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http://www.epa.gov/fedrgstr/EPA-SPECIES/2008/August/Day-15/e18938.htm

Interagency Cooperation Under the Endangered Species Act

PDF Version (8 pp, 75K, About PDF)


[Federal Register: August 15, 2008 (Volume 73, Number 159)]
[Proposed Rules]
[Page 47868-47875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au08-20]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 402

[FWS-R9-ES-2008-0093]
RIN 1018-AT50

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[0808011023-81048-01]
RIN 0618-AX15

Interagency Cooperation Under the Endangered Species Act

AGENCIES: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, Commerce.

ACTION: Proposed rule.

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SUMMARY: The United States Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) (collectively, ``Services'' or
``we'') propose to amend regulations governing interagency cooperation
under the Endangered Species Act of 1973, as amended (Act). The
Services are proposing these changes to clarify several definitions, to
clarify when the section 7 regulations are applicable and the correct
standards for effects analysis, and to establish time frames for the
informal consultation process.

DATES: We must receive your comments by September 15, 2008 to ensure
their full consideration in the final decision on this proposal.

ADDRESSES: Submit your comments or materials concerning this proposed
rule in one of the following ways:
    (1) Through the Federal eRulemaking Portal at www.regulations.gov.
Follow the instructions on the Web site for submitting comments.
    (2) By U.S. mail or hand-delivery to Public Comment Processing,
Attention: 1018-AT50, Division of Policy and Directives Management,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222,
Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).

FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary for
Fish and Wildlife and Parks, 1849 C Street, NW., Washington, DC 20240;
telephone: 202-208-4416; or James H. Lecky, Director, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910; telephone: 301-713-2332.

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act of 1973, as amended (``Act''; 16 U.S.C.
1531 et seq.) provides that the Secretaries of the Interior and
Commerce (the ``Secretaries'') share responsibilities for implementing
most of the provisions of the Act. Generally, marine species are under
the jurisdiction of the Secretary of Commerce and all other species are
under the jurisdiction of the Secretary of the Interior. Authority to
administer the Act has been delegated by the Secretary of the Interior
to the Director of the FWS and by the Secretary of Commerce through the
Administrator of the National Oceanic and Atmospheric Administration to
the Assistant Administrator for NMFS.
    There have been no comprehensive amendments to the Act since 1988.
With the exception of two section 7 counterpart regulations for
specific types of consultations, there have been no comprehensive
revisions to the implementing section 7 regulations since 1986. Since
those regulations were issued, much has happened: The Services have
gained considerable experience in implementing the Act, as have other
Federal agencies, States, and property owners; there have been many
judicial decisions regarding almost every aspect of section 7 of the
Act and its implementing regulations; and the Government Accountability
Office has completed reviews of section 7 implementation.

[[Page 47869]]

    We also propose these regulatory changes in response to new
challenges we face with regard to global warming and climate change. On
May 15, 2008, Secretary of the Interior Dirk Kempthorne announced that
he would propose common sense modifications to the section 7
regulations to provide greater clarity and certainty to the
consultation process. Particularly as we are confronted with new and
more complex issues, it is important that we have a section 7
consultation process that clearly sets out key definitions and the
applicability of that process. As we negotiate the complexities of
consultations in the 21st century, we need to have a regulatory
framework that supplies guidance to shape those consultations as
envisioned by the Act.
    A 2004 GAO report on interagency collaboration during section 7
consultations found that although the Services had made improvements to
the consultation process, it remained contentious between the Services
and action agencies. In particular, the GAO found that action agencies
continued to consider the consultation process burdensome. The GAO
concluded that, given the unique requirements and circumstances of
different species, a ``healthy dose of professional judgment'' from the
Services would always be required, meaning there would always be some
disagreements. Nevertheless, the GAO also concluded that the process
could still be improved, and specifically recommended that the Services
and other Federal agencies ``resolve disagreements about when
consultation is needed. * * *''
    The proposed regulations respond to this recommendation by allowing
for a variety of documents prepared for other purposes to suffice for
initiating consultation, and by allowing for action agencies to
determine the effects of their own actions, without concurrence from
the Service, in some very specific narrow situations. In addition, we
propose to clarify the appropriate causation standard to be used in
determining the effects of agency actions. Finally, we propose
relatively minor procedural changes to ``informal'' consultations,
including inserting time frames into the informal consultation process.
    In this preamble, we refer to the Fish and Wildlife Service as FWS
and the National Marine Fisheries Service as NMFS. The word
``Services'' refers to both FWS and NMFS. We use the word ``Service''
when we describe a situation that could apply to either agency. We use
the term ``current regulations'' to reference the 1986 section 7
regulations found at 50 CFR Part 402.

