Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation, 35178-35193 [2018-15812]

Agencies

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

[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35178-35193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15812]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. FWS-HQ-ES-2018-0009; FXES11140900000-189-FF09E300000; 
Docket No. 180207140-8140-01; 4500090023]
RIN 1018-BC87; 0648-BH41


Endangered and Threatened Wildlife and Plants; Revision of 
Regulations for Interagency Cooperation

AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine 
Fisheries Service (NMFS), National Oceanic and Atmospheric 
Administration (NOAA), Commerce.

ACTION: Proposed rule.

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SUMMARY: We, FWS and NMFS (collectively referred to as the ``Services'' 
or ``we''), propose to amend portions of our regulations that implement 
section 7 of the Endangered Species Act of 1973, as amended. The 
Services are proposing these changes to improve and clarify the 
interagency consultation processes and make them more efficient and 
consistent.

DATES: We will accept comments from all interested parties until 
September 24, 2018. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES below), the deadline for submitting 
an electronic comment is 11:59 p.m. Eastern Standard Time on this date.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2018-0009, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-HQ-ES-2018-0009; U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or 
National Marine Fisheries Service, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Request for Information below for more information).

FOR FURTHER INFORMATION CONTACT: Craig Aubrey, U.S. Fish and Wildlife 
Service, Division of Environmental Review, 5275 Leesburg Pike, Falls 
Church, VA 22041-3803, telephone 703/358-2442; or Cathy Tortorici, ESA 
Interagency Cooperation Division, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910, telephone 301/427-8495. If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The purposes of the Endangered Species Act of 1973, as amended 
(``ESA'' or ``Act''; 16 U.S.C. 1531 et seq.) are to provide a means to 
conserve the ecosystems upon which listed species depend, to develop a 
program for the conservation of listed species, and to achieve the 
purposes of certain treaties and conventions. Moreover, the Act states 
that it is the policy of Congress that the Federal Government will seek 
to conserve threatened and endangered species, and use its authorities 
in furtherance of the purposes of the Act.
    The Secretaries of the Interior and Commerce 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 U.S. Fish and Wildlife 
Service (FWS) and by the Secretary of Commerce to the Assistant 
Administrator for the National Marine Fisheries Service (NMFS). 
References in this document to ``the Services'' mean FWS and NMFS.
    There have been no comprehensive amendments to the Act since 1988, 
and no comprehensive revisions to the implementing regulations since 
1986. In the years since those changes took place, 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 numerous court decisions regarding almost every provision of 
the Act and its implementing regulations; the Government Accountability 
Office has completed reviews of the Act's implementation; there have 
been many

[[Page 35179]]

scientific reviews, including review by the National Research Council; 
multiple administrations have adopted various policy initiatives; and 
non-governmental entities have issued reports and recommendations.
    Title 50, part 402, of the Code of Federal Regulations establishes 
the procedural regulations governing interagency cooperation under 
section 7 of the Act, which requires Federal agencies, in consultation 
with and with the assistance of the Secretaries of the Interior and 
Commerce (the ``Secretaries''), to insure that any action authorized, 
funded, or carried out by such agencies is not likely to jeopardize the 
continued existence of endangered or threatened species or result in 
the destruction or adverse modification of critical habitat of such 
species. These proposed regulatory amendments are intended to address 
the Services' collective experience of more than 40 years implementing 
the Act and several court decisions.
