Interagency Cooperation Under the Endangered Species Act, 76272-76287 [E8-29701]

Agencies

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

[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76272-76287]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29701]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[1018-AT50]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[0648-AX15]

50 CFR Part 402


Interagency Cooperation Under the Endangered Species Act

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: With this final rule, the United States Fish and Wildlife 
Service and the National Marine Fisheries Service (collectively, 
``Services'' or ``we'') amend regulations governing interagency 
cooperation under the Endangered Species Act of 1973, as amended (ESA). 
This rule clarifies several definitions, provides assistance as to when 
consultation under section 7 is necessary, and establishes time frames 
for the informal consultation process.

DATES: Effective Date: This rule is effective January 15, 2009.

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 (``ESA''; 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 ESA. 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 Fish and Wildlife Service and by the Secretary 
of Commerce through the Administrator of the National Oceanic and 
Atmospheric Administration to the Assistant Administrator for National 
Marine Fisheries Service.
    In this rule, 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 
``1986 regulations'' to reference the 1986 section 7 regulations found 
at 50 CFR Part 402.

Procedural Background

    On August 15, 2008, the Services published the Proposed Rule. The 
public was given 30 days to comment. On September 15, 2008, that 
comment period was extended by 30 days. Approximately 235,000 comments 
were received; of these, approximately 215,000 were largely similar 
``form'' letters.

Changes From Proposed Rule in Responses to Comments

    After reviewing the public comments and further interagency 
discussion, the Services made certain clarifications and modifications 
in the final rule. The parts of the rule that were changed are set out 
immediately below. Those changes are discussed in more detail in a 
section-by-section analysis of comments set out later in this preamble.

Definitions (Sec.  402.02)

    The proposed rule set out a new definition for ``Biological 
Assessment''. In the final rule, a sentence was added to the end of the 
definition. The additional sentence requires that the Federal agency 
provide the Services a specific guide or statement as to the location 
of the relevant consultation information, as described in 402.14, in 
any alternative document submitted in lieu of a biological assessment.
    The proposed rule set out a new definition of ``cumulative 
effects.'' No changes were made to the definition of cumulative effects 
in the final rule.
    The proposed rule set out a new definition of ``Effects of the 
Action''. In the final rule, a definition of ``direct effects'' was 
added and the fourth sentence of the proposed rule was changed.

Applicability--(Sec.  402.03)

    The proposed rule set out a new applicability section. In the final 
rule, paragraph (b)(2) and paragraph (b)(3)(i) were changed and 
paragraph (b)(3)(iii) was deleted. Specifically, paragraph (b)(2) 
deleted language that ``such action is an insignificant contributor to 
any effects on a listed species or critical habitat'' and replaced it 
with language that the effects of such action are manifested through 
global processes and cannot be reliably predicted or measured at the 
scale of a listed species' current range; or, would result at most in 
an extremely small, insignificant impact on a listed species or 
critical habitat; or, are such that the potential risk of harm to a 
listed species or critical habitat is remote. Paragraph (b)(3)(i) was 
changed by moving the word ``meaningful'' to directly before the word 
``evaluation.'' Finally, paragraph (b)(3) was deleted in its entirety.

Informal Consultation (Sec.  402.13)

    The proposed rule amended the informal consultation procedures. In 
the final rule, a sentence was added to the end of paragraph (b) and a 
paragraph (c) was added. Specifically, a sentence was added to the end 
of paragraph (b) to set out that if the Federal agency terminates 
consultation at the end of the 60-day period, or if the Service's 
extension period expires without a written statement whether it concurs 
with a Federal agency's determination provided for in paragraph (a) of 
this section, the consultation provision in section 7(a)(2) is 
satisfied. Paragraph (c) was added to the final rule to provide that 
notwithstanding the provisions of paragraph (b) the Service, the 
Federal agency, and the applicant, if one is involved, may agree to 
extend informal consultation for a specific time period.

Formal Consultation (Sec.  402.14)

    The proposed rule made a change to the formal consultation 
procedures. In the final rule, we changed the ``exception'' language in 
Sec.  402.14 to note that informal consultation may be

[[Page 76273]]

concluded without the written concurrence of the Director under the 
circumstances set out in Sec.  402.13(b).