Proposed Changes to 50 CFR Part 402

Section 402.02 Definitions

    This section sets out definitions of terms that are used throughout
the regulations. Discussed below are those definitions that are
modified from the current regulations.
    ``Biological Assessment.'' We propose to add a sentence to the
current regulatory definition of biological assessment to clarify that
action agencies do not necessarily have to create a new document to
comply with the requirement for a biological assessment. 50 CFR 402.12.
If the information required to initiate consultation has been included
in a document prepared for another purpose, we propose to allow action
agencies to submit that document, rather than requiring them to create
a new document to satisfy the requirements for initiating consultation
as set out in 50 CFR 402.14(c). Because the contents of the biological
assessment are not prescribed by regulation but rather are at the
``discretion of the Federal agency and will depend on the nature of the
Federal action,'' this is a minor procedural change that will increase
efficiency for the Federal action agency without impairing the
Services' ability to perform their consultation role. See 50 CFR
402.12(f). We note, however, that it will be the Federal action
agency's responsibility to describe with specificity where the relevant
analyses for initiation of consultation can be found in the alternative
document.
    ``Cumulative effects.'' We propose to amend the current regulatory
definition of cumulative effects to clarify that the definition of
``cumulative effects'' under section 7 of the Act is not the same as
the use of ``cumulative impacts'' in the National Environmental Policy
Act (``NEPA''; 42 U.S.C. 4321, et seq.). The current ESA regulatory
definition of cumulative effects (and this proposed definition) is
narrower than the NEPA regulatory definition of cumulative impacts.
NEPA defines ``cumulative impact'' as ``the impact on the environment
which results from the incremental impact of the action when added to
other past, present, and reasonably foreseeable future actions. * * *''
40 CFR 1508.7. The term as used in the NEPA context includes the
effects of future Federal actions and includes future actions that are
merely ``reasonably foreseeable'' rather than reasonably certain to
occur.
    We propose to further clarify that cumulative effects do not
include future Federal activities. This is not a new concept; the
current regulations also limit cumulative effects to future state or
private actions. In fact, the preamble to the current regulations notes
that ``Since all future Federal actions will at some point be subject
to the section 7 consultation process pursuant to these regulations,
their effects on a particular species will be considered at that time
and will not be included in the cumulative effect analysis.'' 51 FR
19932 (June 3, 1986). Finally, we note that the preamble language cited
above also establishes that the standard of ``reasonably certain to
occur'' is an essential factor for both cumulative effects and indirect
effects.
    ``Effects of the action.'' We propose to amend the current
regulatory definition of ``effects of the action.'' The current
definition of ``effects of the action'' establishes that indirect
effects are effects that are ``later in time,'' ``caused by'' the
action under consultation, and ``reasonably certain to occur.'' The
current regulations, however, do not define ``caused by'' nor do they
offer any guidance as to how to apply the phrase ``reasonably certain
to occur.'' This lack of clarity has resulted in many disagreements
between action agencies and the Services. We propose to offer more
guidance in this definition as to what constitutes ``caused by'' and
``reasonably certain to occur'' to ensure consistent application of
what we believe are the current and appropriate definitions of these
terms.
    Initially, we want to emphasize that both in the current
regulations and these proposed regulations, an effect must both be
caused by the action under consultation and must be ``reasonably
certain to occur'' before it can be included in the effects analysis.
It is a two-part test and both parts must be met. We propose to add
language to the ``effects of the action'' definition to define
``indirect effects'' as those effects ``for which the proposed action
is an essential cause, and that are later in time, but still are
reasonably certain to occur.'' Further, we propose to add language to
establish that reasonably certain to occur ``is the standard used to
determine the requisite confidence that an effect will happen. A
conclusion that an effect is reasonably certain to occur must be based
on clear and substantial information.'' We are proposing this language
to provide some additional clarity regarding the nature of the
parameters for the effects analysis so that the effects analysis will
focus on those effects that can meaningfully be considered in the
context of the action under consultation. We believe this proposed
added language will allow action agencies and the Services to determine
more readily the effects of the action and thus to determine if the

