81_FR_8697 81 FR 8663 - Revised Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities

81 FR 8663 - Revised Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 34 (February 22, 2016)

Page Range8663-8665
FR Document2016-03541

The Fish and Wildlife Service and National Marine Fisheries Service announce an interagency policy to clarify the role of State agencies in activities undertaken by the Services under authority of the Endangered Species Act of 1973, as amended, and associated regulations. The policy, which is a revision of a policy issued in 1994, reflects a renewed commitment by the Services and State fish and wildlife agencies to work together in conserving America's imperiled wildlife.

Federal Register, Volume 81 Issue 34 (Monday, February 22, 2016) 
[Federal Register Volume 81, Number 34 (Monday, February 22, 2016)]
[Rules and Regulations]
[Pages 8663-8665]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-03541]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Chapter IV

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Chapter IV

[FWS-HQ-ES-2016-N017; FF09E00000 167 FXES11130900000]


Revised Interagency Cooperative Policy Regarding the Role of 
State Agencies in Endangered Species Act Activities

AGENCY: Fish and Wildlife Service, Interior, and National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration 
(NOAA), Commerce.

ACTION: Notice of policy revision.

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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries 
Service announce an interagency policy to clarify the role of State 
agencies in activities undertaken by the Services under authority of 
the Endangered Species Act of 1973, as amended, and associated 
regulations. The policy, which is a revision of a policy issued in 
1994, reflects a renewed commitment by the Services and State fish and 
wildlife agencies to work together in conserving America's imperiled 
wildlife.

DATES: February 22, 2016.

FOR FURTHER INFORMATION CONTACT: Gary Frazer, Assistant Director for 
Ecological Services, U.S. Fish and Wildlife Service, 18th and C Streets 
NW., Washington, DC 20240; telephone 202/208-4646; facsimile 703/358-
5618, or Angela Somma, Chief, Endangered Species Division, National 
Marine Fisheries Service, 1355 East-West Highway, Silver Spring, 
Maryland 20910; telephone 301/427-8403; facsimile 301/713-0376. If you 
use a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Congress enacted the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (ESA or Act), to establish a program for the 
conservation of endangered and threatened species and the ecosystems on 
which they depend. The Secretaries of the Interior and Commerce 
(hereafter referred to as ``the Secretaries'') have the responsibility 
for administering the ESA. The Secretaries have delegated this 
responsibility to the U.S. Fish and Wildlife Service of the Department 
of the Interior and the National Marine Fisheries Service of the 
Department of Commerce (hereafter referred to as ``the Services'').
    The Services recognize that, in the exercise of their general 
governmental powers, States possess broad trustee and police powers 
over fish, wildlife, and plants and their habitats within their 
borders. Unless preempted by Federal authority, States possess primary 
authority and responsibility for protection and management of fish, 
wildlife, and plants and their habitats.
    State agencies often possess scientific data and valuable expertise 
on the status and distribution of endangered, threatened, and candidate 
species of wildlife and plants. State agencies, because of their 
authorities and their close working relationships with local 
governments and landowners, are in a unique position to assist the 
Services in implementing all aspects of the Act. In this regard, 
section 6 of the Act provides that the Services shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. The term State agency means any State agency, 
department, board, commission, or other governmental entity that is 
responsible for the management and conservation of fish, plant, or 
wildlife resources within a State.

[[Page 8664]]

State Involvement

    In 1994, the Services published a policy regarding the role of 
State fish and wildlife agencies in implementing the ESA (59 FR 34275; 
July 1, 1994). That policy has been available on the Services' Web 
sites. We are now updating and revising that policy. The updated 
policy, developed in coordination with the State fish and wildlife 
agencies, reaffirms the commitment for engagement and collaboration 
between the Services and State fish and wildlife agencies on many 
aspects of ESA implementation, with the understanding that this 
collaboration is undertaken in the context of the ESA's statutory 
timelines.
    The revised policy reflects a renewed commitment by the Services 
and State fish and wildlife agencies to work together in conserving 
America's imperiled wildlife. The revised policy also references the 
suite of ESA conservation tools not available or in common use when the 
policy was originally developed in 1994. These tools include Habitat 
Conservation Plans, Candidate Conservation Agreements with Assurances, 
and Safe Harbor Agreements. All of these tools are set forth in 
regulations in title 50 of the Code of Federal Regulations in part 17.
    Changes to the policy include more proactive conservation of 
imperiled species before they require protections of the ESA, expanded 
opportunities for engagement on listing and recovery activities, and 
improved planning with State agencies across a species' range. The 
revised policy follows:

