help parties draft more effective
agreements. However, there is a
conservation incentive because, if a
species becomes listed, these efforts can
contribute to recovery and eventual
delisting or downlisting of the species.
Also, see our response to Issue 35.
Issue 37: Several commenters stated
that relying on unimplemented future
conservation measures is inconsistent
with the definitions of ‘‘threatened
species’’ and ‘‘endangered species’’ as
provided in section 3 of the Act, and
that PECE’s evaluation of future,
unimplemented conservation efforts in
listing determinations is inconsistent
with both the plain language of the Act
and Congressional intent. Also, the
commenters stated that the PECE

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erroneously claims that the definitions
of ‘‘threatened species’’ and
‘‘endangered species’’ connote future
status, not present status.
Response 37: We agree that, when we
make a listing decision, we must
determine the species’ present status
which includes, in part, an evaluation of
current threats. However, deciding or
determining whether a species meets
the definition of threatened or
endangered also requires us to make a
prediction about the future persistence
of a species. Central to this concept is
a prediction of future conditions,
including consideration of future
negative effects of anticipated human
actions. The language of the Act
supports this approach. The definitions
for both ‘‘endangered species’’ and
‘‘threatened species’’ connote future
condition, which indicates that
consideration of whether a species
should be listed depends in part on
identification and evaluation of future
actions that will reduce or remove, as
well as create or exacerbate, threats to
the species. We cannot protect species
without taking into account future
threats to a species. The Act does not
require that, and species conservation
would be compromised if, we wait until
a threat is actually impacting
populations before we list the species as
threatened or endangered. Similarly, the
magnitude and/or imminence of a threat
may be reduced as a result of future
positive human actions. Common to the
consideration of both the negative and
positive effects of future human actions
is a determination of the likelihood that
the actions will occur and that their
effects on the species will be realized.
Therefore, we consider both future
negative and future positive impacts
when assessing the listing status of the
species. The first factor in section
4(a)(1)—‘‘the present or threatened
destruction, modification, or
curtailment of [the species’] habitat or
range’’—identifies how analysis of both
current actions affecting a species’
habitat or range and those actions that
are sufficiently certain to occur in the
future and affect a species’ habitat or
range are necessary to assess a species’
status. However, future Federal, state,
local, or private actions that affect a
species are not limited to actions that
will affect a species’ habitat or range.
Congress did not intend for us to
consider future actions affecting a
species’ habitat or range, yet ignore
future actions that will influence
overutilization, disease, predation,
regulatory mechanisms, or other natural
or manmade factors. Therefore, we
construe Congress’ intent, as reflected

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by the language of the Act, to require us
to consider both current actions that
affect a species’ status and sufficiently
certain future actions—either positive or
negative—that affect a species’ status.
Issue 38: Several commenters stated
that PECE’s ‘‘sufficient certainty’’
standard is inconsistent with the Act’s
‘‘best available science’’ standard. They
stated that courts have ruled that any
standard other than ‘‘best available
science’’ violates the plain language and
the Congressional intent of the Act. The
commenters also stated that the
‘‘sufficient certainty’’ standard violates
Congressional intent because it weakens
the standard required by the Act to list
species and can result in unnecessary,
and potentially harmful, postponement
of affirmative listing.
Response 38: We agree that our listing
decisions must be based on the best
available science. PECE does not
address or change the listing criteria and
procedures established under section 4
of the Act. Listing analyses include the
evaluation of conservation efforts for the
species under consideration. PECE is
designed to help ensure a consistent and
rigorous review of formalized
conservation efforts that have yet to be
implemented or efforts that have been
implemented but have not yet shown
effectiveness by establishing a set of
standards to evaluate the certainty of
implementation and effectiveness of
these efforts.
Issue 39: Several commenters stated
that PECE reduces or eliminates public
comment on proposed rules to list
species and is in violation of the
Administrative Procedure Act (APA).
Further, they stated that PECE violates
the APA by allowing submission of
formalized conservation measures after
the proposed rule is issued to list
species as threatened or endangered.
Receiving ‘‘conservation agreements or
plans before the end of the comment
period in order to be considered in final
listing decision’’ encourages landowners
to submit conservation agreements at
the last minute to avoid public scrutiny,
and the PECE process could be a
potential delay tactic used by
landowners to postpone the listing of
species. They stated that the Courts
agree that failure of the Services to make
available to the public conservation
agreements on which listing decisions
are based violates the public comment
provision of the APA.
Response 39: All listing decisions,
including those involving formalized
conservation agreements, will comply
with the requirements of the APA and
ESA. If we receive a formalized
conservation agreement or plan during
an open comment period and it presents

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significant new information relevant to
the listing decision, we would either
extend or reopen the public comment
period to solicit public comments
specifically addressing that plan or
agreement. We recognize, however, that
there may be situations where APA
requirements must be reconciled with
the ESA’s statutory deadlines.
Issue 40: Several commenters
expressed their concern that
conservation efforts do not have binding
obligations.
Response 40: While PECE does not
require participants to have binding
obligations, the policy does require a
high level of certainty that a
conservation effort will be implemented
and effective at the time we make our
listing decision. Furthermore, any
subsequent failure to satisfy one or more
PECE criteria would constitute new
information and, depending on the
significance of the formalized
conservation effort to the species’ status,
may require a reevaluation of whether
there is an increased risk of extinction,
and whether that increased risk
indicates that the species’ status is
threatened or endangered.
Funding Issues
Issue 41: Several commenters
requested that we further specify our
criteria stating that ‘‘a high level of
certainty that the party(ies) to the
agreement or plan that will implement
the conservation effort will obtain the
necessary funding is provided.’’ In
addition, one commenter questioned
whether ‘‘a high level of certainty’’ for
authorizations or funding was really an
improvement over the status quo and
suggested that we either list the required
elements we will use to evaluate
completeness of the conservation efforts
or quantitatively define an evaluation
standard.
Response 41: A high level of certainty
of funding does not mean that funding
must be in place now for
implementation of the entire plan, but
rather, it means that we must have
convincing information that funding
will be provided each year to implement
relevant conservation efforts. We believe
that at least 1 year of funding should be
assured, and we should have
documentation that demonstrates a
commitment to obtain future funding,
e.g., documentation showing funding for
the first year is in place and a written
commitment from the senior official of
a state agency or organization to request
or provide necessary funding in
subsequent budget cycles, or
documentation showing that funds are
available through appropriations to
existing programs and the