[[Page 47870]]

action will jeopardize the species or adversely modify or destroy
critical habitat, thereby focusing consultation on those effects that
can be meaningfully addressed. This will simplify the consultation
process and make it less burdensome and time-consuming.
    We think it is appropriate to require that for an indirect effect
to be considered as an effect of the action under consultation that
action must be an ``essential cause'' of that effect. We propose to use
the term ``essential'' to denote that the action is necessary for that
effect to occur. That is, the effect would not occur ``but for'' the
action under consultation and the action is indispensable to the
effect. Our intent is to clarify that there must be a close causal
connection between the action under consultation and the effect that is
being evaluated. As we noted in our proposed language, ``if an effect
would occur whether or not the action takes place, the action is not a
cause of the direct or indirect effect.'' As discussed above, our
intention with the proposed language is to limit the effects analysis
only to those effects that are appropriate; if an effect would occur
regardless of the action, then it is not appropriate to require the
action agency to consider it an effect of the action. However, it may
be appropriate to address it as it relates to the baseline or
cumulative effects analysis.
    We propose to add the word ``essential'' to capture the requirement
that in some instances there needs to be more than a technical ``but
for'' connection. For example, if the action under consultation is
issuance of a U.S. Army Corps of Engineers (Corps) permit (in this
example, the only Federal permit needed for the project) necessary to
allow a lengthy pipeline to cross a narrow waterway, one could argue
that ``but for'' the Corps' permit to cross the waterway, the pipeline
could not be constructed and none of the future effects from the
construction or operation of that lengthy pipeline would occur.
Therefore, under this line of reasoning, in addition to considering the
effects of the crossing (the permitted activity) on protected species
in the area, the Corps would also have to consider the effects of the
construction and operation of the entire pipeline on threatened or
endangered species. But because the permitted crossing is not essential
to the entire pipeline (e.g., the route and design of the pipeline for
most of its length, except in the immediate vicinity of the crossing,
is not determined by the crossing), it is no more than a marginal
contributor to the effects of the construction and operation of that
pipeline. In other words, there is an insufficient causal connection to
attribute all of the future effects of the construction and operation
of the pipeline to the Corps' permit.
    On the other hand, an action to build a marina (in an area where
there is currently no boat traffic) may also need a permit from the
Corps. In this case, the permitted activity itself (building the
marina) is an essential cause of the future effects (increased boat
traffic) that are related to the building of the marina. The marina
cannot be built without the permit, and the permit will largely
determine the capacity, configuration, etc. of the entire marina, and
therefore is an essential cause of any effects resulting from the
building of the marina as permitted. By contrast, in the first example,
the planned waterway crossing (the action under consultation) will not
determine or even significantly affect the construction and operation
of the pipeline except in the vicinity of the crossing. The crossing
should not be seen, therefore, as an essential cause of future effects
associated with the construction and operation of the entire pipeline.
    We also propose to add language to the definition of ``effects of
the action'' to further explain that ``reasonably certain to occur'' is
the standard used to determine that an effect will happen. As noted
above, the ``reasonably certain to occur'' standard is in the current
regulations. We propose to add the requirement that there be ``clear
and substantial information'' that the effect will happen. Our
intention is to make it clear that the effect cannot just be
speculative and that it must be more than just likely to occur. We also
intend to emphasize that ``reasonably certain to occur'' is not the
equivalent of NEPA's reasonably foreseeable standard. It is a narrower
standard.
    We believe the proposed language to require ``clear and
substantial'' information is within the intent of the current
regulations. We note that the preamble to the current regulations
discusses the difference between NEPA and the Act at length and
concludes that ``Congress did not intend that Federal action be
precluded by such speculative actions.'' 51 FR 19932 (June 3, 1986).
Further, the preamble discusses, with regard to cumulative effects,
that the Federal agency and the Service must bear in mind the
``economic, administrative, or legal hurdles which remain to be
cleared'' before determining if the standard of ``reasonably certain to
occur'' has been met. By proposing this language, we intend to endorse
that preamble language and emphasize that there must be information,
which is clear and substantial, that demonstrates that the effect is
reasonably certain to occur.