    In carrying out Executive Order 13777, ``Enforcing the Regulatory 
Reform Agenda,'' the Department of the Interior (DOI) published a 
document with the title ``Regulatory Reform'' in the Federal Register 
of June 22, 2017 (82 FR 28429). The document requested public comment 
on how DOI can improve implementation of regulatory reform initiatives 
and policies and identify regulations for repeal, replacement, or 
modification. This proposed rule addresses some of the comments that 
DOI has received in response to the regulatory reform docket.
    As part of implementing E.O. 13777, NOAA published a notice 
entitled, ``Streamlining Regulatory Processes and Reducing Regulatory 
Burden'' (82 FR 31576, July 7, 2017). The notice requested public 
comments on how NOAA could continue to improve the efficiency and 
effectiveness of current regulations and regulatory processes. This 
proposed rule addresses some of the comments NOAA received from the 
public.
    This proposed rule is one of three related proposed rules that are 
publishing in today's Federal Register. All of these documents propose 
revisions to various regulations that implement the Act. Beyond the 
specific revisions to the regulations highlighted in this proposed 
rule, the Services are comprehensively reconsidering the processes and 
interpretations of statutory language set out in part 402. Thus, this 
rulemaking should be considered as applying to all of part 402, and as 
part of the rulemaking initiated today, the Services will consider 
whether additional modifications to the interagency cooperation 
regulations would improve, clarify, or streamline the administration of 
the Act. We seek public comments recommending, opposing, or providing 
feedback on specific changes to any provisions in part 402 of the 
regulations, including but not limited to revising or adopting as 
regulations existing practices or policies, or interpreting terms or 
phrases from the Act. Based on comments received and on our experience 
in administering the Act, the final rule may include revisions to any 
provisions in part 402 that are a logical outgrowth of this proposed 
rule, consistent with the Administrative Procedure Act.
    In proposing the specific changes to the regulations in this rule, 
and setting out the accompanying clarifying discussion in this 
preamble, the Services are proposing prospective standards only. 
Nothing in these proposed revisions to the regulations is intended to 
require that any previous consultations under section 7(a)(2) of the 
Act be reevaluated on the basis of the final rule at such time that the 
final rule becomes effective.
    The Services anticipate that the proposed changes, if finalized, 
will improve and clarify interagency consultation, and make it more 
efficient and consistent, without compromising conservation of listed 
species. Many of the changes should help reduce the costs of 
consultation. For example, clarifying the definition of ``effects of 
the action'' should decrease consultation timeframes (and costs) by 
eliminating confusion regarding application of terms in the existing 
definition, which has resulted in time being spent determining how to 
categorize an effect, rather than simply determining what the effects 
are regardless of category. As another example, codifying alternative 
consultation methods and the ability to adopt portions of Federal 
agencies' documents should reduce overall consultation times and costs. 
Increased use of programmatic consultations will reduce the number of 
single, project-by-project consultations, streamline the consultation 
process, and increase predictability and consistency for action 
agencies. Eliminating the need to reinitiate consultation in certain 
situations will avoid impractical and disruptive burdens (and costs), 
without compromising conservation of listed species. We seek comment on 
(1) the extent to which the changes outlined in this proposed rule will 
affect timeframes and resources needed to conduct consultation and (2) 
anticipated cost savings resulting from the changes.
    While not reflected in any proposed changes to our regulations at 
this time, we also seek comment on the merit, authority, and means for 
the Services to conduct a single consultation, resulting in a single 
biological opinion, for Federal agency actions affecting species that 
are under the jurisdiction of both FWS and NMFS.