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implementation of this plan is a priority
for these programs. A fiscal schedule or
plan showing clear links to the
implementation schedule should be
provided, as well as an explanation of
how the party(ies) will obtain future
necessary funding. It is also beneficial
for entities to demonstrate that similar
funding was requested and obtained in
the past since this funding history can
show the likelihood that future funding
will be obtained.
Issue 42: One commenter suggested
that the PECE policy holds qualifying
conservation efforts to a higher standard
than recovery plans. The commenter
quoted several existing recovery plans
that included disclaimers about budget
commitments associated with specific
tasks. Therefore, the commenter
concluded that it is unrealistic and
unreasonable to mandate that funding
be in place when a conservation effort
is evaluated.
Response 42: The Act does not require
that certainty of implementation be
provided for recovery management
actions for listed species or conservation
efforts for nonlisted species. Likewise,
the PECE does not require that certainty
of implementation be provided for
during development of conservation
efforts for nonlisted species. It is
inappropriate to consider the PECE as
holding conservation plans or
agreements to a higher standard than the
standard that exists for recovery plans
because the PECE does not mandate a
standard for conservation plans or
agreements at the time of plan
development. Rather, the PECE provides
us guidance for the evaluation of
conservation efforts when making a
listing decision for a nonlisted species.
Recovery plans for listed species and
conservation plans or agreements for
nonlisted species identify needed
conservation actions but may or may not
provide certainty that the actions will be
implemented or effective. However,
when making a listing decision for
nonlisted species, we must consider the
certainty that a conservation effort will
be implemented and effective. The
PECE establishes criteria for us to use in
evaluating conservation efforts when
making listing decisions.
It is possible that we would evaluate
a management action identified in a
recovery plan for a listed species using
the PECE. If, for example, a yet-to-beimplemented task identified in a
recovery plan for a listed species would
also benefit a nonlisted species, we, in
making a listing decision for the
nonlisted species, would apply the
PECE criteria to that task to determine
whether it could be considered as
contributing to a decision not to list the

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species or to list the species as
threatened rather than endangered. In
this situation, we would evaluate the
management task identified in a
recovery plan using the PECE criteria in
the same way as other conservation
efforts for the nonlisted species. That is,
the recovery plan task would be held to
the same evaluation standard in the
listing decision as other conservation
efforts.
Foreign Species Issues
Issue 43: One commenter asked why
the proposed policy excluded
conservation efforts by foreign
governments, even though section
4(b)(1)(A) of the Act requires the
Services to take such efforts into
account. This commenter also stated
that the proposed policy is contrary to
‘‘The Foreign Relations Law of the
United States,’’ which he argues
requires the United States to defer to
other nations when they have a ‘‘clearly
greater interest’’ regarding policies or
regulations being considered by the
United States that could negatively
affect their nations.
Response 43: As required by the Act,
we have taken and will continue to take
into account conservation efforts by
foreign countries when considering
listing of foreign species (sections 4(b)
and 8 of the Act). Furthermore,
whenever a species whose range occurs
at least in part outside of the United
States is proposed for a listing action
(listing, change in status, or delisting),
we communicate with and solicit the
input of the countries within the range
of the species. At that time, countries
are provided the opportunity to share
information on the status of the species,
management of the species, and on
conservation efforts within the foreign
country. We will take those comments
and information provided into
consideration when evaluating the
listing action, which by law must follow
the analysis outlined in sections 4(a)
and 4(b) of the Act. Thus, all listing
decisions for foreign species will
continue to comply with the provisions
of the Act.
Issues Outside Scope of Policy
We received several comments that
were outside of the scope of PECE.
Below, we have briefly addressed these
comments.
Issue 44: A comment was made that
the Services should not list foreign
species under the Act when such listing
is in conflict with the Convention on
International Trade in Endangered
Species of Wild Fauna and Flora
(CITES).

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Response 44: Considerations
regarding CITES are outside the scope of
the PECE. However, we do not believe
there is a conflict with CITES and listing
of a foreign species under the Act. When
evaluating the status of foreign species
under the Act, we take into
consideration whether the species is
listed under CITES (and if listed, at
what level) and all available information
regarding the listing. If you have
questions regarding CITES, please
contact the FWS Division of Scientific
Authority at 4401 N. Fairfax Drive,
Room 750, Arlington, VA 22203 or by
telephone at 703–358–1708.
Issue 45: One commenter stated that
all conservation agreements/plans
should be subject to independent
scientific peer review. This commenter
also argued that any conservation
agreement or plan for a candidate
species should remove all known major
threats for the species and convey a
reasonably high certainty that the
agreement or plan will result in full
conservation of the species.
Response 45: We believe that
scientific review can help ensure that
formalized conservation efforts are
comprehensive and effective, and we
expect that most or all participants will
seek scientific review, but we will not
require a formal independent peer
review of conservation plans at the time
of development. If a formalized
conservation plan is presented for a
species that has been proposed for
listing, all relevant information,
including formalized conservation
efforts, will be subject to independent
scientific review consistent with our
policy on peer review (59 FR 34270).
We will also solicit public comments on
our listing proposals.
The amount or level of conservation
proposed in a conservation plan (e.g.,
removal of all versus some of the major
threats) is outside the scope of PECE.
Assuming that all of the PECE criteria
have been satisfied for the efforts to
which they apply, it stands to reason
that plans that comprehensively address
threats are likely to be more influential
in listing decisions than plans that do
not thoroughly address the conservation
of the species. We believe that by
establishing the PECE criteria for
certainty of implementation and
effectiveness, we are promoting the
development of plans that improve the
status of species. We expect that in
some cases this improvement will
reduce the risk of extinction sufficiently
to make listing under the Act
unnecessary, to result in listing a
species as threatened rather than
endangered, or to make classifying a