Section 402.03 Applicability

    This proposed section would define the applicability of these
regulations. The current regulations state that section 7 applies to
``all actions in which there is discretionary Federal involvement or
control.'' 50 CFR 402.03. The first sentence of paragraph (a) of this
proposed section reiterates the constraint that section 7 only applies
to discretionary agency actions. We note that the Supreme Court
recently upheld the Services' determination in the current regulations
that section 7 applies only to discretionary agency actions. National
Home Builders v. Environmental Protection Agency, 127 S. Ct. 2518
(2007).
    In paragraph (b), we propose to add new language to this section to
delineate when section 7 is not applicable. For all the subparagraphs
set out under paragraph (b) a threshold requirement is that no take is
anticipated. Action agencies must be aware that when they make a
determination that their action falls under one of the subparagraphs of
paragraph (b), they are asserting that they do not anticipate take.
    In paragraph (b)(1) we propose to add language that action agencies
are not required to consult on those actions for which they determine
their action will have ``no effect'' on listed species or critical
habitat. Although the current regulations do not explicitly state that
consultation is not required when a Federal action agency determines
that its action will have no effect on listed species or critical
habitat, an evaluation of the current regulations makes it clear that
no consultation was contemplated for these situations; the current
regulations only require Federal action agency consultation when there
is a determination that an action ``may affect'' a listed species or
designated critical habitat. 50 CFR 402.14(a). By policy and practice
the Services have consistently determined that consultation is not
required when an action has no effect on listed species or critical
habitat.
    In proposed paragraphs (b)(2) and (3), we intend to exclude from
consultation those actions the effects of which are so inconsequential,
uncertain, unlikely or beneficial that they are, as a practical matter,
tantamount to having no effect on listed species or critical habitat.
Again, an important threshold requirement for this subparagraph is that
the action agency does not anticipate any take from the action

[[Page 47871]]