Proposed Changes to 50 CFR Part 402

Section 402.02 Definitions

    This section sets out definitions of terms that are used throughout 
these proposed regulations. Some of these terms are further discussed 
as they pertain to the consultation procedures in appropriate, 
subsequent sections. Below we discuss those definitions that would be 
revised or added by these proposed regulations.
Definition of Destruction or Adverse Modification
    We propose to revise the definition of ``destruction or adverse 
modification'' by adding the phrase ``as a whole'' to the first 
sentence and removing the second sentence of the current definition. 
The Act requires Federal agencies, in consultation with and with the 
assistance of the Secretaries, to insure that their actions are not 
likely to jeopardize the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat of such species. In 1986, the Services established 
a definition for ``destruction or adverse modification'' (Sec.  402.02) 
that was found to be invalid by the U.S. Court of Appeals for the Fifth 
(2001) and Ninth (2004) Circuits. In 2016, we revised the definition, 
in part in response to these court rulings. We now propose to further 
clarify the definition, removing language that is redundant and has 
caused confusion about the meaning of the regulation.
Background of the Definition of ``Destruction or Adverse Modification''
    In 1978, the Services promulgated regulations governing interagency 
cooperation under section 7 of the Act. (50 CFR part 402) (43 FR 870; 
Jan. 4, 1978). These regulations provided a definition for 
``destruction or adverse modification'' of critical habitat, which was 
later updated in 1986 to conform with amendments made to the Act. The 
1986 regulations defined ``destruction or adverse modification'' as: 
``a direct or indirect alteration that appreciably diminishes the value 
of critical habitat for both the survival and recovery of a

[[Page 35180]]