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species as a candidate for listing
unnecessary.
Issue 46: Several commenters
questioned the extent of state
involvement in the development of
conservation efforts. One commenter
said that the policy should mandate that
States be involved with plan
development, and that states approve all
conservation efforts.
Response 46: It is outside the scope of
PECE to establish standards to
determine who participates in the
development of conservation efforts and
at what level. In many cases, states play
a crucial role in the conservation of
species. For formalized conservation
efforts to be effective, it is logical for the
states to play an integral role. To that
end, we highly encourage state
participation to help ensure the
conservation of the species, but we do
not believe that states should be
mandated to participate in the
development of all conservation plans.
In some cases, states may not have the
resources to participate in these plans,
and in other situations, individuals or
non-state entities may have the ability to
develop an effective and wellimplemented plan that does not require
state participation, but that contributes
to the conservation of a species.
Through our listing process, we will
work with state conservation agencies,
and, if the listing decision involves a
public comment period, states have a
formal opportunity to comment on any
conservation efforts being considered in
the listing decision.
Issue 47: Several comments were
made regarding the feedback
mechanisms to correct a party’s (ies’)
inadequate or ineffective
implementation of a conservation effort.
It was suggested that the Services
specify clearly, and based on scientific
information, those factors which the
Services believe indicate that a
conservation effort is either not being
implemented or not being effective.
Comments also suggested that party(ies)
be given reasonable time (e.g., 90–120
days) to respond to the Service’s
findings by either implementing actions,
achieving objectives, or providing
information to respond to the Services.
Response 47: PECE is not a regulatory
approval process, and establishing a
formal feedback mechanism between
the Services and participants is not
within the scope of PECE. The final
determination whether to list a species
under the Act will rest solely upon
whether or not the species under
consideration meets the definition of
threatened or endangered as specified
by the Act, which will include
consideration of whether formalized

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conservation efforts that meet PECE
criteria have enhanced the status of the
species. We will provide guidance to
improve conservation efforts when
possible, but we cannot delay listing
decisions in order to participate in a
corrective review process when the best
scientific and commercial data indicate
that a species meets the definition of
threatened or endangered.
Issue 48: One commenter requested
that we clarify how significant the
conservation agreement must be to the
species, and describe the anticipated
overall impact/importance to the
species and the estimated extent of the
species’ overall range that the habitat
conservation agreement might cover.
Response 48: PECE does not establish
standards for how much or what kind of
conservation is required to make listing
a species under the Act unnecessary.
We believe that high-quality formalized
conservation efforts should explain in
detail the impact and significance of the
effort on the target species. However, at
the time of our listing decision, we will
evaluate formalized conservation efforts
using PECE to determine whether the
effort provides certainty of
implementation and effectiveness and
improves the status of the species.
Through our listing process, we will
determine whether or not a species
meets the definition of threatened or
endangered.
Issue 49: Several commenters wrote
that states do not have additional
resources to be pro-active on candidate
conservation efforts, and suggested that
funding for conservation plans or efforts
should be provided by the Federal
Government.
Response 49: This comment is outside
the scope of the PECE. This policy
establishes a set of standards for
evaluating formalized conservation
efforts in our listing decisions and does
not address funding sources to develop
and implement these efforts.
Summary of Changes From the
Proposed Policy
We have slightly revised some of the
evaluation criteria as written in the
proposed policy. We made the following
changes to reflect comments that we
received during the public comment
period. We added the word ‘‘legal’’ to
criterion A.2., incorporated additional
language (‘‘the commitment to proceed
with the conservation effort is
described.’’), and separated this
criterion into two criteria (A.2. and
A.3.). We revised criterion A.3.
(formerly part of A.2.) to recognize that
parties cannot commit to completing
some legal procedural requirements (e.g.
National Environmental Policy Act)

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since some procedural requirements
preclude commitment to a proposed
action before the procedures are actually
completed. We changed criterion A.5.
(formerly A.4.) by adding ‘‘type’’ and
‘‘(e.g., number of landowners allowing
entry to their land, or number of
participants agreeing to change timber
management practices and acreage
involved)’’ and by replacing ‘‘why’’ with
‘‘how’’ and ‘‘are expected to’’ with
‘‘will.’’ We deleted the word ‘‘all’’ at the
beginning of criterion A.6. as we felt it
was redundant. We added ‘‘(including
incremental completion dates)’’ to
criterion A.8. (formerly A.7.). To
criterion B.1. we added ‘‘and how the
conservation effort reduces the threats is
described.’’
Also in the proposed policy we stated
that if we make a decision not to list a
species, or to list the species as
threatened rather than endangered,
based in part on the contributions of a
formalized conservation effort, we will
monitor the status of the species. We
have clarified this in the final policy to
state that we will monitor the status of
the effort, including the progress of
implementation of the formalized
conservation effort.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
policy and was reviewed by the Office
of Management and Budget (OMB) in
accordance with the four criteria
discussed below.
(a) This policy 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. The policy for the
evaluation of conservation efforts when
making listing decisions does not
pertain to commercial products or
activities or anything traded in the
marketplace.
(b) This policy is not expected to
create inconsistencies with other
agencies’ actions. FWS and NMFS are
responsible for carrying out the Act.
(c) This policy is not expected to
significantly affect entitlements, grants,
user fees, loan programs, or the rights
and obligations of their recipients.
(d) OMB has determined that this
policy may raise novel legal or policy
issues and, as a result, this action has
undergone OMB review.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the