under consultation with regard to the effect in question.
    In proposed paragraph (b)(2), we propose to exclude from
consultation actions that are ``insignificant contributor[s]'' to any
effect on listed species or critical habitat. In proposed paragraph
(b)(3), we propose to exclude from the consultation requirement those
effects of an action that are not capable of being meaningfully
identified or detected in a manner that permits evaluation; or, are
wholly beneficial; or, are such that the potential risk of jeopardy to
the listed species is remote. This proposed language broadly tracks
language from the Services' joint consultation handbook with regard to
those actions that ``may affect'' but are ``not likely to adversely
affect'' (NLAA) listed species or critical habitat. The Final
Endangered Species Consultation Handbook (March 1998) defines ``not
likely to adversely affect'' as:
    * * * the appropriate conclusion when effects on listed species are
expected to be discountable, insignificant, or completely beneficial.
Beneficial effects are contemporaneous positive effects without any
adverse effects to the species. Insignificant effects relate to the
size of the impact and should never reach the scale where take occurs.
Discountable effects are those extremely unlikely to occur. Based on
best judgment, a person would not (1) be able to meaningfully measure,
detect, or evaluate insignificant effects; or (2) expect discountable
effects to occur. Final Endangered Species Consultation Handbook, March
1998, ``Glossary of Terms used in Section 7 Consultations,'' p. xv.
    Finally, we propose to add language to the applicability section by
noting that if an action has one or more effects that fall outside
paragraph (b) the Services and action agencies need only consider the
effects that fall outside paragraph (b) when consulting on the action.
The current regulations require that action agencies submit in writing
a ``description of the manner in which the action may affect any listed
species or critical habitat. * * *'' 50 CFR 402.14(c). We anticipate
that an action agency can limit this description to those effects that
fall outside of paragraph (b).
    The intent of these proposed exclusions is to reduce the number of
unnecessary consultations. Under the current regulations, the type of
effects set out in paragraph (b)(3) could require consultation; that
is, an action agency must consult if the action ``may affect'' a listed
species or critical habitat, although the action agency can submit a
proposed ``not likely to adversely affect'' determination to the
Service. The Service can then concur with that determination and the
consultation obligation is satisfied for the action agency. 50 CFR
402.14(b). In cases where the Service has concurred with a ``not likely
to adversely affect'' determination made by a Federal action agency,
there would be no need for an incidental take statement because no take
would be anticipated. There also would never be a jeopardy or an
adverse modification determination because if the nature of the effects
involved rose to that level, the Services would not concur.
    To achieve the goal of reducing unnecessary consultations, the
proposed language allows a Federal action agency to make a ``not likely
to adversely affect'' determination without concurrence from the
Services in limited circumstances. The Services believe this is
appropriate for several reasons. First, the Services see little value
in consulting on actions that satisfy the criteria in proposed
402.03(b), including no anticipated take, just as we see little value
in consulting in ``no effect'' situations. Many Federal action agencies
have now had decades of experience with section 7. The Services believe
that Federal action agencies are fully qualified to make these
determinations in the limited circumstances provided for in the
proposed rule. In light of the tremendous workload and consumption of
resources that consultations require, the Services believe it is not an
efficient use of limited resources to review literally thousands of
proposed Federal agency actions in which take is not anticipated and
the potential effects are either insignificant, incapable of being
meaningfully evaluated, wholly beneficial, or pose only a remote risk
of causing jeopardy or adverse modification or destruction of critical
habitat. The Services have determined that actions satisfying these
criteria will not cause adverse effects on listed species and that
Federal action agencies are qualified to determine that their actions
satisfy these criteria. Finally, Federal action agencies have strong
incentives to make these determinations accurately. Federal action
agencies are well aware that take is not authorized without an
incidental take statement (which can only be obtained through formal
consultation) and that ultimately it is they who must ensure that it is
not likely that their action will jeopardize the continued existence of
listed species or adversely modify or destroy designated critical
habitat.
    The Services are proposing these changes to the applicability of
section 7 as part of our administrative authority and interpretive
authority under the Act. The Services have the authority to determine
what constitutes ``consultation'' and when consultation is triggered.
Section 7(a)(2) of the Act requires that Federal action agencies, in
consultation with the Secretary, ensure that their actions are not
likely to jeopardize the continued existence of listed species or
adversely modify or destroy critical habitat. But, the Act does not
define ``consultation'' nor does it define when the consultation
obligation is triggered. Congress left the crafting of the consultation
process, including the trigger for consultations, with the Services.
See Sweet Home v. Babbitt, 515 U.S. 687, 708 (1995) (Congress delegated
broad administrative and interpretive power to the Secretary in the Act
to define terms).
    In 1986, using our administrative and interpretive authority, the
Service promulgated general consultation regulations (the ``current
regulations'') that established a tiered consultation process. 50 CFR
402.01-402.16. These regulations, not the Act, established a ``may
affect'' trigger for consultations, an informal level of consultation
for actions that are ``not likely to adversely affect'' and formal
consultation for those actions that are likely to adversely affect
listed species or critical habitat. Under the current regulations, a
Federal action agency can determine that its action is not likely to
adversely affect listed species or designated critical habitat but then
must seek and gain concurrence from the Services.
    In 1986, this tiered process made sense. Very few Federal action
agencies had any in-depth expertise with section 7 and listed species.
For that matter, the more complex consultation process was relatively
new to the Services as well. We erred on the side of over inclusion
because our consultation experience and history was so limited at that
time. After decades of experience and literally thousands of
consultations per year, however, we have concluded that there is no
gain in requiring Federal action agencies to consult, even informally,
for those potential effects described in proposed paragraphs (b)(2) and
(b)(3). We recognize that Federal action agencies have more expertise
now than in 1986 and are much more aware of the consequences and
significance of their findings. That is, Federal action agencies are
more informed about the Act as a whole and more aware of the
ramifications of not making conscientious and thoughtful determinations
under the Act. Federal action agencies understand that there are
significant consequences if they

[[Page 47872]]