Policy Regarding the Role of State Agencies in Endangered Species Act 
Activities

    Section 6 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (ESA), directs the Secretaries of the Interior and 
Commerce to cooperate to the maximum extent practicable with the States 
in carrying out ESA programs. In furtherance of this provision of the 
law, it is the policy of the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service to involve State agencies as 
described in the items listed below for the following ESA activities:

A. Prelisting Conservation

    1. Use the expertise and solicit the information of State agencies 
in determining which species should be included on the list of 
candidate animal and plant species.
    2. Use the expertise and solicit the information of State agencies 
in conducting population status inventories and geographical 
distribution surveys to determine which species warrant listing.
    3. Use the expertise of State agencies in designing and 
implementing prelisting stabilization actions, consistent with their 
authorities, for species and habitat to remove or alleviate threats so 
that the listing priority is reduced or listing as endangered or 
threatened is not warranted. Encourage collaborative conservation 
planning with State agencies across the range of a species, including, 
as appropriate, through State Wildlife Action Plans, and work 
collaboratively with State agencies to facilitate voluntary 
conservation actions on behalf of species before they reach the point 
at which they need to be listed as threatened or endangered under the 
Act.
    4. Work collaboratively with State agencies to design and encourage 
the use of Candidate Conservation Agreements with Assurances to provide 
non-Federal landowners with incentives for engaging in voluntary 
proactive conservation of species that are candidates for listing under 
the Act.

B. Listing

    1. Use the expertise of, and coordinate and collaborate with, State 
agencies in developing the scientific foundation upon which the 
Services base their determinations for listing actions, including: 12-
month petition findings; proposed and final listing rules; section 4(d) 
rules that specify the prohibitions necessary and advisable for the 
conservation of species listed as threatened; proposed and final 
critical habitat designations; and proposed and final rules to change 
the status of a species from endangered to threatened (or vice versa) 
or to remove a species from the list.
    2. Provide notification to State agencies of any proposed 
regulation in accordance with provisions of the Act and coordinate with 
State agencies in developing any work plans for future listing 
activities.

C. Consultation

    1. Inform State agencies of any Federal agency action that is 
likely to adversely affect listed species or designated critical 
habitat, or that is likely to adversely affect species proposed for 
listing or proposed critical habitat, and request relevant information 
from them, including the results of any related studies, in analyzing 
the effects of the action and cumulative effects on the species and 
habitat.
    2. Request an information update from State agencies prior to 
preparing the final biological opinion to ensure that the findings and 
recommendations are based on the best scientific and commercial data 
available.
    3. Recommend to Federal agencies that they provide State agencies 
with copies of the final biological opinion unless the information 
related to the consultation is protected by national security 
classification or is confidential business information. Decisions to 
release such classified or confidential business information shall 
follow the action agency's procedures. Biological opinions not 
containing such classified or confidential business information will be 
provided to the State agencies by the Services, if not provided by the 
action agency, after 10 working days. The exception to this waiting 
period allows simultaneous provision of copies when there is a joint 
Federal-State consultation action.

D. Habitat Conservation Planning

    1. Use the expertise and solicit the information and participation 
of State agencies in all aspects of the habitat conservation planning 
process.
    2. Work collaboratively with State agencies to the maximum extent 
practicable to advance efficiency and avoid duplication of effort when 
the Services and the States both have similar authority for permitting 
activities related to threatened and endangered species.

E. Recovery

    1. Use the expertise and solicit the information and participation 
of State agencies in all aspects of the recovery planning process for 
all species under their jurisdiction.
    2. Use the expertise and solicit the information and participation 
of State agencies in implementing recovery plans for listed species. 
State agencies have the capabilities to carry out many of the actions 
identified in recovery plans and are in an excellent position to do so 
because of their close working relationships with local governments and 
landowners.
    3. Recognize and use the expertise and authority of State agencies 
in designing and implementing monitoring programs for species that have 
been removed from the Lists of Endangered and Threatened Wildlife and 
Plants. Unless preempted by Federal authority (e.g., Marine Mammal 
Protection Act, Bald and Golden Eagle Protection Act), States possess 
primary authority and responsibility for protection and management of 
fish, wildlife, and plants and their habitats, and are in an

[[Page 8665]]

excellent position to provide for the conservation of these species 
following their removal from the lists.
    4. Work collaboratively with State agencies to design and encourage 
the use of Safe Harbor Agreements to assist in recovery of listed 
species.