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Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996),
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 effect of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions), unless the agency
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 the statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities. The following discussion
explains our determination.
We have examined this policy’s
potential effects on small entities as
required by the Regulatory Flexibility
Act and have determined that this
action will not have a significant
economic impact on a substantial
number of small entities since the
policy will not result in any significant
additional expenditures by entities that
develop formalized conservation efforts.
The criteria in this policy describe how
we will evaluate elements that are
already included in conservation efforts
and do not establish any new
implementation burdens. Therefore, we
believe that no economic effects on
States and other entities will result from
compliance with the criteria in this
policy.
Pursuant to the Regulatory Flexibility
Act, at the proposed policy stage, we
certified to the Small Business
Administration that this policy would
not have a significant economic impact
on a substantial number of small
entities, since we expect that this policy
will not result in any significant
additional expenditures by entities that
develop formalized conservation efforts.
We received no comments regarding the
economic impacts of this policy on
small entities. Thus, we certify that this
final policy will not have a significant
adverse impact on a substantial number
of small entities and conclude that a
regulatory flexibility analysis is not
necessary.
We have determined that this policy
will not cause (a) any effect on the
economy of $100 million or more, (b)
any increases in costs or prices for
consumers; individual industries;
Federal, State, or local government
agencies; or geographical regions, or (c)
any significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability

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of U.S.-based enterprises to compete
with foreign-based enterprises (see
Economic Analysis below).
Executive Order 13211
On May 18, 2001, the President issued
an Executive Order (E.O. 13211) on
regulations that significantly affect
energy supply, distribution, and use.
Executive Order 13211 requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions.
Although this policy is a significant
action under Executive Order 12866, it
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.
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) This policy will not ‘‘significantly
or uniquely’’ affect small governments.
A Small Government Agency Plan is not
required. We expect that this policy will
not result in any significant additional
expenditures by entities that develop
formalized conservation efforts.
(b) This policy will 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 imposes no
obligations on state, local, or tribal
governments (see Economic Analysis
below).
Takings
In accordance with Executive Order
12630, this policy does not have
significant takings implications. While
state, local or Tribal governments, or
private entities may choose to directly
or indirectly implement actions that
may have property implications, they
would do so as a result of their own
decisions, not as a result of this policy.
This policy has no provision that would
take private property.
Federalism
In accordance with Executive Order
13132, this policy does not have
significant Federalism effects. A
Federalism assessment is not required.
In keeping with Department of the
Interior and Commerce policy, we
requested information from and
coordinated development of this policy
with appropriate resource agencies
throughout the United States.

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Civil Justice Reform
In accordance with Executive Order
12988, this policy 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 policy, requirements
under section 4 of the Endangered
Species Act will be clarified to entities
that voluntarily develop formalized
conservation efforts.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This policy contains collection-ofinformation requirements subject to the
Paperwork Reduction Act (PRA) and
which have been approved by Office of
Management and Budget (OMB). The
FWS has OMB approval for the
collection under OMB Control Number
1018–0119, which expires on December
31, 2005. The NMFS has OMB approval
for the collection under OMB Control
Number 0648–0466, which expires on
December 31, 2005. 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.
Public reporting burden for FWS
collections of information is estimated
to average 2,500 hours for developing
one agreement with the intent to
preclude a listing, 320 hours for annual
monitoring under one agreement, and
80 hours for one annual report. The
FWS expects that six agreements with
the intent of making listing unnecessary
will be developed in one year and that
four of these will be successful in
making listing unnecessary, and
therefore, the entities who develop these
four agreements will carry through with
their monitoring and reporting
commitments. Public reporting burden
for NMFS collections of information is
estimated to average 2,500 hours for
developing one agreement with the
intent to preclude a listing, 320 hours
for annual monitoring under one
agreement, and 80 hours for one annual
report. The NMFS expects that two
agreements with the intent of making
listing unnecessary will be developed in
one year and that one of these will be
successful in making listing
unnecessary, and therefore, the entities
who develop this agreement will carry
through with their monitoring and
reporting commitments. These estimates
include the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding this burden
estimate, or any other aspect of this data

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collection, including suggestions for
reducing the burden, to the FWS and
NMFS (see ADDRESSES section of this
policy).
National Environmental Policy Act
We have analyzed this policy in
accordance with the criteria of the
National Environmental Policy Act
(NEPA), the Department of the Interior
Manual (318 DM 2.2(g) and 6.3(D)), and
National Oceanic and Atmospheric
Administration (NOAA) Administrative
Order 216–6. This policy does not
constitute a major Federal action
significantly affecting the quality of the
human environment. The FWS has
determined that the issuance of the
policy is categorically excluded under
the Department of the Interior’s NEPA
procedures in 516 DM 2, Appendix 1
(1.10) and 516 DM 6, Appendix 1.
NOAA has determined that the issuance
of this policy qualifies for a categorical
exclusion as defined by NOAA
Administrative Order 216–6,
Environmental Review Procedure.
ESA Section 7 Consultation
We have determined that issuance of
this policy will not affect species listed
as threatened or endangered under the
Endangered Species Act, and, therefore,
a section 7 consultation on this policy
is not required.
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), E.O.
13175, and the Department of Interior’s
512 DM 2, this policy does not directly
affect Tribal resources. The policy may
have an indirect effect on Native
American Tribes as the policy may
influence the type and content of
conservation plans and efforts
implemented by Tribes, or other
entities. The extent of this indirect effect
will be determined on a case-by-case
basis during our evaluation of
individual formalized conservation
efforts when we make a listing decision.
Under Secretarial Order 3206, we will,
at a minimum, share with the entity that
developed the formalized conservation
effort any information provided by the
Tribes, through the public comment
period for the listing decision or formal
submissions. During the development of
conservation plans, we can encourage
the incorporation of conservation efforts
that will restore or enhance Tribal trust
resources. After consultation with the
Tribes and the entity that developed the
formalized conservation effort and after