were to take an action that resulted in prohibited take without an
exemption through the section 7 process. Further, the Federal action
agencies will continue to have the option of ``informal consultation''
under 50 CFR 402.13 for those situations when an action does not
satisfy the criteria of 402.03(b) or the action agency seeks the
Services' expertise.
    These regulations would reinforce the Services' current view that
there is no requirement to consult on greenhouse gas (GHG) emissions'
contribution to global warming and its associated impacts on listed
species (e.g., polar bears).
    For example, when a Federal agency provides funding for a new
highway, vehicle use of the highway may result in changes in GHG
emissions. The proposed revisions make explicit that while the impact
of tailpipe emissions on local air pollution could be an effect of the
action, the GHG emissions' contribution to global warming and
associated impacts to listed species (e.g., polar bears) are not, and
the effects of those impacts would not need to be considered in any
consultation.
    First, GHG emissions from building one highway are not an
``essential cause'' of any impacts associated with global warming.
Moreover, any such effects are later in time, but are not reasonably
certain to occur (i.e., a finding that an effect is reasonably certain
to occur must be based on clear and substantial information, cannot be
speculative, and must be more than just likely to occur). For both
reasons, impacts associated with global warming do not constitute
``effects of the action'' under the proposed revision to that
definition. See proposed 50 CFR 402.02, 402.03(b)(1), (c).
    Even if these impacts would otherwise fall within the definition of
``effects of the action,'' they need not be considered in any
consultation because under the proposed Applicability section the
building of one highway is ``an insignificant contributor'' to any such
impacts. Further, any impacts associated with the GHG emissions from
the building of one highway are ``not capable of being meaningfully
identified or detected in a manner that permits evaluation'' and ``are
such that the potential risk of jeopardy to the listed species or
adverse modification or destruction of the critical habitat [from those
GHG emissions] is remote.'' See proposed 50 CFR 402.03(b)(2)-(3), (c).
    For the reasons discussed above, the Services believe the proposed
changes to the current regulations are appropriate. Further, we believe
them to be in compliance with the Act. As discussed above, the Act does
not set the requirement for consultation. Rather, the Act requires that
Federal action agencies consult with the Secretary to ensure that their
actions are not likely to jeopardize listed species or adversely modify
or destroy designated critical habitat. The Act then requires the
Secretary to issue an opinion to help action agencies meet this
obligation of ensuring that it is not likely that their action will
result in jeopardy or adverse modification or destruction of critical
habitat. For the reasons discussed above, just as we have determined in
the past that an opinion from the Secretary is not necessary for ``no
effect'' actions, we believe the Secretary's opinion is not necessary
for those potential effects set out in proposed paragraphs (b)(2) and
(b)(3).

Section 402.13 Informal Consultation

    We have retained this section for those cases when an action does
not satisfy the criteria of 402.03(b) or the action agency seeks the
Services' expertise. We propose to add language that informal
consultation can include ``a number of similar actions, an agency
program, or a segment of a comprehensive plan.'' This proposed language
is similar to language found under formal consultation in 50 CFR
402.14(c). Here, however, we do not propose to require the Director's
approval, as the regulations do for formal consultation. We believe
this is appropriate because informal consultation, even for grouped
actions, would never be sufficient for actions that are expected to
result in take or in the destruction or adverse modification of
critical habitat or for an action that was likely to jeopardize the
continued existence of the species. The analysis, then, should be less
complex than what would be necessary for formal consultation.
    In new proposed paragraph (b), we propose to add time deadlines to
help limit the duration of informal consultation and lend greater
certainty to the process. Specifically, we propose to allow action
agencies to terminate consultation if the Service has not acted on its
request for concurrence within 60 days. We are proposing, however, to
allow the Services to advise the action agency that 60 days is not
enough time to review the request for concurrence. In those cases, the
Service would receive 60 more days to review the request for
concurrence. Finally, we propose to allow the action agency to
terminate the consultation, with written notice to the Service, if
there is no written determination from the Service within the
appropriate time frame.
    We believe this proposal to be reasonable because an action agency
would only be requesting concurrence for actions that are not expected
ever to jeopardize the continued existence of a listed species or
result in adverse modification or destruction of critical habitat. Only
in situations where no take is anticipated would an agency request a
concurrence on a not likely to adversely affect determination through
informal consultation. Without the proposed time limitations, informal
consultations can actually become longer and more drawn out than formal
consultations. It is our hope that the new deadlines will make informal
consultation a shorter, more efficient and more predictable process, as
it was intended to be. Finally, we believe the proposed language which
allows for action agencies to terminate consultation if the action
agency does not receive a determination from the Service within the
specified time frame is appropriate under the narrow circumstances in
which it would come into play. The Services request comment on this
provision and on the appropriate status with respect to concurrence of
actions for which informal consultation is terminated pursuant to the
proposed text.

Section 402.14 Formal Consultation

    We propose a minor change to this section to reflect changes in the
informal consultation sections of the regulations. Specifically, we
propose to change the ``exception'' language in Sec.  402.14 to note
that informal consultation may be concluded without the written
concurrence of the Director under the circumstances in Sec.  402.13(b).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, we have determined that
this document is a significant rule. As such, it was reviewed by the
Office of Management and Budget (OMB) and other interested Federal
agencies.