listed species. Such alterations include, but are not limited to, 
alterations adversely modifying any of those physical or biological 
features that were the basis for determining the habitat to be 
critical.'' (50 CFR 402.02) (51 FR 19926; June 3, 1986). The preamble 
to the 1986 regulation contained relatively little discussion on the 
concept of ``destruction or adverse modification of critical habitat.''
    In 2001, the Fifth Circuit Court of Appeals reviewed the 1986 
regulatory definition of destruction or adverse modification and found 
it exceeded the Service's discretion. Sierra Club v. U.S. Fish and 
Wildlife Service, 245 F.3d 434 (5th Cir. 2001). Specifically, the court 
found the regulatory definition to be invalid on its face and 
inconsistent with the Act. The court reasoned that the regulatory 
definition set too high a threshold for triggering adverse modification 
by its requirement that the value of critical habitat for both survival 
and recovery be appreciably diminished before adverse modification 
would be the appropriate conclusion. The court determined that the 
regulatory definition actually established a standard that would only 
trigger an adverse modification determination if the ``survival'' of 
the species was appreciably diminished, while ignoring the role 
critical habitat plays in the recovery of species. Citing legislative 
history and the Act itself, the court was persuaded that Congress 
intended the Act to ``enable listed species not merely to survive, but 
to recover from their endangered or threatened status.'' Sierra Club, 
245 F.3d at 438. Noting the Act defines critical habitat as areas that 
are ``essential to the conservation'' of listed species, the court 
determined that ``conservation'' is a ``much broader concept than mere 
survival.'' Sierra Club, 245 F.3d at 441. The court concluded that the 
Act's definition of conservation ``speaks to the recovery'' of listed 
species.
    In 2004, the Ninth Circuit Court of Appeals also reviewed the 1986 
regulatory definition of destruction or adverse modification. Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 
(9th Cir. 2004). That court agreed with the Fifth Circuit's 
determination that the regulation was facially invalid. The Ninth 
Circuit, following similar reasoning set out in Sierra Club, determined 
that Congress viewed conservation and survival as ``distinct, though 
complementary, goals and the requirement to preserve critical habitat 
is designed to promote both conservation and survival.'' Specifically, 
the court found that ``the purpose of establishing `critical habitat' 
is for the government to [designate habitat] that is not only necessary 
for the species' survival but also essential for the species' 
recovery.'' Gifford Pinchot Task Force, 378 F.3d at 1070.
    After the Ninth Circuit's decision, the Services each issued 
guidance to discontinue the use of the 1986 adverse modification 
regulation (FWS Acting Director Marshall Jones Memorandum to Regional 
Directors, ``Application of the `Destruction or Adverse Modification' 
Standard under Section 7(a)(2) of the Endangered Species Act 2004'' 
(FWS 2004); NMFS Assistant Administrator William T. Hogarth Memorandum 
to Regional Administrators, ``Application of the `Destruction or 
Adverse Modification' Standard under Section 7(a)(2) of the Endangered 
Species Act, 2005'' (NMFS 2005)). Specifically, in evaluating a 
proposed action's effects on critical habitat as part of interagency 
consultation, the Services began applying the definition of 
``conservation'' as set out in the Act, which defines conservation (and 
conserve and conserving) to mean ``to use and the use of all methods 
and procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this [Act] are no longer necessary.'' (16 U.S.C. 1532(3)) (i.e., the 
species is recovered). See 50 CFR 424.02. Accordingly, after examining 
the status of critical habitat, the environmental baseline, and the 
effects of the proposed action, the Services began analyzing whether 
the implementation of the proposed action, together with any cumulative 
effects, would result in the critical habitat remaining ``functional 
(or retain the current ability for the primary constituent elements to 
be functionally established) to serve the intended conservation role 
for the species.'' See FWS 2004; NMFS 2005.
    In 2016, we promulgated regulations to revise the regulatory 
definition of ``destruction or adverse modification.'' We adopted the 
following definition: ``Destruction or adverse modification means a 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for the conservation of a listed species. Such 
alterations may include, but are not limited to, those that alter the 
physical or biological features essential to the conservation of a 
species or that preclude or significantly delay development of such 
features.'' (81 FR 7214, February 11, 2016).
    We explained in the 2016 rule that we did not intend for it to 
alter the section 7(a)(2) consultation process from existing practice 
and noted that previously completed biological opinions did not need to 
be reevaluated in light of that rule. The 2016 definition, particularly 
the first sentence, sought to clarify and preserve the existing 
distinction between the definitions of ``destruction or adverse 
modification'' and ``jeopardize the continued existence of'' by 
focusing the analysis for ``destruction or adverse modification'' on 
how the effects of a proposed action affect the value of critical 
habitat as a whole for the conservation of threatened or endangered 
species. The focus of the ``jeopardize the continued existence of'' 
definition, on the other hand, is whether a proposed action appreciably 
reduces the likelihood of survival and recovery by reducing a species' 
reproduction, numbers, and distribution.
    The 2016 final rule's definition reflected several changes from 
what the Services proposed in 2014. The changes to the first sentence 
were relatively minor. In the 2014 proposed rule, the first sentence 
read: ```Destruction or adverse modification' means a direct or 
indirect alteration that appreciably diminishes the conservation value 
of critical habitat for listed species.'' (79 FR 27060, 27066; May 12, 
2014). In the final rule, we made a minor clarification of the first 
sentence, by changing ``conservation value of critical habitat for 
listed species'' to ``the value of critical habitat for the 
conservation of a listed species.'' (81 FR at 7226, February 11, 2016).
    Many commenters of the 2014 proposed rule expressed confusion or 
concern regarding the scale at which the determination of destruction 
or adverse modification of critical habitat is made. Some of these 
commenters thought that the language, ``critical habitat, as a whole,'' 
should be included in the definition and not just the preamble. While 
the Services declined to include the phrase ``as a whole'' in the 2016 
final definition, we explained in the preamble that we make our 
determination on the value of the critical habitat and its role in the 
conservation of the species, and that the existing consultation process 
already ensures that the determination is made at the appropriate 
scale. We also explained that, while an action may result in adverse 
effects to critical habitat within the action area, those effects may 
not necessarily rise to the level of destruction or adverse 
modification to the designated critical habitat. In adding the phrase 
``as a whole'' to the proposed revised definition, we intend to clearly 
indicate that the final destruction or adverse