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careful consideration of the Tribe’s
concerns, we must clearly state the
rationale for the recommended final
listing decision and explain how the
decision relates to our trust
responsibility. Accordingly:
(a) We have not yet consulted with
the affected Tribe(s). We will address
this requirement when we evaluate
formalized conservation efforts that
have yet to be implemented or have
recently been implemented and have yet
to show effectiveness at the time we
make a listing decision.
(b) We have not yet worked with
Tribes on a government-to-government
basis. We will address this requirement
when we evaluate formalized
conservation efforts that have yet to be
implemented or have recently been
implemented but have yet to show
effectiveness at the time we make a
listing decision.
(c) We will consider Tribal views in
individual evaluations of formalized
conservation efforts.
(d) We have not yet consulted with
the appropriate bureaus and offices of
the Department about the identified
effects of this policy on Tribes. This
requirement will be addressed with
individual evaluations of formalized
conservation efforts.
Information Quality
In Accordance with section 515 of the
Treasury and General Government
Appropriations Act for Fiscal Year 2001
(Public Law 106–554), OMB directed
Federal agencies to issue and implement
guidelines to ensure and maximize the
quality, objectivity, utility, and integrity
of Government information
disseminated to the public (67 FR 8452).
Under our Information Quality
guidelines, if we use a conservation
plan or agreement as part of our
decision to either list or not list a
species under the Act, the plan or
agreement is considered to be
disseminated by us and these guidelines
apply to the plan or agreement. The
criteria outlined in this policy are
consistent with OMB, Department of
Commerce, NOAA, and Department of
the Interior. FWS information quality
guidelines. The Department of the
Interior’s guidelines can be found at
http://www.doi.gov/ocio/guidelines/
515Guides.pdf, and the FWS’s
guidelines can be found at http://
irm.fws.gov/infoguidelines/. The
Department of Commerce’s guidelines
can be found at http://
www.osec.doc.gov/cio/oipr/iqg.html,
and the NOAA/NMFS’s guidelines can
be found at http://
www.noaanews.noaa.gov/stories/iq.htm.
Under these guidelines, any affected

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person or organization may request from
FWS or NMFS, a correction of
information they believe to be incorrect
in the plan or agreement. ‘‘Affected
persons or organizations’’ are those who
may use, be benefitted by, or be harmed
by the disseminated information (i.e.,
the conservation plan or agreement).
The process for submitting a request for
correction of information is found in the
respective FWS and NOAA guidelines.
Economic Analysis
This policy identifies criteria that a
formalized conservation effort must
satisfy to ensure certainty of
implementation and effectiveness and
for us to determine that the conservation
effort contributes to making listing a
species unnecessary or contributes to
forming a basis for listing a species as
threatened rather than endangered. We
developed this policy to ensure
consistent and adequate evaluation of
agreements and plans when making
listing decisions. The policy will also
provide guidance to States and other
entities on how we will evaluate certain
formalized conservation efforts during
the listing process.
The criteria in this policy primarily
describe elements that are already
included in conservation efforts and
that constitute sound conservation
planning. For example, the criteria
requiring identification of responsible
parties, obtaining required
authorizations, establishment of
objectives, and inclusion of an
implementation schedule and
monitoring provisions are essential for
directing the implementation and
affirming the effectiveness of
conservation efforts. These kinds of
‘‘planning’’ requirements are generally
already included in conservation efforts
and do not establish any new
implementation burdens. Rather, these
requirements will help to ensure that
conservation efforts are well planned
and, therefore, increase the likelihood
that conservation efforts will ultimately
be successful in making listing species
unnecessary.
The development of an agreement or
plan by a state or other entity is
completely voluntary. However, when a
state or other entity voluntarily decides
to develop an agreement or plan with
the specific intent of making listing a
species unnecessary, the criteria
identified in this policy can be
construed as requirements placed on the
development of such agreements or
plans. The state or other entity must
satisfy these criteria in order to obtain
and retain the benefit they are seeking,
which is making listing of a species as
threatened or endangered unnecessary.

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The criteria in the policy require
demonstrating certainty of
implementation and effectiveness of
formalized conservation efforts. We
have always considered the certainty of
implementation and effectiveness of
conservation efforts when making
listing decisions. Therefore, we believe
that no economic effects on states and
other entities will result from using the
criteria in this policy as guidance.
Furthermore, publication of this
policy will have positive effects by
informing States and other entities of
the criteria we will use in evaluating
formalized conservation efforts when
making listing decisions, and thereby
guide states and other entities in
developing voluntary formalized
conservation efforts that will be
successful in making listing
unnecessary. Therefore, we believe that
informational benefits will result from
issuing this policy. We believe these
benefits, although important, will be
insignificant economically.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Policy for Evaluation of Conservation
Efforts When Making Listing Decisions
Policy Purpose
The Fish and Wildlife Service and
National Marine Fisheries Service
developed this policy to ensure
consistent and adequate evaluation of
formalized conservation efforts
(conservation efforts identified in
conservation agreements, conservation
plans, management plans, and similar
documents) when making listing
decisions under the Act. This policy
may also guide the development of
conservation efforts that sufficiently
improve a species’ status so as to make
listing the species as threatened or
endangered unnecessary.
Definitions
‘‘Adaptive management’’ is a method
for examining alternative strategies for
meeting measurable biological goals and
objectives, and then, if necessary,
adjusting future conservation
management actions according to what
is learned.
‘‘Agreements and plans’’ include
conservation agreements, conservation
plans, management plans, or similar
documents approved by Federal
agencies, State and local governments,
Tribal governments, businesses,
organizations, or individuals.
‘‘Candidate species,’’ as defined by
regulations at 50 CFR 424.02(b), means