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 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

[[Page 47873]]

jurisdictions), unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. The Regulatory Flexibility Act requires Federal agencies to
provide a statement of the factual basis for certifying that a rule
will not have a significant economic impact on a substantial number of
small entities.
    Pursuant to the Regulatory Flexibility Act, the Secretaries of the
Interior and Commerce certify that this regulation will not have a
significant economic impact on a substantial number of small entities.
The rule applies only to Federal agencies and does not regulate, either
directly or indirectly, any small entities.

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 rule 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) These regulations will not ``significantly or uniquely'' affect
small governments. A Small Government Agency Plan is not required. We
expect that these regulations will not result in any significant
additional expenditures by entities that develop formalized
conservation efforts.
    (b) These regulations 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. These regulations
impose no obligations on State, local, or tribal governments.

Takings

    In accordance with Executive Order 12630, these regulations do not
have significant takings implications. These regulations have no impact
on personal property rights.

Federalism

    In accordance with Executive Order 13132, these regulations do not
have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Commerce
regulations under section 7 of the Act, we coordinated development of
these regulations with appropriate resource agencies throughout the
United States.

Civil Justice Reform

    In accordance with Executive Order 12988, this rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order. We promulgate these regulations consistent
with the Act.

Paperwork Reduction Act

    This rule will not impose any new requirements for collection of
information that require approval by the OMB under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. 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.

National Environmental Policy Act

    The Services will conduct an analysis pursuant to the National
Environmental Policy Act prior to finalizing these proposed
regulations. The FWS and NMFS are considered the lead Federal agencies
for the preparation of this proposed rule, pursuant to 40 CFR part
1501.

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

Public Comments

    You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. On May 15, the Secretary of the Interior
(Secretary) announced that the Department of the Interior would propose
common sense modifications to the section 7 regulations to provide
greater clarity and certainty to the consultation process. We believe
that as we are confronted with new and increasingly complex issues, it
is important to have a section 7 consultation process that sets out key
definitions in a timely and expeditious manner. Therefore, given the
need for timely action and consistent with existing policy, the
Services have determined that a public comment period of 30 days is
appropriate. Moreover, given the narrow scope of the proposed
revisions, we believe a 30 day public comment period provides the
public with a reasonable opportunity to review the proposal and prepare
comments. We must receive your comments by the date specified in the
DATES section to ensure their full consideration in the final decision
on this proposal.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); 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 the Interior's 512 DM 2, we understand that we must
relate to recognized Federal Indian Tribes on a Government-to-
Government basis. These regulations apply only to Federal agencies, not
Indian Tribes. To the extent that Federal actions requiring
consultation may

[[Page 47874]]

indirectly affect Tribes, the regulations are intended only to
streamline the administration of the Act; not to change any substantive
requirements concerning protection of listed species; therefore, any
indirect effect would be minimal.

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

    Dated: August 11, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks, Department of the
Interior.
    Dated: August 11, 2008.
Samuel D. Rauch,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration.

    For the reasons set forth in the preamble, the Services propose to
amend part 402, title 50 of the Code of Federal Regulations as follows:

PART 402--INTERAGENCY COOPERATION--ENDANGERED SPECIES ACT OF 1973,
AS AMENDED

    1. The authority for part 402 continues to read as follows:

    Authority: 16 U.S.C. 1531, et seq.

    2. In Sec.  402.02 revise the definitions for ``Biological
assessment,'' ``Cumulative effects,'' and ``Effects of the action'' to
read as follows:


Sec.  402.02  Definitions.