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modification determination is made at the scale of the entire critical 
habitat designation. Smaller scales can be very important analysis 
tools in determining how the impacts may translate to the entire 
designated critical habitat, but the final determination is not made at 
the action area, critical habitat unit, or other less extensive scale.
    The analysis thus places an emphasis on the value of the designated 
critical habitat as a whole for the conservation of a species, in light 
of the role the action area serves with regard to the function of the 
overall designation. Just as the determination of jeopardy under 
section 7(a)(2) of the Act is made at the scale of the entire listed 
entity, a determination of destruction or adverse modification is made 
at the scale of the entire critical habitat designation. Even if a 
particular project would cause adverse effects to a portion of critical 
habitat, the Services must place those impacts in context of the 
designation to determine if the overall value of the critical habitat 
is likely to be reduced. This could occur where, for example, a smaller 
affected area of habitat is particularly important in its ability to 
support the conservation of a species (e.g., a primary breeding site). 
Thus, the size or proportion of the affected area is not determinative; 
impacts to a smaller area may in some cases result in a determination 
of destruction or adverse modification, while impacts to a large 
geographic area will not always result in such a finding. Therefore, we 
are proposing to revise the first sentence of the definition by adding 
the phrase ``as a whole'' to clarify the appropriate scale of the 
destruction or adverse modification determination.
    The second sentence proved more controversial. As proposed, the 
second sentence of the definition read: ``Such alterations may include, 
but are not limited to, effects that preclude or significantly delay 
the development of the physical or biological features that support the 
life-history needs of the species for recovery.'' (79 FR at 27066, May 
12, 2014). Many commenters argued that the proposed second sentence 
established a significant change in practice by appearing to focus the 
definition on the preclusion or delay of the development of physical or 
biological features, to the exclusion of the alteration of existing 
features. A number of commenters believed these concepts were vague, 
undefined, and allowed for arbitrary determinations. One commenter 
asserted that focusing on effects that preclude or significantly delay 
development of features was an expansion of authority that conflicted 
with E.O. 13604 (Improving Performance of Federal Permitting and Review 
of Infrastructure Projects).
    In an attempt to clarify our intent, in finalizing the rule, we 
revised the proposed second sentence to add reference to alterations 
affecting the physical or biological features essential to the 
conservation of a species, as well as those that preclude or 
significantly delay development of such features: ``Such alterations 
may include, but are not limited to, those that alter the physical or 
biological features essential to the conservation of a species or that 
preclude or significantly delay development of such features.'' (81 FR 
at 7226, February 11, 2016).
    The intended purpose of the language about precluding or delaying 
``development of such features'' was to acknowledge ``that some 
important physical or biological features may not be present or are 
present in a sub-optimal quantity or quality. This could occur where, 
for example, the habitat has been degraded by human activity or is part 
of an ecosystem adapted to a particular natural disturbance (e.g., fire 
or flooding), which does not constantly occur but is likely to recur.'' 
(79 FR at 27061, May 12, 2014). Our intent was for such determinations 
not to be based upon speculation.
    However, the second sentence of the definition in the 2016 final 
rule has continued to cause controversy among the public and many 
stakeholders.
    In this proposed rule, we seek to streamline and simplify the 
definition of ``destruction or adverse modification'' by removing the 
second sentence because the second sentence is unnecessary and has 
caused confusion. The second sentence of the definition attempted to 
elaborate upon meanings that are included within the first sentence, 
without attempting to exhaust them (hence, the use of the phrase ``may 
include, but are not limited to''). In all cases, the analysis of 
destruction or adverse modification must address whether the proposed 
action will result in an ``alteration that appreciably diminishes the 
value of critical habitat as a whole for the conservation of a listed 
species.''
Application of the Revised Definition
    As with the 2016 rule, we do not intend our proposed change to 
alter existing section 7(a)(2) consultation practice. The bar for 
whether a proposed action is likely to result in destruction or adverse 
modification of critical habitat is neither raised nor lowered by this 
proposed rule, nor is the scope of analysis altered with respect to 
evaluating the effects of a proposed action on critical habitat. This 
proposed definition retains the key, operative first sentence of the 
2016 regulation while adding the clarifying additional phrase of ``as a 
whole'' (as discussed above). Further guidance on how to apply the 
language in that sentence can be found in the 2016 rule.
    It is not necessary, nor possible, for a concise regulatory 
definition to list every way in which alterations may affect the value 
of critical habitat for the conservation of a species. The value of 
critical habitat for the conservation of a listed species is described 
primarily through the critical habitat designation itself. That 
designation, in accordance with the Act, will identify, in occupied 
habitat, ``the specific areas within the geographical area occupied by 
the species . . . on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection.'' 
(16 U.S.C. 1532(5)(a)(i)). Accordingly, the Act already makes clear 
that, in occupied habitat, the value of critical habitat for the 
conservation of the species is directly associated with designated 
physical or biological features. Thus, destruction or adverse 
modification determinations may be based on alterations that affect 
such features, without needing to specify that fact in the regulatory 
definition. The Act and regulations also already state that unoccupied 
areas may be designated to the extent the Service determines they are 
``essential for the conservation of the species.'' (16 U.S.C. 
1532(5)(a)(ii)). Determining whether alterations in unoccupied critical 
habitat may constitute destruction or adverse modification will 
therefore need to consider the reasons for which the Service determined 
that such unoccupied habitat is ``essential to the conservation of the 
species.''
    The Services have not changed their underlying view that it may be 
necessary and consistent with the Act in some circumstances for the 
destruction and adverse modification analysis to consider how 
alterations to critical habitat could affect the ability of the habitat 
to develop or support features essential to the conservation of the 
species. For example, in some circumstances, recovery of the species 
may depend upon retaining the ability of a designated area to maintain 
or re-create the essential features, for instance through ecological 
succession, fluvial processes, active management, or other dynamic 
processes. This is a longstanding interpretation and agency practice, 
as reflected in the 2016 rule and in the 2004 and 2005 FWS and NMFS 
guidance documents regarding

