Interagency Cooperation Under the Endangered Species Act, 47868-47875 [E8-18938]

Agencies

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

[Federal Register Volume 73, Number 159 (Friday, August 15, 2008)]
[Proposed Rules]
[Pages 47868-47875]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18938]


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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 
https://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