Authors

    The primary authors of this draft policy are the staff members of 
the Ecological Services Program, U.S. Fish and Wildlife Service, 5275 
Leesburg Pike, Falls Church, VA 22041 and staff members of the 
Endangered Species Division, National Marine Fisheries Service, 1355 
East-West Highway, Silver Spring, Maryland 20910.

Authority

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

    Dated: February 5, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
    Dated: February 10, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2016-03541 Filed 2-19-16; 8:45 am]
BILLING CODE 4333-15-P

Federal Register / Vol. 81, No. 34 / Monday, February 22, 2016 / Rules and Regulations 8663 under FFDCA section 408(d), such as PART 180—[AMENDED] FOR FURTHER INFORMATION CONTACT: Gary the tolerance in this final rule, do not Frazer, Assistant Director for Ecological require the issuance of a proposed rule, ■ 1. The authority citation for part 180 Services, U.S. Fish and Wildlife Service, the requirements of the Regulatory continues to read as follows: 18th and C Streets NW., Washington, Flexibility Act (RFA) (5 U.S.C. 601 et Authority: 21 U.S.C. 321(q), 346a and 371. DC 20240; telephone 202/208–4646; seq.), do not apply. facsimile 703/358–5618, or Angela This action directly regulates growers, ■ 2. In § 180.510, revise the entry for tea Somma, Chief, Endangered Species food processors, food handlers, and food in the table in paragraph (a)(1) to read Division, National Marine Fisheries retailers, not States or tribes, nor does as follows: Service, 1355 East-West Highway, Silver this action alter the relationships or § 180.510 Pyriproxyfen; tolerances for Spring, Maryland 20910; telephone 301/ distribution of power and residues. 427–8403; facsimile 301/713–0376. If responsibilities established by Congress (a) * * * you use a telecommunications device in the preemption provisions of FFDCA (1) * * * for the deaf (TDD), call the Federal section 408(n)(4). As such, the Agency Information Relay Service (FIRS) at has determined that this action will not Parts per 800–877–8339. have a substantial direct effect on States Commodity million or tribal governments, on the SUPPLEMENTARY INFORMATION: relationship between the national * * * * * Background government and the States or tribal governments, or on the distribution of Tea ........................................ 15 Congress enacted the Endangered power and responsibilities among the * * * * * Species Act of 1973, as amended (16 various levels of government or between U.S.C. 1531 et seq.) (ESA or Act), to the Federal Government and Indian * * * * * establish a program for the conservation tribes. Thus, the Agency has determined [FR Doc. 2016–03608 Filed 2–19–16; 8:45 am] of endangered and threatened species that Executive Order 13132, entitled BILLING CODE 6560–50–P and the ecosystems on which they ‘‘Federalism’’ (64 FR 43255, August 10, depend. The Secretaries of the Interior 1999) and Executive Order 13175, and Commerce (hereafter referred to as entitled ‘‘Consultation and Coordination ‘‘the Secretaries’’) have the DEPARTMENT OF THE INTERIOR with Indian Tribal Governments’’ (65 FR responsibility for administering the 67249, November 9, 2000) do not apply Fish and Wildlife Service ESA. The Secretaries have delegated to this action. In addition, this action this responsibility to the U.S. Fish and does not impose any enforceable duty or 50 CFR Chapter IV Wildlife Service of the Department of contain any unfunded mandate as the Interior and the National Marine described under Title II of the Unfunded DEPARTMENT OF COMMERCE Fisheries Service of the Department of Mandates Reform Act (UMRA) (2 U.S.C. Commerce (hereafter referred to as ‘‘the 1501 et seq.). National Oceanic and Atmospheric Services’’). This action does not involve any Administration technical standards that would require The Services recognize that, in the Agency consideration of voluntary exercise of their general governmental 50 CFR Chapter IV powers, States possess broad trustee and consensus standards pursuant to section 12(d) of the National Technology [FWS–HQ–ES–2016–N017; FF09E00000 167 police powers over fish, wildlife, and Transfer and Advancement Act FXES11130900000] plants and their habitats within their (NTTAA) (15 U.S.C. 272 note). borders. Unless preempted by Federal Revised Interagency Cooperative authority, States possess primary VII. Congressional Review Act Policy Regarding the Role of State authority and responsibility for Pursuant to the Congressional Review Agencies in Endangered Species Act protection and management of fish, Act (5 U.S.C. 801 et seq.), EPA will Activities wildlife, and plants and their habitats. submit a report containing this rule and AGENCY: Fish and Wildlife Service, State agencies often possess scientific other required information to the U.S. Interior, and National Marine Fisheries data and valuable expertise on the status Senate, the U.S. House of Service, National Oceanic and and distribution of endangered, Representatives, and the Comptroller Atmospheric Administration (NOAA), threatened, and candidate species of General of the United States prior to Commerce. wildlife and plants. State agencies, publication of the rule in the Federal because of their authorities and their ACTION: Notice of policy revision. Register. This action is not a ‘‘major close working relationships with local rule’’ as defined by 5 U.S.C. 804(2). SUMMARY: The Fish and Wildlife Service governments and landowners, are in a List of Subjects in 40 CFR Part 180 and National Marine Fisheries Service unique position to assist the Services in announce an interagency policy to implementing all aspects of the Act. In Environmental protection, clarify the role of State agencies in this regard, section 6 of the Act provides Administrative practice and procedure, activities undertaken by the Services that the Services shall cooperate to the Agricultural commodities, Pesticides under authority of the Endangered maximum extent practicable with the and pests, Reporting and recordkeeping Species Act of 1973, as amended, and States in carrying out programs requirements. mstockstill on DSK4VPTVN1PROD with RULES associated regulations. The policy, authorized by the Act. The term State Dated: February 4, 2016. which is a revision of a policy issued in agency means any State agency, Susan Lewis, 1994, reflects a renewed commitment by department, board, commission, or Director, Registration Division, Office of the Services and State fish and wildlife other governmental entity that is Pesticide Programs. agencies to work together in conserving responsible for the management and Therefore, 40 CFR chapter I is America’s imperiled wildlife. conservation of fish, plant, or wildlife amended as follows: DATES: February 22, 2016. resources within a State. VerDate Sep<11>2014 16:09 Feb 19, 2016 Jkt 238001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\22FER1.SGM 22FER1