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any species being considered for listing
as an endangered or a threatened
species, but not yet the subject of a
proposed rule. However, the FWS
includes as candidate species those
species for which the FWS has
sufficient information on file relative to
status and threats to support issuance of
proposed listing rules. The NMFS
includes as candidate species those
species for which it has information
indicating that listing may be warranted,
but for which sufficient information to
support actual proposed listing rules
may be lacking. The term ‘‘candidate
species’’ used in this policy refers to
those species designated as candidates
by either of the Services.
‘‘Conservation efforts,’’ for the
purpose of this policy, are specific
actions, activities, or programs designed
to eliminate or reduce threats or
otherwise improve the status of a
species. Conservation efforts may
involve restoration, enhancement,
maintenance, or protection of habitat;
reduction of mortality or injury; or other
beneficial actions.
‘‘Formalized conservation efforts’’ are
conservation efforts identified in a
conservation agreement, conservation
plan, management plan, or similar
document. An agreement or plan may
contain numerous conservation efforts.
Policy Scope
When making listing decisions, the
Services will evaluate whether
formalized conservation efforts
contribute to making it unnecessary to
list a species, or to list a species as
threatened rather than endangered. This
policy applies to those formalized
conservation efforts that have not yet
been implemented or have been
implemented, but have not yet
demonstrated whether they are effective
at the time of a listing decision. We will
make this evaluation based on the
certainty of implementing the
conservation effort and the certainty
that the effort will be effective. This
policy identifies the criteria we will use
to help determine the certainty of
implementation and effectiveness.
Listing decisions covered by the policy
include findings on petitions to list
species, and decisions on whether to
assign candidate status, remove
candidate status, issue proposed listing
rules, and finalize or withdraw
proposed listing rules. This policy
applies to formalized conservation
efforts developed with or without a
specific intent to influence a listing
decision and with or without the
involvement of the Services.
Section 4(a)(1) of the Endangered
Species Act of 1973, as amended (16

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U.S.C. 1533(a)(1)), states that we must
determine whether a species is
threatened or endangered because of
any of the following five factors:(A) the
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence.
Although this language focuses on
impacts negatively affecting a species,
section 4(b)(1)(A) requires us also to
‘‘tak[e] into account those efforts, if any,
being made by any State or foreign
nation, or any political subdivision of a
State or foreign nation, to protect such
species, whether by predator control,
protection of habitat and food supply, or
other conservation practices, within any
area under its jurisdiction, or on the
high seas.’’ Read together, sections
4(a)(1) and 4(b)(1)(A), as reflected in our
regulations at 50 CFR 424.11(f), require
us to take into account any State or local
laws, regulations, ordinances, programs,
or other specific conservation measures
that either positively or negatively affect
a species’ status (i.e., measures that
create, exacerbate, reduce, or remove
threats identified through the section
4(a)(1) analysis). The manner in which
the section 4(a)(1) factors are framed
supports this conclusion. Factor (D) for
example—ldquo;the inadequacy of
existing regulatory mechanisms’’—
indicates that overall we might find
existing regulatory mechanisms
adequate to justify a determination not
to list a species.
Factor (E) in section 4(a)(1) (any
‘‘manmade factors affecting [the
species’] continued existence’’) requires
us to consider the pertinent laws,
regulations, programs, and other
specific actions of any entity that either
positively or negatively affect the
species. Thus, the analysis outlined in
section 4 of the Act requires us to
consider the conservation efforts of not
only State and foreign governments but
also of Federal agencies, Tribal
governments, businesses, organizations,
or individuals that positively affect the
species’ status.
While conservation efforts are often
informal, such as when a property
owner implements conservation
measures for a species simply because
of concern for the species or interest in
protecting its habitat, and without any
specific intent to affect a listing
decision, conservation efforts are often
formalized in conservation agreements,
conservation plans, management plans,
or similar documents. The development

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15113

and implementation of such agreements
and plans has been an effective
mechanism for conserving declining
species and has, in some instances,
made listing unnecessary. These efforts
are consistent with the Act’s finding
that ‘‘encouraging the States and other
interested parties * * * to develop and
maintain conservation programs * * *
is a key * * * to better safeguarding, for
the benefit of all citizens, the Nation’s
heritage in fish, wildlife, and plants’’
(16 U.S.C. 1531 (a)(5)).
In some situations, a listing decision
must be made before all formalized
conservation efforts have been
implemented or before an effort has
demonstrated effectiveness. We may
determine that a formalized
conservation effort that has not yet been
implemented has reduced or removed a
threat to a species when we have
sufficient certainty that the effort will be
implemented and will be effective.
Determining whether a species meets
the definition of threatened or
endangered requires us to analyze a
species’ risk of extinction. Central to
this risk analysis is an assessment of the
status of the species (i.e., is it in decline
or at risk of decline and at what rate is
the decline or risk of decline) and
consideration of the likelihood that
current or future conditions or actions
will promote (see section 4(b)(1)(A)) or
threaten a species’ persistence. This
determination requires us to make a
prediction about the future persistence
of a species, including consideration of
both future negative and positive effects
of anticipated human actions. The
language of the Act supports this
approach. The definitions for both
‘‘endangered species’’ and ‘‘threatened
species’’ connote future condition,
which indicates that consideration of
whether a species should be listed
depends in part on identification and
evaluation of future actions that will
reduce or remove, as well as create or
exacerbate, threats to the species. The
first factor in section 4(a)(1)—‘‘the
present or threatened destruction,
modification, or curtailment of [the
species’] habitat or range’’—identifies
how analysis of both current actions
affecting a species’ habitat or range and
those actions that are sufficiently certain
to occur in the future and affect a
species’ habitat or range are necessary to
assess a species’ status. However, future
Federal, State, local, or private actions
that affect a species are not limited to
actions that will affect a species’ habitat
or range. Congress did not intend for us
to consider future actions affecting a
species’ habitat or range, yet ignore
future actions that will influence
overutilization, disease, predation,