[[Page 35182]]

application of the destruction or adverse modification standard. This 
longstanding interpretation has never been meant to assert authority 
beyond that provided by the Act, nor to allow the Services to designate 
critical habitat or make adverse modification findings based merely on 
speculation or desire about future changes to the critical habitat. As 
required by the Act, such determinations must rely on the best 
scientific and commercial data available. (16 U.S.C. 1536(a)(2)).
    In the proposed definition, ``appreciably diminish'' remains a key 
concept. This phrase has been part of the regulatory definition of 
``destruction or adverse modification'' since 1978, and neither it nor 
its interpretation would be altered by this proposed rule. As we noted 
in the 2016 rule, with respect to ``diminish,'' the inquiry begins with 
whether the relevant effects will reduce, lessen, or weaken the value 
of the critical habitat for the conservation of the species. If so, 
then the inquiry is whether that reduction or diminishment will be 
``appreciable'' to the value of the critical habitat for the 
conservation of the species.
    As we also noted in 2016, the determination of ``appreciably 
diminish'' is made based upon the proposed action's effect on the value 
of the entire critical habitat to the conservation of the species. That 
is, the question is whether the ``effects of the action'' will 
appreciably diminish the value of the critical habitat as a whole to 
the conservation of the species, not just in the area where the 
proposed action takes place. In this respect, ``appreciably diminish'' 
is analogous to ``appreciably reduce'' in the context of determining 
whether an action will ``jeopardize the continued existence'' of a 
species, since that inquiry is similarly not merely addressing the 
effects within the action area, but rather is concerned with whether 
the effects ``appreciably reduce'' the likelihood of survival and 
recovery of the listed entity, the species.
    The 2016 rule discussed the reasons we concluded, and here continue 
to conclude, that the phrase ``appreciably diminish'' does not need to 
be modified. As we noted in 2016, the Services' joint Consultation 
Handbook (FWS and NMFS, March 1998) uses the word ``considerably'' to 
interpret this phrase. In the 2016 rule, we clarified that the phrase 
``appreciably diminish,'' like the Consultation Handbook's term 
``considerably,'' means `` `worthy of consideration' and is another way 
of stating that we can recognize or grasp the quality, significance, 
magnitude, or worth of the reduction in the value of critical 
habitat.'' (81 FR 7218, February 11, 2016).
    We also explained in 2016 that it is not correct to conclude that 
every diminishment, however small, should constitute destruction or 
adverse modification. It was necessary to qualify the word ``diminish'' 
to exclude those adverse effects on critical habitat that are so minor 
in nature that they do not appreciably impact the value of designated 
critical habitat to the conservation of a listed species.
    We also note that the word ``appreciably'' is used in both the 
Services' definition of ``jeopardize the continued existence of'' 
(``appreciably reduce'') and ``destruction or adverse modification'' 
(``appreciably diminish''). The meaning of the word ``appreciably'' is 
similar in either context. In both contexts, it is appropriate for the 
Services to consider the biological significance of effects when 
conducting a section 7(a)(2) consultation. As required by the ESA, we 
conduct formal consultation, and evaluate in detail the potential for 
destruction or adverse modification of critical habitat (and/or whether 
a proposed action is likely to jeopardize the continued existence of a 
species) whenever there are likely to be adverse effects to critical 
habitat or a listed species. In each of these analyses, we must 
evaluate, based on the totality of the circumstances and the best 
available scientific information, the nature and magnitude of the 
proposed action's effects, to determine whether such effects of the 
proposed action are consequential enough to rise to the level of 
``appreciably diminish'' or ``appreciably reduce.'' See, e.g., Oceana, 
Inc. v. Pritzker, 75 F. Supp. 3d 469, 483 (D.D.C. 2014) (discussing and 
affirming a jeopardy analysis that considered whether a given reduction 
was ``meaningful from a biological perspective''). Reductions in the 
reproduction, numbers, or distribution of a species that are 
inconsequential at the species level, or alterations to the features or 
the extent of designated critical habitat that constitute only an 
inconsequential impact on the conservation value of designated critical 
habitat as a whole, would not be considered to rise to the level of 
``reduce appreciably'' or ``appreciably diminish'' within the meaning 
of the regulations. Nor do we interpret section 7(a)(2) and the 
regulations thereunder to require that each proposed action improve or 
increase the likelihood of survival and recovery of the species, or 
improve the conservation value of critical habitat. Section 7(a)(2) 
focuses on the ``continued existence'' of the species and the 
``adverse'' modification of critical habitat.
    It should also be noted that the analysis must always consider 
whether such impacts are ``appreciable,'' even where a species already 
faces severe threats prior to the action. It is sometimes mistakenly 
asserted that a species may already be in a status of being ``in 
jeopardy,'' ``in peril,'' or ``jeopardized'' by baseline conditions, 
such that any additional adverse impacts must be found to meet the 
regulatory standards for ``jeopardize the continued existence of'' or 
``destruction or adverse modification.'' See, e.g., Nat'l Wildlife 
Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir. 
2008) (asserting that ``where baseline conditions already jeopardize a 
species, an agency may not take action that deepens the jeopardy by 
causing additional harm''); Turtle Island Restoration Network v. United 
States Dep't of Commerce, 878 F.3d 725, 735 (9th Cir. 2017) (``Where a 
species is already in peril, an agency may not take an action that will 
cause an `active change of status' for the worse.'') (quoting Nat'l 
Wildlife Fed'n, 524 F.3d at 930). That approach is inconsistent with 
the statute and our regulations.
    The terms ``jeopardize the continued existence of'' and 
``destruction or adverse modification'' are, in the plain language of 
section 7(a)(2), determinations that are made about the effects of 
Federal agency actions. They are not determinations made about the 
environmental baseline or about the pre-action condition of the 
species. Under the ESA, a listed species will have the status of 
``threatened'' or ``endangered,'' and all threatened and endangered 
species by definition face threats to their continued existence. See 16 
U.S.C. Sec. Sec.  1532(6), (20), 1533(a). But the ESA and our 
regulations do not use the terms ``in jeopardy,'' ``in peril,'' or 
``jeopardized'' to describe the environmental baseline or the pre-
action condition of a species; nor do the terms ``appreciably reduce'' 
or ``appreciably diminish'' have a different meaning where a species 
already faces very serious threats. In each biological opinion, the 
determination regarding destruction or adverse modification is made by 
evaluating the effects of the proposed action on the species in light 
of the overall status of the species, the baseline conditions within 
the action area and any cumulative effects occurring within the action 
area. While we acknowledge that for a species with a particularly dire 
status, a smaller impact could cause an alteration that appreciably 
diminishes the conservation value of critical habitat or appreciably

[[Page 35183]]