8664 Federal Register / Vol. 81, No. 34 / Monday, February 22, 2016 / Rules and Regulations State Involvement conducting population status 2. Request an information update In 1994, the Services published a inventories and geographical from State agencies prior to preparing policy regarding the role of State fish distribution surveys to determine which the final biological opinion to ensure and wildlife agencies in implementing species warrant listing. that the findings and recommendations 3. Use the expertise of State agencies are based on the best scientific and the ESA (59 FR 34275; July 1, 1994). in designing and implementing commercial data available. That policy has been available on the prelisting stabilization actions, 3. Recommend to Federal agencies Services’ Web sites. We are now that they provide State agencies with consistent with their authorities, for updating and revising that policy. The species and habitat to remove or copies of the final biological opinion updated policy, developed in alleviate threats so that the listing unless the information related to the coordination with the State fish and priority is reduced or listing as consultation is protected by national wildlife agencies, reaffirms the endangered or threatened is not security classification or is confidential commitment for engagement and warranted. Encourage collaborative business information. Decisions to collaboration between the Services and conservation planning with State release such classified or confidential State fish and wildlife agencies on many agencies across the range of a species, business information shall follow the aspects of ESA implementation, with including, as appropriate, through State action agency’s procedures. Biological the understanding that this Wildlife Action Plans, and work opinions not containing such classified collaboration is undertaken in the collaboratively with State agencies to or confidential business information context of the ESA’s statutory timelines. facilitate voluntary conservation actions will be provided to the State agencies by The revised policy reflects a renewed on behalf of species before they reach the Services, if not provided by the commitment by the Services and State the point at which they need to be listed action agency, after 10 working days. fish and wildlife agencies to work as threatened or endangered under the The exception to this waiting period together in conserving America’s Act. allows simultaneous provision of copies imperiled wildlife. The revised policy 4. Work collaboratively with State when there is a joint Federal-State also references the suite of ESA agencies to design and encourage the consultation action. conservation tools not available or in use of Candidate Conservation common use when the policy was Agreements with Assurances to provide D. Habitat Conservation Planning originally developed in 1994. These non-Federal landowners with incentives 1. Use the expertise and solicit the tools include Habitat Conservation for engaging in voluntary proactive information and participation of State Plans, Candidate Conservation conservation of species that are agencies in all aspects of the habitat Agreements with Assurances, and Safe candidates for listing under the Act. conservation planning process. Harbor Agreements. All of these tools 2. Work collaboratively with State are set forth in regulations in title 50 of B. Listing agencies to the maximum extent the Code of Federal Regulations in part 1. Use the expertise of, and coordinate practicable to advance efficiency and 17. and collaborate with, State agencies in avoid duplication of effort when the Changes to the policy include more developing the scientific foundation Services and the States both have proactive conservation of imperiled upon which the Services base their similar authority for permitting species before they require protections determinations for listing actions, activities related to threatened and of the ESA, expanded opportunities for including: 12-month petition findings; endangered species. engagement on listing and recovery proposed and final listing rules; section activities, and improved planning with 4(d) rules that specify the prohibitions E. Recovery State agencies across a species’ range. necessary and advisable for the 1. Use the expertise and solicit the The revised policy follows: conservation of species listed as information and participation of State threatened; proposed and final critical agencies in all aspects of the recovery Policy Regarding the Role of State planning process for all species under Agencies in Endangered Species Act habitat designations; and proposed and final rules to change the status of a their jurisdiction. Activities 2. Use the expertise and solicit the species from endangered to threatened Section 6 of the Endangered Species (or vice versa) or to remove a species information and participation of State Act of 1973, as amended (16 U.S.C. 1531 from the list. agencies in implementing recovery et seq.) (ESA), directs the Secretaries of 2. Provide notification to State plans for listed species. State agencies the Interior and Commerce to cooperate agencies of any proposed regulation in have the capabilities to carry out many to the maximum extent practicable with accordance with provisions of the Act of the actions identified in recovery the States in carrying out ESA programs. and coordinate with State agencies in plans and are in an excellent position to In furtherance of this provision of the developing any work plans for future do so because of their close working law, it is the policy of the U.S. Fish and listing activities. relationships with local governments Wildlife Service and the National and landowners. Marine Fisheries Service to involve C. Consultation 3. Recognize and use the expertise State agencies as described in the items 1. Inform State agencies of any and authority of State agencies in listed below for the following ESA Federal agency action that is likely to designing and implementing monitoring activities: adversely affect listed species or programs for species that have been designated critical habitat, or that is removed from the Lists of Endangered A. Prelisting Conservation likely to adversely affect species and Threatened Wildlife and Plants. mstockstill on DSK4VPTVN1PROD with RULES 1. Use the expertise and solicit the proposed for listing or proposed critical Unless preempted by Federal authority information of State agencies in habitat, and request relevant (e.g., Marine Mammal Protection Act, determining which species should be information from them, including the Bald and Golden Eagle Protection Act), included on the list of candidate animal results of any related studies, in States possess primary authority and and plant species. analyzing the effects of the action and responsibility for protection and 2. Use the expertise and solicit the cumulative effects on the species and management of fish, wildlife, and plants information of State agencies in habitat. and their habitats, and are in an VerDate Sep<11>2014 16:09 Feb 19, 2016 Jkt 238001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\22FER1.SGM 22FER1