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Federal Register / Vol. 68, No. 60 / Friday, March 28, 2003 / Rules and Regulations

regulatory mechanisms, or other natural
or manmade factors. Therefore, we
construe Congress’ intent, as reflected
by the language of the Act, to require us
to consider both current actions that
affect a species’ status and sufficiently
certain future actions—either positive or
negative—that affect a species’ status.
As part of our assessment of future
conditions, we will determine whether
a formalized conservation effort that has
yet to be implemented or has recently
been implemented but has yet to show
effectiveness provides a high level of
certainty that the effort will be
implemented and/or effective and
results in the elimination or adequate
reduction of the threats.
For example, if a state recently
designed and approved a program to
eliminate collection of a reptile being
considered for listing, we must assess
how this program affects the status of
the species. Since the program was just
designed, an implementation and
effectiveness record may not yet exist.
Therefore, we must evaluate the
likelihood, or certainty, that it will be
implemented and effective, using
evidence such as the State’s ability to
enforce new regulations, educate the
public, monitor compliance, and
monitor the effects of the program on
the species. Consequently, we would
determine that the program reduces the
threat of overutilization of the species
through collecting if we found sufficient
certainty that the program would be
implemented and effective.
In another example, a state could have
a voluntary incentive program for
protection and restoration of riparian
habitat that includes providing
technical and financial assistance for
fencing to exclude livestock. Since the
state has already implemented the
program, the state does not need to
provide certainty that it will be
implemented. If the program was only
recently implemented and no record of
the effects of the program on the
species’ status existed, we would
evaluate the effectiveness of this
voluntary program at the time of our
listing decision. To assess the
effectiveness, we would evaluate the
level of participation (e.g., number of
participating landowners or number of
stream-miles fenced), the length of time
of the commitment by landowners, and
whether the program reduces the threats
on the species. We would determine
that the program reduces the threat of
habitat loss and degradation if we find
sufficient certainty that the program is
effective.
In addition, we will consider the
estimated length of time that it will take
for a formalized conservation effort to

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produce a positive effect on the species.
In some cases, the nature, severity, and/
or imminence of threats to a species
may be such that a formalized
conservation effort cannot be expected
to produce results quickly enough to
make listing unnecessary since we must
determine at the time of the listing
decision that the conservation effort has
improved the status of the species.
Federal agencies, Tribal governments,
state and local governments, businesses,
organizations, or individuals
contemplating development of an
agreement or plan should be aware that,
because the Act mandates specific
timeframes for making listing decisions,
we cannot delay the listing process to
allow additional time to complete the
development of an agreement or plan.
Nevertheless, we encourage the
development of agreements and plans
even if they will not be completed prior
to a final listing decision. Such an
agreement or plan could serve as the
foundation for a special rule under
section 4(d) of the Act, which would
establish only those prohibitions
necessary and advisable for the
conservation of a threatened species, or
for a recovery plan, and could lead to
earlier recovery and delisting.
This policy provides us guidance for
evaluating the certainty of
implementation and effectiveness of
formalized conservation efforts. This
policy is not intended to provide
guidance for determining the specific
level of conservation (e.g., number of
populations or individuals) or the types
of conservation efforts (e.g., habitat
restoration, local regulatory
mechanisms) specifically needed to
make listing particular species
unnecessary and does not provide
guidance for determining when parties
should enter into agreements. We do
encourage early coordination in
conservation measures to prevent the
species from meeting the definition of
endangered or threatened.
If we make a decision not to list a
species or to list the species as
threatened rather than endangered
based in part on the contributions of a
formalized conservation effort, we will
track the status of the effort including
the progress of implementation and
effectiveness of the conservation effort.
If any of the following occurs: (1) a
failure to implement the conservation
effort in accordance with the
implementation schedule; (2) a failure
to achieve objectives; (3) a failure to
modify the conservation effort to
adequately address an increase in the
severity of a threat or to address other
new information on threats; or (4) we
receive any other new information

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indicating a possible change in the
status of the species, then we will
reevaluate the status of the species and
consider whether initiating the listing
process is necessary. Initiating the
listing process may consist of
designating the species as a candidate
species and assigning a listing priority,
issuing a proposed rule to list, issuing
a proposed rule to reclassify, or issuing
an emergency listing rule. In some
cases, even if the parties fully
implement all of the conservation efforts
outlined in a particular agreement or
plan, we may still need to list the
species. For example, this may occur if
conservation efforts only cover a portion
of a species’ range where the species
needed to be conserved, or a particular
threat to a species was not anticipated
or addressed at all, or not adequately
addressed, in the agreement or plan.
Evaluation Criteria
Conservation agreements,
conservation plans, management plans,
and similar documents generally
identify numerous conservation efforts
(i.e., actions, activities, or programs) to
benefit the species. In determining
whether a formalized conservation effort
contributes to forming a basis for not
listing a species, or for listing a species
as threatened rather than endangered,
we must evaluate whether the
conservation effort improves the status
of the species under the Act. Two
factors are key in that evaluation: (1) for
those efforts yet to be implemented, the
certainty that the conservation effort
will be implemented and (2) for those
efforts that have not yet demonstrated
effectiveness, the certainty that the
conservation effort will be effective.
Because the certainty of implementation
and effectiveness of formalized
conservation efforts may vary, we will
evaluate each effort individually and
use the following criteria to direct our
analysis.
A. The certainty that the conservation
effort will be implemented:
1. The conservation effort, the
party(ies) to the agreement or plan that
will implement the effort, and the
staffing, funding level, funding source,
and other resources necessary to
implement the effort are identified. 2.
The legal authority of the party(ies) to
the agreement or plan to implement the
formalized conservation effort, and the
commitment to proceed with the
conservation effort are described.3. The
legal procedural requirements (e.g.
environmental review) necessary to
implement the effort are described, and
information is provided indicating that
fulfillment of these requirements does