General Comments

    Many of the comments received on the proposed rule focused on 
particular regulatory provisions of the proposed regulation or concepts 
captured in specific sections of the proposed regulation. These 
comments are discussed in a section-by-section analysis. Some 
commenters, however, expressed broad comments related to the proposed 
regulation. We discuss those comments below.
    Comment: Some commenters question why this rule is being 
promulgated. Some of these commenters think that the 1986 regulations 
are working so there is no need for change.
    Response: As discussed in the preamble to the proposed rule, we 
believe the narrow changes made in this rule will be beneficial for the 
consultation process. This rule is intended to accomplish several 
objectives. First, it is intended to clarify several definitions. 
Second, it is intended to assist the agencies in determining when 
consultation is necessary under section 7(a)(2). Since 1986, and 
continuing under this rule, action agencies are required to review 
their actions to determine if the effects of that action ``may affect'' 
listed species or critical habitat. Action agencies and agency 
personnel have struggled periodically to determine when informal and 
formal consultation is required. As part of this guidance on when 
consultation is required, this rule assists action agencies in 
determining when consultation is necessary in the very narrow 
circumstances of agency actions where no take is anticipated, and at 
least one of several other criteria are satisfied. This rule will 
provide greater guidance to help the action agencies and the Services 
negotiate the complexities of consultations in the 21st century, 
particularly with regard to global processes. Third, it is intended to 
introduce time frames into the informal consultation process, which, 
just as in formal consultation, can be waived. As discussed above, the 
standards for jeopardy and adverse modification remain the same, as do 
the protection provided to species by sections 4(d), 9, and ll.
    Comment: Some commenters asserted that this rule changes standards 
and responsibilities under the ESA. Others assert that this rule is an 
attempt to weaken or repeal the ESA.
    Response: This rule does not change the substantive standard for 
protection of listed species and critical habitat set out in section 
7(a)(2) of the ESA. This rule is not intended to, nor does it, repeal 
or weaken the ESA. Only Congress can modify a statute. Federal action 
agencies are still required to use the best scientific and commercial 
data available to ensure that their actions are not likely to 
jeopardize listed species or adversely modify or destroy critical 
habitat. Further, the statutory definition of ``take'' and all 
prohibitions regarding ``take'' remain in place under this rule. 
Similarly, an action agency cannot proceed with a discretionary agency 
action that is anticipated to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect any listed species without consulting 
with the Services first.
    All aspects of formal consultation, as found in the 1986 
regulations, remain intact. Nothing in this final rule allows action 
agencies to adversely affect listed species or critical habitat without 
consultation with the Services. Action agencies remain obligated to 
review their actions to determine if they ``may affect'' a listed 
species. In formal consultation, the action agency continues to be 
required to produce a biological assessment for ``major construction 
activities,'' to produce a consultation initiation package that 
describes the action to be considered, the specific area that may be 
affected by the action, any listed species or critical habitat that may 
be affected by the action, the manner in which the action may affect 
listed species or critical habitat, and cumulative effects. An action 
agency must submit any relevant reports to the Services and the action 
agency is still required to provide the Services with the ``best 
scientific and commercial data available.'' Further, nothing in this 
final rule prevents an action agency from engaging in informal 
consultation or technical assistance from the Service.
    Comment: One commenter expressed concern that the proposed 
regulation would affect the listing of species.
    Response: There is no correlation between this rule and listing 
procedures set out in section 4 of the ESA. Listing decisions are made 
pursuant to section 4 of the ESA and regulations located in 50 CFR Part 
424. This rule does not alter the listing process or the listing 
regulations.
    Comment: Some commenters addressed matters that are beyond the 
scope of the proposal. For example, several commenters suggested that 
we amend several definitions (``environmental baseline'', ``adverse 
modification''), which were not addressed in the proposed regulation. 
Some commenters suggested new regulatory language or concepts that were 
not part of the proposed rule or made budgetary suggestions. 
Specifically, there were suggestions to add regulatory language related 
to conservation banks and habitat conservation plans. Further there 
were comments that related to sections 4, 7(p), 7(a)(1), and 10 of the 
ESA.
    Response: These comments were not considered as they were beyond 
the scope of the rule. The Services, however, may propose changes to 
address some of these issues at a future date.
    Comment: A commenter asserted that the proposed regulations violate 
the Services' obligation under section 7(a)(1) to utilize their 
authorities to further the purposes of the ESA.
    Response: We disagree. This rule does not violate section 7(a)(1). 
The first sentence of section 7(a)(1) requires the Secretaries of 
Interior and Commerce to review ``other programs administered by him 
and utilize such programs in furtherance of the purposes of the Act.'' 
The requirement that the Services utilize other programs to further the 
purposes of the ESA does not apply to this rulemaking, which involves 
implementation of the ESA itself. Nevertheless, the changes to the 1986 
regulations made by this rule are to further the purposes of the ESA. 
That is, this rule will allow the Services to focus their resources on 
those actions that have adverse impacts to listed species or critical 
habitat.
    Comment: Several commenters expressed concern that this rule is 
contrary to the ``benefit of the doubt to the species'' standard.
    Response: The phrase ``benefit of the doubt to the species'' 
originated in a Conference Report that accompanied the 1979 amendments 
to the ESA. Relevant to section 7, those amendments changed the 
statutory text at 7(a)(2) from ``will not jeopardize'' to the current 
wording of ``is not likely to jeopardize.'' The Conference Report 
explained that the change in the statutory language was necessary to 
prevent the Services from having to issue jeopardy determinations 
whenever an action agency could not ``guarantee with certainty'' that 
their action would not jeopardize listed species. The Conference Report 
explained that the amendment permitted the Services to render 
biological opinions based on the ``best available evidence'' or 
evidence that ``can be developed during consultation.'' The Conference 
Report sought to explain that this change in language would not have a 
negative impact on species:


[[Page 76274]]


    This language continues to give the benefit of the doubt to the 
species, and it would continue to place the burden on the action 
agency to demonstrate to the consulting agency that its action will 
not violate Section 7(a)(2).