Federal Register / Vol. 81, No. 34 / Monday, February 22, 2016 / Rules and Regulations 8665 excellent position to provide for the and Wildlife Service, 5275 Leesburg Dated: February 5, 2016. conservation of these species following Pike, Falls Church, VA 22041 and staff Daniel M. Ashe, their removal from the lists. members of the Endangered Species Director, U.S. Fish and Wildlife Service. 4. Work collaboratively with State Division, National Marine Fisheries Dated: February 10, 2016. agencies to design and encourage the Service, 1355 East-West Highway, Silver Eileen Sobeck, use of Safe Harbor Agreements to assist Spring, Maryland 20910. Assistant Administrator for Fisheries, in recovery of listed species. National Marine Fisheries Service. Authority Authors [FR Doc. 2016–03541 Filed 2–19–16; 8:45 am] The primary authors of this draft The authority for this action is the BILLING CODE 4333–15–P policy are the staff members of the Endangered Species Act of 1973, as Ecological Services Program, U.S. Fish amended (16 U.S.C. 1531 et seq.). mstockstill on DSK4VPTVN1PROD with RULES VerDate Sep<11>2014 16:09 Feb 19, 2016 Jkt 238001 PO 00000 Frm 00027 Fmt 4700 Sfmt 9990 E:\FR\FM\22FER1.SGM 22FER1


Document Created: 2016-02-19 23:57:20
Document Modified: 2016-02-19 23:57:20
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionNotice of policy revision.
DatesFebruary 22, 2016.
ContactGary Frazer, Assistant Director for Ecological Services, U.S. Fish and Wildlife Service, 18th and C Streets NW., Washington, DC 20240; telephone 202/208-4646; facsimile 703/358- 5618, or Angela Somma, Chief, Endangered Species Division, National Marine Fisheries Service, 1355 East-West Highway, Silver Spring, Maryland 20910; telephone 301/427-8403; facsimile 301/713-0376. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
FR Citation81 FR 8663 
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