reduces the likelihood of survival and recovery of the species, there 
is no ``baseline jeopardy'' status even for the most imperiled species.
    A related question that has arisen is whether the Services are 
required to identify a ``tipping point'' beyond which the species 
cannot recover in making section 7(a)(2) determinations. For example, 
the Ninth Circuit Court of Appeals has said that ``when a proposed 
action will have significant negative effects on the species' 
population or habitat, the duty to consider the recovery of the species 
necessarily includes the calculation of the species' approximate 
tipping point.'' Oceana, Inc. v. Nat'l Marine Fisheries Serv., 705 F. 
App'x 577, 580 (9th Cir. 2017) (citing Nat'l Wildlife Fed'n v. Nat'l 
Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008)); see also Wild 
Fish Conservancy v. Salazar, 628 F.3d 513, 527 (9th Cir. 2010) 
(overturning jeopardy analysis based on purported NMFS failure to 
determine ``when the tipping point precluding recovery . . . is likely 
to be reached''). Neither the Act nor our regulations state any 
requirement for the Services to identify a ``tipping point'' as a 
necessary prerequisite for making section 7(a)(2) determinations. 
Section 7(a)(2) provides the Services with discretion as to how it will 
determine whether the statutory prohibition is exceeded. We have not 
interpreted that statutory language as requiring the identification of 
a tipping point. This interpretation is further supported by the fact 
that the state of science often does not allow the Services to identify 
a ``tipping point'' for many species. The Services have had success in 
the recovery of several listed species which, despite very low 
abundance, did not reach a ``tipping point.''
Definition of Director
    We propose to amend the current definition of ``Director'' to 
clarify and simplify it, in accordance with the Act and agency practice 
of FWS and NMFS.
Definition of Effects of the Action
    We propose to revise the definition of ``effects of the action'' in 
a manner that simplifies the definition. Confusion regarding 
application of terms has resulted in time being spent determining how 
to categorize an effect, rather than simply determining what the 
effects are regardless of category. By providing a simpler definition 
that applies to the entire range of potential effects, Federal agencies 
and the Services will be able to focus on better assessing the effects 
of the proposed action. In addition, we propose to make the definition 
of environmental baseline a stand-alone definition within Sec.  402.02. 
Previously, this definition was articulated within the definition of 
effects of the proposed action. Finally, we have moved the instruction 
that the effects of the proposed action shall be added to the 
environmental baseline into the regulations guiding the Services' 
responsibilities in formal consultation in Sec.  402.14(g).
    A few aspects of the revised definition of effects of the action 
bear further discussion to understand our intent in the proposed 
revision. We collapsed the various concepts of direct and indirect 
effects, and the effects of interrelated and interdependent actions, 
into the new definition that the effects of the action include all 
effects caused by the proposed action. The revised definition notes 
that these effects include ``the effects of other activities that are 
caused by the proposed action.'' It includes a distinction between the 
word ``action'' which refers to the action proposed to be authorized, 
funded, or carried out, in whole or in part, by the Federal agency and 
brought in for consultation with the Services, and ``activity'' or 
``activities,'' which refer to those activities that are caused by the 
proposed action but are not included in the proposed action. Under the 
current definition, these activities would have been considered under 
either ``indirect effects'' or ``interrelated'' or ``interdependent'' 
activities. An effect or activity is caused by the proposed action when 
two tests are satisfied: First, the effect or activity would not occur 
but for the proposed action, and second, the effect or activity is 
reasonably certain to occur.
    Under the first of these two tests, if an effect or activity would 
occur regardless of whether the proposed action goes forward, then that 
effect or activity would not satisfy the ``but for'' test and would not 
be considered an effect of the action. The concepts of interrelated and 
interdependent actions in the existing regulations are now captured by 
the concept of effects of activities that are caused by the proposed 
action, but are not part of that proposed action. It has long been our 
practice that identification of direct and indirect effects as well as 
interrelated and interdependent activities is governed by the ``but 
for'' standard of causation. Our Consultation Handbook states . . .''In 
determining whether the proposed action is reasonably likely to be the 
direct or indirect cause of incidental take, the Services use the 
simple causation principle: i.e., ``but for'' the implementation of the 
proposed action. . . .'' (Consultation Handbook, page 4-47). A number 
of courts have also adopted that position. Sierra Club v. Bureau of 
Land Management, 786 F.3d 1219, 1225 (9th Cir. 2015) (``The test for 
interrelatedness or interdependentness is `but for' causation'') citing 
Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987). This 
standard, while applicable to analyzing the effects of the action under 
section 7(a)(2), is not necessarily appropriate for other provisions of 
the ESA; we therefore do not address in this rulemaking the causation 
standards applying to other provisions of the Act, such as whether a 
violation of section 9(a)(1)(B) (the take prohibition) has resulted for 
purposes of a civil penalty or a criminal violation under the Act.
    The second of the two tests speaks to the certainty of whether the 
effect or activity will occur. The concept of reasonable certainty 
already exists in our section 7 regulations and currently is explicitly 
applied in the context of indirect effects, cumulative effects, and 
incidental take. We propose to increase consistency and avoid confusion 
and speculation by explicitly applying the concept to all effects of 
the proposed action (not just indirect) and also to those other 
activities previously identified as interrelated and interdependent. 
This concept applies equally to evaluating the beneficial effects of a 
proposed action (e.g., effects of any components proposed by the 
Federal agency to avoid, minimize, or offset the effects of the agency 
action, for example) and adverse effects of the proposed action. Our 
proposed revision applies the reasonably-certain-to-occur standard to 
the section 7 process in a consistent manner but does not change past 
practice on the evaluation of direct and indirect effects of actions. 
In practice, the Services have evaluated the direct effects of the 
action using the best available scientific and commercial information 
about the likelihood of an effect or activity and not on speculation 
about what effects might occur. As a result, we do not anticipate the 
revised language will change what types of effects or activities will 
be considered within our consultations; rather, we expect it to 
simplify and improve consistency in our effects analyses. For example, 
our prior discussion in our 2015 rulemaking adopting revisions to the 
incidental take statement portions of our section 7 regulations is 
instructive in this regard:

    As a practical matter, application of the ``reasonable 
certainty'' standard is done in the following sequential manner in 
light of the best available scientific and commercial data to 
determine if incidental take is anticipated: (1) A determination is 
made regarding whether a listed species is present within the area 
affected by the proposed