H. Conf. Rep. No. 96-697, 96th Cong., 1st. Sess. 12, reprinted in 
[1979] U.S. Code Cong. & Ad. News, 2572, 2576.
    The use of the words ``benefit of the doubt to the species'' in the 
Conference Report appears to have been offered as reassurance that the 
statutory language, as amended, would remain protective of the species. 
At most, this language seems to indicate that the statutory language 
``is not likely to jeopardize'' continues to provide protections to 
listed species by requiring action agencies to insure that their 
actions are not likely to jeopardize listed species. This rule does not 
change any statutory requirements found in section 7(a)(2) of the ESA 
and nothing in this rule is contrary to the statutory standard.
    Comment: There were several comments related to administrative 
matters. Some commenters requested public hearings on this rule. Others 
stated there was not enough time allowed for adequate public comments. 
Others objected to not being able to submit e-mails or faxes as a 
method of commenting and some found the Federal Docket Management 
System difficult to navigate. Finally, some objected to the potential 
lack of privacy with regard to their comments.
    Response: In promulgating this rule, the Services acted in 
accordance with the Administrative Procedure Act (APA). The APA sets 
forth procedures to be followed by Federal agencies for rulemaking, and 
the Services have complied with the APA. The APA does not require 
public hearings for this type of rulemaking, although the Secretary of 
the Interior held 25 ``listening sessions'' about cooperative 
conservation prior to the publishing of the proposed rule. The APA does 
not set forth specific time frames for a public comment period. The 
Services initially considered a thirty day comment period to strike an 
appropriate balance between providing the public an opportunity to 
address the limited changes in the proposed rule and the Services' 
desire for prompt action. However, we extended the comment period to 
provide a total of sixty days in response to comments that more time 
was needed. The proposed rule stated that e-mails and faxes would not 
be accepted. However, the Service provided public opportunity to 
comment electronically via the Federal eRulemaking Portal. Section 206 
of the E-Government Act of 2002, Public Law 107-347, and 116 Stat. 2899 
directs the use of the Federal eRulemaking Portal for posting public 
comments electronically. The Office of Management and Budget (OMB) 
issued ``Implementation Guidance for the E-Government Act of 2002'' in 
August 2003 which directs Federal agencies to utilize regulations.gov 
in order to accept electronic submissions related to rulemaking 
proposals. The rulemaking portal has proven to be an extremely useful 
tool for the public to efficiently provide comment and insight on 
Federal rulemaking efforts. The rulemaking portal also assists Federal 
agencies in managing electronic records so they can efficiently review 
and respond to comments submitted by the public on rulemaking 
documents. In most circumstances, we no longer accept comments from the 
public over facsimile since doing so often caused fax machines to 
become overwhelmed with incoming documents and because the documents 
received by fax are usually in paper form and must then be scanned into 
an electronic form for storage and review. Additionally, the proposed 
rule generated over 235,000 comments. Therefore, there is no indication 
that commenters did not have time to submit comments or that the 
Federal Docket Management System posed difficulty for commenters or 
last minute submitters.
    Finally, with regard to the privacy of commenters, a commenter may 
request that their personal identifying information be withheld from 
public review. However, the Services cannot guarantee that they will be 
able to do so. The Services must comply with the provisions of the 
Freedom of Information Act, Privacy Act and other applicable laws. 
Under such laws, the Service may be required to release this 
information. As a result, the Services advise commenters (as we did in 
the proposed rule) that, before including addresses, phone numbers, e-
mail addresses or other personal identifying information in their 
comments, they should be aware that the entire comment, including all 
personal identifying information, may be made publicly available. The 
Services cannot guarantee that they will be able to withhold this 
information given a lawful request.
    Comment: There were several comments related to various economic 
issues. Some commenters asserted that there would be a major increase 
in costs or prices to consumers, state and local governments and 
geographic regions because Federal agencies are ``ill-prepared'' to 
implement this rule. These commenters argued that this rule would 
``significantly and adversely affect'' employment, investments, and 
productivity.
    Response: There is no basis to conclude that this rule will have 
any negative economic impacts that will result in major increases in 
costs or prices to consumers, state and local governments or geographic 
regions, or that community economies will be weakened by the proposed 
rule. Additionally, commenters provided no credible evidence that the 
proposed rule will significantly and adversely affect employment, 
investments and/or productivity of U.S. based enterprises. The Services 
believe that the proposed rule will improve the overall consultation 
process and make it less burdensome, which should benefit Federal 
agencies and the regulated entities that seek permits, approvals, or 
funding from them. Moreover, action agencies already must have the 
wherewithal to determine if their action ``may affect'' listed species 
or critical habitat. Further, the proposed rule does not require action 
agencies to bypass informal consultation. Finally, action agencies can 
choose to continue to take advantage of informal consultation 
procedures if they believe that their resources would be strained by 
making unilateral applicability determinations.
    Comment: A commenter asserted that without the requirement to 
obtain Service concurrence, the burden of species protection will fall 
on state, local, tribal governments and private industry.
    Response: The proposed rule does not change the protections, 
standards or obligations under the Endangered Species Act. Under the 
proposed rule, Federal agencies still have a responsibility to ensure 
that their action is not likely to jeopardize the continued existence 
of listed species or adversely modify or destroy critical habitat. This 
rule does not preclude informal consultation, and formal consultation 
is still required where the action is likely to adversely affect listed 
species and critical habitat. Therefore, no new responsibilities for 
species protection will be transferred to non-Federal entities by this 
rule.
    Comment: Several commenters suggested the proposed rule is a 
``major rule'' as defined by the Small Business Regulatory Enforcement 
Fairness Act.
    Response: Subtitle E of the Small Business Regulatory Enforcement 
and Fairness Act (also known as the ``Congressional Review Act'' or 
CRA) establishes procedures for Congressional review of Federal agency 
final rules. Under the CRA, a rule cannot take effect until a copy of 
the rule and various supporting documentation have been

[[Page 76275]]

submitted to both GAO and Congress. For ``major'' rules, the rule 
cannot take effect until 60 days after it has been submitted, in order 
to allow Congress time to consider and take action on the rule if it so 
chooses. This waiting period does not apply to rules not designated as 
major. The CRA defines ``major'' as any rule that the Administrator of 
the Office of Information and Regulatory Affairs finds has resulted in 
or is likely to result in: (A) An annual effect on the economy of $100 
million or more; (B) a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (C) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets. This rule is not a major 
rule as that term is defined in the CRA. It will become effective 30 
days after it has been published in the Federal Register.
    Comment: Several commenters suggested the proposed rule is a 
significant rule under Executive Order 12866.
    Response: We agree that this rule is a significant rule. As such, 
it has been submitted to the Office of Management and Budget for 
review. We note that while the rule is ``significant'' under the 
definition provided in EO 12866, it is not ``economically 
significant.''

Proposed Changes to 50 CFR Part 402

Definitions (Sec.  402.02)

    This section sets out definitions of terms. As noted above, the 
proposed rule altered only three definitions. Only comments that 
specifically addressed the definitions used in this rule are discussed 
in this section.