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not preclude commitment to the effort.
4. Authorizations (e.g., permits,
landowner permission) necessary to
implement the conservation effort are
identified, and a high level of certainty
is provided that the party(ies) to the
agreement or plan that will implement
the effort will obtain these
authorizations. 5. The type and level of
voluntary participation (e.g., number of
landowners allowing entry to their land,
or number of participants agreeing to
change timber management practices
and acreage involved) necessary to
implement the conservation effort is
identified, and a high level of certainty
is provided that the party(ies) to the
agreement or plan that will implement
the conservation effort will obtain that
level of voluntary participation (e.g., an
explanation of how incentives to be
provided will result in the necessary
level of voluntary participation). 6.
Regulatory mechanisms (e.g., laws,
regulations, ordinances) necessary to
implement the conservation effort are in
place. 7. A high level of certainty is
provided that the party(ies) to the
agreement or plan that will implement
the conservation effort will obtain the
necessary funding. 8. An
implementation schedule (including
incremental completion dates) for the
conservation effort is provided. 9. The
conservation agreement or plan that
includes the conservation effort is
approved by all parties to the agreement
or plan.
B. The certainty that the conservation
effort will be effective:
1. The nature and extent of threats
being addressed by the conservation
effort are described, and how the
conservation effort reduces the threats is
described. 2. Explicit incremental
objectives for the conservation effort
and dates for achieving them are stated.
3. The steps necessary to implement the
conservation effort are identified in
detail. 4. Quantifiable, scientifically
valid parameters that will demonstrate
achievement of objectives, and
standards for these parameters by which
progress will be measured, are
identified. 5. Provisions for monitoring
and reporting progress on
implementation (based on compliance
with the implementation schedule) and
effectiveness (based on evaluation of
quantifiable parameters) of the
conservation effort are provided.6.
Principles of adaptive management are
incorporated.
These criteria should not be
considered comprehensive evaluation
criteria. The certainty of
implementation and effectiveness of a
formalized conservation effort may also

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depend on species-specific, habitatspecific, location-specific, and effortspecific factors. We will consider all
appropriate factors in evaluating
formalized conservation efforts. The
specific circumstances will also
determine the amount of information
necessary to satisfy these criteria.
To consider that a formalized
conservation effort(s) contributes to
forming a basis for not listing a species
or listing a species as threatened rather
than endangered, we must find that the
conservation effort is sufficiently certain
to be implemented and effective so as to
have contributed to the elimination or
adequate reduction of one or more
threats to the species identified through
the section 4(a)(1) analysis. The
elimination or adequate reduction of
section 4(a)(1) threats may lead to a
determination that the species does not
meet the definition of threatened or
endangered, or is threatened rather than
endangered. An agreement or plan may
contain numerous conservation efforts,
not all of which are sufficiently certain
to be implemented and effective. Those
conservation efforts that are not
sufficiently certain to be implemented
and effective cannot contribute to a
determination that listing is
unnecessary or a determination to list as
threatened rather than endangered.
Regardless of the adoption of a
conservation agreement or plan,
however, if the best available scientific
and commercial data indicate that the
species meets the definition of
‘‘endangered species’’ or ‘‘threatened
species’’ on the day of the listing
decision, then we must proceed with
appropriate rule-making activity under
section 4 of the Act.
Dated: September 16, 2002.
Steve Williams,
Director, Fish and Wildlife Service.
December 23, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries,
National Marine Fisheries Services.
[FR Doc. 03–7364 Filed 3–27–03; 8:45 am]
BILLING CODES 4310–55–S and 3510–22–S

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 021212306–2306–01; I.D.
032403A]

Fisheries of the Exclusive Economic
Zone Off Alaska; Pollock in Statistical
Area 610 of the Gulf of Alaska
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Modification of a closure.
SUMMARY: NMFS is reopening directed
fishing for pollock in Statistical Area
610 of the Gulf of Alaska (GOA) for 24
hours. This action is necessary to fully
use the B season allowance of the total
allowable catch (TAC) of pollock
specified for Statistical Area 610.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), March 26, 2003, through
1200 hrs, A.l.t., March 27, 2003.
FOR FURTHER INFORMATION CONTACT:
Mary Furuness, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the MagnusonStevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50
CFR part 600 and 50 CFR part 679.
NMFS closed the B season directed
fishery for pollock in Statistical Area
610 of the GOA under § 679.20(d)(1)(iii)
on March 19, 2003 (68 FR 13857, March
21, 2003).
NMFS has determined that,
approximately 986 mt of pollock remain
in the B season directed fishing
allowance. Therefore, in accordance
with 679.25(a)(2)(i)(C) and (a)(2)(iii)(D),
and to fully utilize the B season
allowance of pollock TAC specified for
Statistical Area 610, NMFS is
terminating the previous closure and is
reopening directed fishing for pollock in
Statistical Area 610 of the GOA. In
accordance with § 679.20(d)(1)(iii), the
Regional Administrator finds that this
directed fishing allowance will be
reached after 24 hours. Consequently,
NMFS is prohibiting directed fishing for
pollock in Statistical Area 610 of the
GOA effective 1200 hrs, A.l.t., March 27,
2003.

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