* * * * *
    ``Biological assessment'' means the information prepared by or
under the direction of the Federal agency concerning listed and
proposed species and designated and proposed critical habitat that may
be present in the action area and the evaluation of potential effects
of the action on such species and habitat. A biological assessment may
be a document prepared for the sole purpose of interagency
consultation, or it may be a document or documents prepared for other
purposes (e.g., an environmental assessment or environmental impact
statement) containing the information required to initiate
consultation.
* * * * *
    ``Cumulative effects'' means those effects of future State or
private activities, not involving Federal activities, that are
reasonably certain to occur within the action area of the particular
Federal action subject to consultation. Cumulative effects do not
include future Federal activities that are physically located within
the action area of the particular Federal action under consultation.
* * * * *
    ``Effects of the action'' means the direct and indirect effects of
an action on the species or critical habitat, together with the effects
of other activities that are interrelated or interdependent with that
action, that will be added to the environmental baseline. The
environmental baseline includes the past and present impacts of all
Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects
in the action area that have already undergone formal or early section
7 consultation, and the impact of State or private actions which are
contemporaneous with the consultation in process. Indirect effects are
those for which the proposed action is an essential cause, and that are
later in time, but still are reasonably certain to occur. If an effect
will occur whether or not the action takes place, the action is not a
cause of the direct or indirect effect. Reasonably certain to occur is
the standard used to determine the requisite confidence that an effect
will happen. A conclusion that an effect is reasonably certain to occur
must be based on clear and substantial information. Interrelated
actions are those that are part of a larger action and depend on the
larger action for their justification. Interdependent actions are those
that have no independent utility apart from the action under
consideration.
* * * * *
    3. Revise Sec.  402.03 to read as follows:


Sec.  402.03  Applicability.

    (a) Section 7 of the Act and the requirements of this part apply to
all actions in which the Federal agency has discretionary involvement
or control.
    (b) Federal agencies are not required to consult on an action when
the direct and indirect effects of that action are not anticipated to
result in take and:
    (1) Such action has no effect on a listed species or critical
habitat; or
    (2) Such action is an insignificant contributor to any effects on a
listed species or critical habitat; or
    (3) The effects of such action on a listed species or critical
habitat:
    (i) Are not capable of being meaningfully identified or detected in
a manner that permits evaluation;
    (ii) Are wholly beneficial; or
    (iii) Are such that the potential risk of jeopardy to the listed
species or adverse modification or destruction of the critical habitat
is remote.
    (c) If all of the effects of an action fall within paragraph (b) of
this section, then no consultation is required for the action. If one
or more but not all of the effects of an action fall within paragraph
(b) of this section, then consultation is required only for those
effects of the action that do not fall within paragraph (b) of this
section.
    4. Revise Sec.  402.13 to read as follows:


Sec.  402.13  Informal consultation.

    (a) Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the Federal
agency or the designated non-Federal representative, designed to assist
the Federal agency in determining whether formal consultation or a
conference is required. If during informal consultation it is
determined by the Federal agency that the action, or a number of
similar actions, an agency program, or a segment of a comprehensive
plan, is not likely to adversely affect listed species or critical
habitat, the consultation process is terminated, and no further action
is necessary, if the Service concurs in writing. For all requests for
informal consultation, the Federal agency shall consider the effects of
the action as a whole on all listed species and critical habitats.
    (b) If the Service has not provided a written statement regarding
whether it concurs with a Federal agency's determination provided for
in paragraph (a) of this section within 60 days following the date of
the Federal agency's request for concurrence, the Federal agency may,
upon written notice to the Service, terminate consultation. The Service
may, upon written notice to the Federal agency within the 60-day
period, extend the time for informal consultation for a period no
greater than an additional 60 days from the end of the 60-day period.
    (c) During informal consultation, the Service may suggest
modifications to the action that the Federal agency and any applicant
could implement to avoid the likelihood of adverse effects to listed
species or critical habitat.
    5. In Sec.  402.14 revise paragraphs (a) and (b)(1) to read as
follows:


Sec.  402.14  Formal consultation.

    (a) Requirement for formal consultation. Each Federal agency shall
review its actions at the earliest possible time to determine whether
any action may affect listed species or critical habitat. If such a
determination is made, formal consultation is required, except as noted
in paragraph (b) of this section. The Director may request a Federal
agency to enter into consultation if he identifies any action of that
agency that may affect listed species or critical

[[Page 47875]]

habitat and for which there has been no consultation. When such a
request is made, the Director shall forward to the Federal agency a
written explanation of the basis for the request.
    (b) Exceptions. (1) A Federal agency need not initiate formal
consultation if, as a result of the preparation of a biological
assessment under Sec.  402.12 or as a result of informal consultation
with the Service under Sec.  402.13, the Federal agency determines that
the proposed action is not likely to adversely affect any listed
species or critical habitat, and the Director concurs in writing or
informal consultation has terminated under Sec.  402.13(b) without a
written determination by the Service as to whether it concurs;
* * * * *
[FR Doc. E8-18938 Filed 8-13-08; 11:15 am]

BILLING CODE 4310-55-P


 
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