Biological Assessment

    A sentence was added to the definition of biological assessment. As 
delineated above, this additional regulatory text requires action 
agencies to describe with specificity where the relevant information 
can be found in an alternative document submitted in lieu of a 
biological assessment.
    Comment: We received several comments that expressed concern that 
the proposed change to the definition of biological assessment would 
create more work for the Services and therefore be less efficient. 
These commenters thought that action agencies might not describe where 
the relevant analyses for initiation of consultation could be found in 
the alternative document. Another commenter thought that documents 
prepared for other purposes may not properly analyze all the potential 
effects. Finally, we received a comment that this change is more 
efficient.
    Response: We agree with the comment that the consultation process 
will be more efficient if the rule expressly allows for flexibility in 
the format of the information submitted by the action agency. However, 
it would not be more efficient and could add unnecessary delays if 
action agencies simply attached the alternate document to the request 
for consultation. Thus, in the preamble to the proposed rule we noted 
that it was the action agency's responsibility to identify the relevant 
information from the alternate document being used in place of a 
biological assessment. To strengthen this message, a final sentence has 
been added to the regulatory text in the final rule to make it clear 
that the action agency must provide a guide or statement as to where 
the relevant information can be found. The requirements for initiation 
of consultation set out at 402.14(c) remain unchanged. If the document 
prepared for ``other purposes'' does not include all required 
information, then consultation is not initiated and the action agency 
may have to provide supplemental information.
    Comment: Action agencies are likely to rely on documents other than 
their biological assessments to analyze the impacts to species and 
critical habitat, which will increase the complexity of environmental 
analyses performed by an action agency.
    Response: The Services intend for this modification to recognize 
current practice and disagree that it will increase the complexity of 
environmental analysis. Currently only Federal ``major construction 
activities'' require preparation of biological assessments. Other 
Federal actions may be subject to environmental reviews under other 
environmental laws, in particular the National Environmental Protection 
Act (NEPA). Most Environmental Impact Statements (EISs) include 
analyses of effects of proposed actions on threatened and endangered 
species; these analyses can be as robust as those presented in 
biological assessments. In circumstances where Federal agencies have 
conducted sufficient analysis, they should be able to benefit by 
relying on that analysis in the interagency consultation process. As 
discussed above, however, the Services have added language to the final 
rule to ensure that the information requirements for a consultation 
specified in 50 CFR 402.14(c) are identified.
    Cumulative effects.
    There were no changes between the proposed rule and this final 
rule.
    Comment: Several commenters questioned exclusion of future Federal 
actions from consultations, claiming either there is no basis for the 
exclusion or that it provided a way for Federal agencies to not consult 
on future actions. Some commenters stated that they believed this 
clarification is consistent with the Services' practice.
    Response: The amendment to the cumulative effects language is to 
clarify and distinguish the term ``cumulative effects'' under the ESA 
from the term ``cumulative impacts'' under the NEPA. Nothing in the 
rephrasing of the definition of cumulative effects changes the Services 
current practice. That is, the effects analysis in consultations under 
the 1986 regulations does not include future Federal actions that have 
not undergone consultation. Future Federal actions that have already 
undergone consultation are added to the environmental baseline; they 
are weighed, therefore, in the calculus of how the action under 
consultation is likely to affect listed species. Federal actions that 
have not undergone consultation will have to do so before they could 
proceed in compliance with section 7(a)(2). The effects from those 
actions, therefore, will be considered in a separate consultation and 
it would not be appropriate to include them as cumulative effects.
    Comment: Some commenters thought that informal grouped actions may 
contribute to cumulative effects and should be considered. Other 
commenters thought the proposed definition would encourage or allow 
agencies to move forward with multiple, small-scale projects. A 
commenter noted that cumulative effects omitted Tribal activities.
    Response: Any effect or activity that was considered as a 
cumulative effect under the 1986 regulations, will be considered under 
this rule. This rule clarifies the current regulatory definition of 
cumulative effects and distinguishes it from the definition of 
``cumulative impact'' in NEPA. It does not change any requirements or 
factors to be considered from the 1986 regulations. As set out in the 
standardized paragraph in the Consultation Handbook, cumulative effects 
include the effects of ``future State, tribal, local or private actions 
that are reasonably certain to occur in the action area.* * *'' Joint 
Endangered Species Consultation Handbook, p.4-30 (March 1998 Final), 
(hereafter

[[Page 76276]]

``Consultation Handbook''). The change to the definition in the 1986 
regulations will not exclude any contributions to cumulative effects 
that would be appropriately reviewed under the 1986 regulations and 
should not encourage action agencies to move forward with ``small-
scale'' and/or grouped projects. The change in definition of cumulative 
effects does not change any evaluations, procedures, obligations, or 
responsibilities for the action agency or the Service.

Effects of the Action

    We made several changes in the definition of ``effects of the 
action'' in response to public comments. First, we have added a 
sentence defining ``direct effects'' in order to clarify the 
distinction between ``direct effects'' and ``indirect effects.'' In 
addition, we have modified the sentence that, in the proposed rule, 
read as follows: ``If an effect will occur whether or not the action 
takes place, the action is not a cause of the direct or indirect 
effect.'' In the final rule, the sentence reads: ``If an effect will 
occur whether or not the action takes place, the action is not an 
essential cause of the indirect effect.'' These changes were intended 
to clarify the manner in which direct and indirect effects are 
identified and analyzed, which has been an area of confusion since 
these terms were created in the 1986 regulations. The removal of the 
reference to ``direct effects'' from the original sentence in the 
proposed rule is intended to clarify that the quoted sentence provides 
further clarification of the term ``essential cause'' as applied to 
indirect effects. By focusing the regulatory revision on indirect 
effects we do not intend to suggest that an effect that will occur 
whether or not the action takes place is a direct effect of the action. 
To the contrary, in most instances such an effect would not be 
considered a direct effect unless, as discussed below, it is one that 
inevitably will result from the action. Rather, our purpose is to 
emphasize that the causal connection between a proposed action and 
indirect effects must be examined closely.
    Comment: The Services received a wide range of comments regarding 
the proposed modification of the definition of ``effects of the 
action.'' Several commenters stated that the Services should better 
explain the appropriate standard of causation with respect to direct 
and indirect effects. Many comments recommended no change to the 
existing definition of ``effects of the action.'' Other commenters 
recommended the use of proximate cause instead of essential cause. 
Alternatively, one commenter suggested that the appropriate standard 
for causation is that there needs to be a ``close causal connection.''
    Response: The ESA does not specify the nature of the causal 
relationship that must be examined when considering whether a Federal 
agency action is likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse modification of 
critical habitat. Nevertheless, an analysis under section 7(a)(2) 
necessarily requires examining the causal connection between the agency 
action and the ultimate biological effects on a species. In the 1986 
regulations, the Services recognized three categories of effects: 
Direct, indirect, and cumulative. Each category is distinguished, in 
part, from the other two by the degree of causal connection it has to 
the proposed Federal action--i.e., by the degree to which the taking of 
the Federal action can be said to be responsible for the cause of the 
effect occurring to the species. These categories remain intact in the 
regulations the Services are adopting today.
    At one end of the spectrum are direct effects. As the Services have 
explained in the Consultation Handbook, direct effects are the direct, 
immediate effects on the species or its habitat from the taking of the 
action itself, or from interdependent or interrelated activities. These 
are the effects that will inevitably occur if the action is taken. For 
example, if permission or funding is provided for the construction of a 
road, constructing the road will result in direct, easily identifiable 
modifications to the landscape. The modifications are inescapable; if 
the action is taken as proposed, they will occur. As the revised 
definition of ``effects of the action'' explains, direct effects are 
not dependent upon the occurrence of any additional intervening actions 
for the impact to listed species or critical habitat to occur. Thus, 
there is no question that the action agency is responsible for these 
effects. Conversely, if the road is not constructed, the modifications 
would not occur (or at least not as a result of the construction), so 
any effects that would occur anyway are caused by something else, not 
the permission of or funding for the construction of the road. This 
does not mean that if a Federal action will cause a direct change to 
the landscape that impacts listed species or critical habitat it can 
avoid consultation merely because another private or non-Federal public 
actor would take a similar action if the Federal agency did not. Thus, 
using the road example, if a private developer were expected to build 
the road if the action agency does not fund, permit, or build the road, 
the action agency could not avoid analyzing the direct effects of the 
road construction solely because somebody else would build the road 
anyway.
    At the other end of the spectrum are cumulative effects. They are 
the effects of other entities' actions in the action area of the 
proposed Federal action that are reasonably certain to occur, but that 
have no causal connection to the proposed Federal action. In other 
words, they are effects that would be reasonably certain to occur in 
the action area even if the proposed Federal action was never taken. 
There is no question that for these effects within the action area, the 
agency is not responsible, even though these effects are taken into 
account when analyzing the likelihood a particular Federal action might 
jeopardize the continued existence of a listed species or destroy or 
adversely modify its critical habitat.
    Located along the spectrum between the direct effects and 
cumulative effects are other effects that are more difficult to define 
precisely. These effects are distinguished from direct effects in that 
they depend on the occurrence of some intervening factors to bring them 
about. It is more difficult in these situations to determine where to 
precisely draw a line as to whether the Federal agency should be 
considered responsible for those effects within the application of 
section 7(a)(2). In the 1986 regulations the Services determined that 
action agencies should be responsible for what was termed ``indirect 
effects,'' which were defined as those effects that are ``caused by'' 
the proposed Federal action and are ``reasonably certain to occur,'' 
and are ``later in time.'' The level of causal connection that must 
exist for an effect to be considered to be ``caused by'' the taking of 
the proposed Federal action and the degree of certainty that must exist 
for an effect to be considered ``reasonably certain to occur'' has not 
been clearly explained previously.
    In the preambles for the proposed and final rules for the 1986 
regulations, the Services described indirect effects as those that are 
``induced by'' the Federal action, but did not elaborate further. The 
Services also referred to National Wildlife Federation v. Coleman, 529 
F.2d 359 (5th Cir. 1976), in which the U.S. Court of Appeals for the 
Fifth Circuit found a need to look at the total impacts of a Federal 
agency action, not simply those direct effects that occur within the 
project's footprint. A close read of the Coleman case reveals its 
consistency with the understanding the Services are articulating here. 
In

[[Page 76277]]

particular, the court's decision in Coleman was based on consideration 
of facts reflected in the particular record before the court; and, that 
record indicated that it was virtually certain that future development 
would follow construction of the highway interchange that was proposed 
by the Federal agency and that this development would impact the 
species.
    The Services have also referenced a ``but for'' standard of 
causation in a number of contexts. Under a ``but for'' test, any effect 
that would not occur ``but for'' the proposed action is considered to 
be caused by the proposed action. See Consultation Handbook 4-27 
(interrelated and interdependent); 4-47 (amount or extent of incidental 
take); 1986 preamble (interrelated and interdependent) 51 FR 19932 
(1986). However, neither the 1986 rule nor the Consultation Handbook 
specifically articulate the ``but for'' standard as applicable to 
determining whether something is an indirect effect.
    At all times, the Services have understood there to be a 
requirement for a close causal connection between a Federal agency 
action and an effect on the species. In seeking to clarify what is 
meant by indirect effects, in the context of ESA section 7, it is 
important to keep the purpose of the section 7(a)(2) in mind. The 
purpose is to require Federal agencies to ensure that their actions are 
not likely to jeopardize listed species or adversely modify or destroy 
critical habitat. The ESA does not seek to bring the otherwise 
beneficial and necessary actions of those agencies to a halt based on 
speculation about what could conceivably happen in the future as the 
result of the taking of an action. Thus, the 1986 regulations 
appropriately imposed constraints on the extent of the effects analysis 
by incorporating causation and foreseeablity standards.
    This rule clarifies the terms ``caused by'' and ``reasonably 
certain to occur'' in order to capture the appropriate practice of the 
Services to require a close causal connection. Essential cause is the 
standard used to determine whether a close causal connection exists 
between the action and the effect. Reasonably certain to occur is the 
standard used to determine the requisite confidence that an activity, 
which will result in an indirect effect, will occur. The changes are 
intended to promote consistency in section 7 consultations.
    The Services have chosen not to specifically employ, as suggested 
by some, the concept of ``proximate cause,'' which developed in the law 
of torts. Utilizing proximate cause would only complicate matters 
further as there is no commonly accepted, easily applied definition of 
proximate cause. Instead, we clarified the term ``caused by'' by 
incorporating new language that looks to whether the action is an 
``essential cause'' of a particular effect. The phrase ``essential 
cause'' denotes that the action is necessary or indispensable for the 
effect to occur. The addition of the term ``essential'' is meant to 
emphasize and reaffirm that the effects analysis is limited to those 
effects for which it is appropriate to hold the Federal agency 
responsible because there is a close causal connection between the 
Federal action under consultation and the effects on the species in 
question.
    The concept of ``essential cause'' is not a new one. The Services 
have previously recognized that to cause an effect under the ESA, the 
proposed Federal action ``must be essential in causing the effect to 
the species and also reasonably certain to occur.'' A 2003 joint 
agreement among BLM, Forest Service, FWS and NMFS explains that a 
proposed agency action must be ``essential'' in causing the effect to 
the species and also reasonably certain to occur in order to be 
recognized as an ``indirect effect'' under the Department's 
regulations. Application of the Endangered Species Act to proposals for 
access to non-Federal lands across lands administered by the Bureau of 
Land Management and the Forest Service, January 2003, at 2 (2003 Joint 
Agreement). On July 1, 2005, this memorandum was clarified by the 
Director, U.S. Fish and Wildlife Service. In that policy clarification, 
the Director again reiterated that the correct standard to determine if 
an indirect effect is caused by an action is whether that action is 
``essential'' for the effect to occur. Policy Clarification of March 
10, 2005 memo on Regarding Consultation on Requests for Access Across 
National Forest and Bureau of Management Lands, July 2005.
    Essential cause focuses on both the nature and degree of the 
connection between the agency action and the effect to the species. For 
example, if an indirect effect would occur regardless of the action, 
then the action is not an essential cause of that effect, and it would 
not be appropriate to consider its effects as an effect of the action. 
Similarly, when the agency action merely helps to facilitate an effect 
it is not necessarily an essential cause of the effect. In such 
circumstances, it is appropriate to consider the nature of intervening 
factors and whether and the extent to which the potential effect to the 
species requires independent action by someone other than the Federal 
agency or the entity it funded or authorized. Depending upon the 
particular factual circumstances, the proposed Federal action may not 
be essential in causing the effect to the species. Of course, when the 
effects to the species are caused by such independent activities they 
may be considered as cumulative effects, provided they are within the 
action area. The courts have long recognized the requirement for there 
to be a close causal relationship between an environmental effect and 
an alleged cause for that effect. See, Metropolitan Edison Co. v. 
People Against Nuclear Energy, 460 U.S. 766, 777 (1983) (in the context 
of examining cumulative effects under NEPA).
    Comment: We received several comments regarding the use of the term 
``reasonably certain to occur'' and the addition of the term ``clear 
and substantial'' information. Some commenters asserted that these 
terms as defined in the proposed rule were appropriate and reasonable. 
Some commenters disagreed that the term ``reasonably certain to occur'' 
was an appropriate standard while others questioned why the standard 
was not ``reasonably foreseeable.''
    Response: As noted above, the final rule also clarifies the term 
``reasonably certain to occur.'' Reasonably certain to occur is the 
standard used to determine the requisite confidence that an action, 
which will result in an effect, will occur. Like the phrase ``caused 
by'', the existing regulations do not define the phrase ``reasonably 
certain to occur.''
    The phrase ``reasonably certain to occur'' was first used in a 1981 
opinion issued by Department of the Interior's Office of the Solicitor 
as it related to cumulative impacts. The 1981 opinion was focused upon 
cumulative impacts and explained that:

    A non-Federal action is ``reasonably certain'' to occur if the 
action requires the approval of the state or local resource or land 
use control agency and such agencies have approved the action, and 
the project is ready to proceed. Other indications which may also 
support such a determination include whether the project sponsors 
proved assurance that the action will proceed, whether contracting 
has been initiated, whether there is obligated venture capital, or 
whether State or local planning agencies indicate that grant of 
authority for the action is imminent. These indications must show 
more than the possibility that the non-Federal project will occur; 
they must demonstrate with reasonable certainty that it will occur. 
The more that state or local administrative discretion remains to be 
exercised before a proposed state or private action can proceed, the 
less there is reasonable certainty that the project will be 
authorized. In summary, the consultation team should consider only 
those state or private projects which satisfy all major land

[[Page 76278]]

use requirements which appear to be economically viable.

Solicitor's Opinion, M-36938, Cumulative Impacts under Section 7 of the 
Endangered Species Act, August 27, 1981 (emphasis in original).
    Additionally, the preamble to the 1986 regulation explained the 
Services' interpretation of the phrase ``reasonably certain to occur.'' 
51 FR 19,926, 19,932 (June 3, 1986). The preamble notes that some 
commenters ``believed that the proposed [definition] of `cumulative 
effects' and `effects of the action,' '' both of which were defined to 
include only effects that are ``reasonably certain to occur,'' ``were 
too narrow.'' Id. As described in the preamble, the commenters 
``suggested that cumulative effects should include the effects of all 
reasonably foreseeable future Federal, State and private actions,'' 
because to do so ``would be more in line with that mandated under 
NEPA,'' and ``any lesser review could detrimentally affect endangered 
species.'' Id. While the focus of the comments, and the Service's 
response, was on ``cumulative effects,'' rather than ``indirect 
effects,'' the Service's reasoning in rejecting the suggestion that the 
regulations rely on a broader or more lenient standard than 
``reasonably certain to occur'' applies equally to the use of the 
phrase in the definition of ``indirect effects.''
    The Service noted that ``NEPA is procedural in nature, rather than 
substantive, which would warrant a more expanded review of * * * 
effects'' than the ESA, which imposes ``a substantive prohibition.'' 
Id. at 19933. In other words, NEPA is designed to insure that a 
decision maker has a full complement of information about the possible 
environmental effects of the decision before making it; it does not, 
however, require that any particular decision be made. The theory is 
that the more information the decision maker has, the better the 
decision is likely to be. For that reason, requiring the consideration 
of all ``reasonably foreseeable'' environmental effects makes sense in 
the NEPA context. The ESA, on the other hand, is designed to insure the 
accomplishment of a particular substantive objective--i.e., that 
Federal actions are not likely to jeopardize the continued existence of 
listed species or adversely modify or destroy critical habitat. Unlike 
NEPA, the prohibition in the ESA can stop an otherwise worthwhile 
Federal project from going forward. For that reason, it makes sense 
that the Service consider ``indirect effects'' to be only those 
``reasonably certain to occur,'' rather than merely ``reasonably 
foreseeable.'' As the Service put it, ``[o]therwise, in a particular 
situation, the jeopardy prohibition [of the ESA] could operate to block 
`nonjeopardy' actions,'' id., based on mere speculation about the 
effects that might occur to listed species or critical habitat. In the 
Service's view, ``Congress did not intend that Federal actions be 
precluded'' based on speculative effects. Id.
    The discussion in the 1986 preamble makes clear that ``reasonably 
certain to occur'' focuses on the probability that a future action will 
occur and is a stricter standard than ``reasonably foreseeable.'' As 
the Service explained, ``reasonably certain to occur'' requires ``more 
than a mere possibility that the action may proceed.'' Id. At the same 
time, however, the Service recognized that `` `reasonably certain to 
occur' does not mean that there is a guarantee that the action will 
occur. [Agencies should consider the] effects of those actions that are 
likely to occur, bearing in mind the economic, administrative, or legal 
hurdles which remain to be cleared.'' Id.
    The Consultation Handbook provides additional illustration of the 
exacting nature of determining whether a future action, which may cause 
an effect, is ``reasonably certain to occur.'' The Services emphasized 
in the discussion of cumulative effects that when looking at future 
actions, the ``action agency and the Services should consider the 
economic, administrative, and legal hurdles remaining before an action 
proceeds.'' Id. at 4-30. The Services further explained that:

    Indicators of actions ``reasonably certain to occur'' may 
include, but are not limited to: approval of the action by State, 
tribal, or local agencies or governments (e.g. permits, grants); 
indications by State, tribal or local agencies or governments that 
granting authority for the action is imminent; project sponsors' 
assurance the action will proceed; obligation of venture capital; or 
the initiation of contracts. The more State, tribal or local 
administrative discretion remaining to be exercised before a 
proposed non-Federal action can proceed, the less there is a 
reasonable certainty the project will be authorized.

Consultation Handbook, at 4-30.
    In the context of cumulative effects, the discussion of 
``reasonably certain to occur'' necessarily focused on the certainty of 
activities occurring because by definition the effects at issue do not 
derive from the Federal action but from activities of others operating 
in the action area of the action under consultation. In similar 
fashion, some indirect effects of the action ultimately may occur only 
after subsequent activities of others, which themselves are caused by 
the Federal action under consultation. In the context of indirect 
effects, the Consultation Handbook notes that ``reasonably certain to 
occur may be evidenced by appropriations, work plans, permits issued, 
or budgeting; they follow a pattern of activity undertaken by the 
agency in the action area, or they are the logical extensions of the 
proposed action.'' Id. at 4-28. Just as with cumulative effects, then, 
evaluating and establishing the reasonable certainty that those 
activities will occur and produce the indirect effect of concern is 
appropriate where indirect effects also depend on a subsequent actor to 
bring about their outcome. If the subsequent activity is not reasonably 
certain to occur then the indirect effect is not reasonably certain to 
occur. Reasonably certain to occur allows for a possibility that the 
activity will not occur, but that possibility has to be low.
    Finally, the 2003 Joint Agreement among BLM, Forest Service, FWS 
and NMFS provides guidance on the ``reasonably certain to occur'' 
standard:

    ``Reasonably certain to occur'' requires existence of clear and 
convincing information establishing that an effect to the species or 
its habitat that will be caused by the proposed action is reasonably 
certain to occur. This is a rigorous standard; it is not based on 
speculation or the mere possibility that effects to the species may 
occur. Nor is this a foreseeability standard as is commonly used in 
NEPA analysis. If no such information exists, or is speculative or 
not credible, then that effect is not reasonably certain to occur 
and should be disregarded. In no event should a conclusion be 
reached that some effect is reasonably certain to occur absent clear 
and convincing information to support that finding in the record.

2003 Joint Agreement at 2. Similarly, the final rule incorporates a 
``clear and substantial'' standard to reemphasize that there must be a 
firm basis, based on best available scientific and commercial data, for 
believing that a future activity is reasonably certain to occur before 
its effects should be viewed as caused by the Federal action under 
consultation. The information need not be dispositive, free from all 
uncertainty, or immune from disagreement to meet this standard. 
However, there must be a clear and substantial basis to support the 
conclusion.
    Comment: Several commenters asked questions about how the use of 
the word ``essential'' will impact baseline analysis with regard to 
jeopardy opinions. Specifically, they questioned how ``essential 
cause'' would be employed in cases where a species status is seriously 
imperiled.
    Response: Nothing in this rule changes the jeopardy analysis. The 
term ``essential'' clarifies the term ``caused

[[Page 76279]]

by'' as used in the definition of indirect effects. After the effects 
of the action are determined, the impacts of those effects are then 
analyzed to determine if the effects of the action (combined with 
cumulative effects) are likely to jeopardize the continued existence of 
listed species or adversely modify or destroy critical habitat. The 
status of the species is part of that analysis but the action under 
consultation must still impact the species in a negative fashion in 
order for there to be a jeopardy determination.

Applicability (Sec.  402.03)

    Paragraph (b)(2) was amended and now only pertains to effects that 
are ``manifested through global processes.'' The subparagraphs of 
(b)(2) are clarified and further limit the application of this 
paragraph. Paragraph (b)(3)(iii) was deleted.
    Initially, we will address the general comments on this section as 
a whole. Comments specific to various subparts of this section are 
discussed below.
    Comment: While some commenters supported the change in the 
applicability section under the proposed rule, many commenters asserted 
the Services cannot allow action agencies to make applicability 
determinations as set out in the rule. That is, they asserted that 
action agencies cannot decide, without formal or informal consultation 
with the Services, that their action has no effect or is essentially 
not likely to adversely affect listed species or critical habitat. 
These commenters relied on the wording of section 7(a)(2) of the ESA 
that states ``Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action* * *.'' The 
commenters read these words to be absolute. That is, they read the 
words ``in consultation with'' to mean that action agencies must enter 
into formal or informal consultation with the Secretary to insure that 
any of their actions will not violate the prohibitions set out in the 
remainder of section 7(a)(2).
    Response: The existing regulations recognize that there are a 
variety of ways that action agencies can meet their procedural 
obligations under section 7(a)(2). The 1986 regulations, the thousands 
of interactions between the Services and the action agencies over the 
past thirty years, and these revisions are, in addition to the formal 
and informal consultation procedures established under the regulations, 
part of the framework for ``consultation'' and ``assistance'' provided 
to action agencies to allow them to determine the steps they must take 
to insure that their actions are not likely to jeopardize the continued 
existence of listed species or adversely modify or destroy critical 
habitat.
    Section 7 does not define the term ``consultation.'' While Congress 
has provided certain requirements for what should happen after 
consultation, the statute does not provide any direction or criteria as 
to how consultation is to be carried out. In relevant part, section 7 
provides that:

    [e]ach Federal agency shall, in consultation with and with the 
assistance of the Secretary, insure that any action authorized, 
funded, or carried out by such agency * * * is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse 
modification of habitat. * * *

16 U.S.C. 1531(a)(2) (emphasis added). Neither the term 
``consultation'' nor ``assistance'' is defined within the section, or 
elsewhere in the ESA. These terms are quite broad and suggest that 
Congress has provided a great deal of discretion to define consultation 
and assistance in this provision, as it has throughout the ESA. 
Furthermore, Congress did not specify that the consultation obligation 
can be fulfilled only by consulting with the Services on each and every 
action they take. Indeed, we believe the mandatory term ``shall'' in 
section 7(a)(2) refers to the obligation of the action agency to avoid 
jeopardy or destruction or adverse modification of critical habitat, 
not to a requirement to consult on each and every action. Recently, one 
court determined that a broad interpretation of section 7(a)(2) to 
require consultation in each and every case does not ``comport with 
either the plain meaning of the ESA or the legislative intent 
underlying it.'' Defenders of Wildlife v. Kempthorne, 2006 U.S. Dist. 
LEXIS 71137 (D.D.C. Sept. 29, 2006).
    An interpretation that requires ``consultation'' under 7(a)(2) on 
each and every action ignores both the 1986 regulations, and the 
Services practice since then. The Services established the current 
process as a regulatory mechanism for efficient implementation of the 
mandate to provide their expertise to the action agencies. The 1986 
regulations recognized that case-by-case consultation on certain 
actions was not necessary or beneficial. The Services devised off-ramps 
to eliminate those actions from case-by-case consultation.
    The 1986 regulations provided that action agencies need only 
consult case-by-case on those actions that are ``discretionary.'' 
Section 7(a)(2) does not specifically recognize such an exception, but 
the Services recognized that there was no benefit in consulting case-
by-case on actions that the action agencies were powerless to modify 
for the benefit of listed species. The Supreme Court recently upheld 
the Services' regulatory interpretation that non-discretionary agency 
actions could be excluded from case-by-case consultation. National 
Association of Home Builders v. Environmental Protection Agency, 127 S. 
Ct. 2518 (2007).
    Similarly, the Services have long implemented section 7(a)(2) 
through regulations that exclude from case-by-case consultation those 
actions that the action agency determines will have ``no effect'' on 
listed species or critical habitat even though the statute makes no 
express exception for such actions. The original section 7 regulations, 
promulgated in 1978, specified that ``[i]f a Federal agency decides 
that its activities or programs will not affect listed species or their 
habitat, consultation shall not be initiated unless required by the 
Service.'' 43 FR 870, 875 (Jan. 4, 1978). Subsequently, when the 
Services modified the regulatory scheme in 1986, we implicitly retained 
the no effect/may affect threshold for consultation. Thus, section 
402.14 requires consultation for any action that ``may affect'' listed 
species or critical habitat. The courts have routinely upheld action 
agency ``no effect'' determinations, notwithstanding that they have 
been made without consultation with the Services. See, e.g., Southwest 
Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443 
(9th Cir. 1996) (upholding Forest Service determination that salvage 
timber sale would have ``no effect'' on listed species and concluding 
that formal consultation was not necessary); Ground Zero Center for 
Non-Violent Action v. United States Department of Navy, 383 F.3d 1082 
(9th Cir. 2004); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 
n.8 (9th Cir. 1994); and, Defenders of Wildlife v. Kempthorne, at 60. 
In addition, Congress has amended the ESA several times and never made 
any changes to section 7 that would express their disapproval with this 
interpretation.
    The rule that is being published today is an incremental change 
that builds upon the existing regulatory framework and attempts to 
address the increased burden of informal consultations, case-by-case, 
as well as the new challenge the agencies and Services confront 
regarding case-by-case consultation as it relates to greenhouse gas 
emissions and climate change.
    The Services have seen steady increases in section 7 consultations 
since adoption of the 1986 regulations.

[[Page 76280]]

For example, the number of consultations completed by FWS doubled 
between fiscal year 1996 and fiscal year 2002. Although NMFS' workload 
has also increased significantly due to new listings and court 
decisions, it has not collected these statistics. As the number of 
section 7 consultations has increased, the workload for the Services 
has grown. For example, requests to the Services for technical 
assistance or section 7 consultations increased from 41,000 requests in 
1999 to over 68,000 requests in fiscal year 2006. In 2006, there were 
39,346 requests for technical assistance, 26,762 requests for informal 
consultations, and 1,936 requests for formal consultations.
    To meet these challenges, the Services have developed several 
carefully crafted and narrow categories of actions for which they 
believe case-by-case consultation would not be necessary or beneficial. 
The pre-existing ``may affect'' trigger for formal consultation is 
retained, except in the case of projects where no take is anticipated 
and the effects are: Wholly beneficial; or cannot be measured or 
detected in a manner that permits meaningful evaluation; or are 
manifested through global processes (and meet one of several additional 
criteria). The Services have determined that such actions are far 
removed from any potential for jeopardy or destruction or adverse 
modification of critical habitat, and consultation in these limited 
circumstances is therefore not required. In 1986, the Services 
recognized the key concern was to set thresholds for consultation 
(there speaking of formal consultation) that are ``sufficiently low to 
allow Federal agencies to satisfy their duty to `insure' under Section 
7(a)(2).'' 51 FR 199926. The applicability criteria established in the 
final rule do that. As noted, the action agencies already make no 
effect/may affect determinations without assistance from the Services. 
Clearly such actions do not violate the substantive standard of section 
7(a)(2). The Services have also determined that no further consultation 
and advice on specific actions is necessary for those agency actions 
that are wholly beneficial. Because of the threshold requirement that 
no take is anticipated and the requirement that the action be 
beneficial in its entirety, such actions also inherently are not likely 
to jeopardize listed species or adversely modify or destroy critical 
habitat. The threshold of no take being anticipated also applies for 
those effects that are so insignificant that they cannot be measured or 
detected in a manner that permits meaningful evaluation. These effects 
were previously determined to be ``not likely to adversely affect.'' 
Consultation Handbook, at XV. By definition, then these effects are not 
likely to adversely affect and cannot be likely to jeopardize listed 
species or adversely modify critical habitat and, therefore, no further 
consultation on the specific action is necessary. Finally, section 
402.03(b)(2) provides that effects that are manifested through global 
processes (and meet one or more of the additional criteria) do not 
require further consultation. As discussed in more detail below, the 
Services believe that section 7(a)(2) simply was not intended to deal 
with global processes at individual project level consultations. 
Further, the threshold requirement of no anticipated take and the 
additional criteria set out in 402.03(b)(2) limit the use of this 
subparagraph to only those effects from an action that would not be 
likely to jeopardize listed species.
    The Services' determination that case-by-case consultation is not 
necessary or beneficial in these instances is consistent with the 
latitude Congress has granted the Services to implement the procedural 
aspects of section 7(a)(2), including the development of appropriate 
triggers for case-by-case consultation. In addition, through this 
regulation we provide our advice and guidance to action agencies with 
regard to those narrow categories set out in section 402.03. Thus, we 
have determined that compliance with this rule by action agencies 
satisfies the procedural requirements of section 7(a)(2) for those 
narrow categories of actions set out in section