[[Page 35184]]

Federal action; (2) if so, then a determination is made regarding 
whether the listed species would be exposed to stressors caused by 
the proposed action (e.g., noise, light, ground disturbance); and 
(3) if so, a determination is made regarding whether the listed 
species' biological response to that exposure corresponds to the 
statutory and regulatory definitions of take (i.e., kill, wound, 
capture, harm, etc.). Applied in this way, the ``reasonable 
certainty'' standard does not require a guarantee that a take will 
result, rather, only that the Services establish a rational basis 
for a finding of take. While relying on the best available 
scientific and commercial data, the Services will necessarily apply 
their professional judgment in reaching these determinations and 
resolving uncertainties or information gaps. Application of the 
Services' judgment in this manner is consistent with the 
``reasonable certainty'' standard. (80 FR 26832, 26837; May 15, 
2015).

    The preamble to the 1986 regulation implementing section 7 also 
discusses the Services' interpretation of the phrase ``reasonably 
certain to occur.'' (51 FR 19926, 19932-19933; June 3, 1986--``For 
State and private actions to be considered in the cumulative effects 
analysis, there must exist more than a mere possibility that the action 
may proceed. On the other hand, ``reasonably certain to occur'' does 
not mean that there is a guarantee that an action will occur.'')
    It is important to note that both prongs of the causation standard 
must be met for the activity in question and the effects from that 
activity. So, for example, if an activity is not reasonably certain to 
occur, then the causation standard has not been met and neither the 
activity nor any effects from that activity are considered an effect of 
the proposed action.
    In addition, for activities that are caused by the proposed action, 
we have established at Sec.  402.17 a standard and set of factors to 
consider in determining whether activities are reasonably certain to 
occur. We believe that the combination of requiring that an effect be 
both ``but for'' and ``reasonably certain to occur'' will reasonably 
define the reach of the effects analysis and address concerns about 
extending the analysis into an unreasonably wide arena. Finally, the 
proposed provision includes a reminder that the effects of the action 
may occur throughout the action area and on an ongoing, or even 
delayed, timeframe after completion of the action that was the subject 
of consultation. Thus, under the proposed rule, there would no longer 
be a need for a separate definition of ``indirect effects,'' since the 
intent of the new definition is that the effects covered by that term 
are still included. And similarly, the new definition should not, in 
practice, change the determination or scope of the ``action area'' in a 
consultation.
    As stated previously, the Services' intent is to simplify and 
clarify the definition of effects of the action, without altering the 
scope of what constitutes an effect. We seek comment on (1) the extent 
to which the proposed revised definition simplifies and clarifies the 
definition of ``effects of the action''; (2) whether the proposed 
definition alters the scope of effects considered by the Services; (3) 
the extent to which the scope of the proposed revised definition is 
appropriate for the purposes of the Act; and (4) how the proposed 
revised definition may be improved.
Definition of Environmental Baseline
    We are proposing a stand-alone definition for ``environmental 
baseline'' as referenced in the discussion above in the proposed 
revised definition for ``effects of the action.'' The definition for 
environmental baseline retains its current wording. Moving it to a 
stand-alone definition clarifies that the environmental baseline is a 
separate consideration that sets the stage for analyzing the effects of 
the proposed action on the listed species and critical habitat within 
the action area by providing the foundation upon which to build the 
analysis of the effects of the action under consultation. The 
environmental baseline does not include the effects of the action under 
review in the consultation (See Consultation Handbook, at 4-22).
    The Services are seeking public comment on potential revisions to 
the definition of ``environmental baseline'' as it relates to ongoing 
Federal actions. It has sometimes been challenging for the Services and 
Federal agencies to determine the appropriate baseline for those 
consultations involving ongoing agency actions. The complexities 
presented in these consultations include issues such as: What 
constitutes an ``ongoing'' action; if an ongoing action is changed, is 
the incremental change in the ongoing action the only focus of the 
consultation or is the entire action or some other subset reviewed; is 
the effects analysis different if the ongoing action has never been the 
subject of consultation as compared to if there is a current biological 
opinion for the ongoing action; if a change is made to an ongoing 
action that lessens, but does not eliminate, the harmful impact to 
listed species or critical habitat, is that by definition a 
``beneficial action''; and can a ``beneficial action'' ever jeopardize 
listed species or destroy or adversely modify critical habitat. 
Further, the Services request comments as to whether the following 
language would address these issues: ``Environmental baseline is the 
state of the world absent the action under review and includes the 
past, present and ongoing impacts of all past and ongoing 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 in the action 
area which are contemporaneous with the consultation in process. 
Ongoing means impacts or actions that would continue in the absence of 
the action under review.''
    As indicated above, we propose to move the instruction that the 
effects of the action shall be added to the environmental baseline from 
the definition of ``effects of the action'' into Sec.  402.14(g) to 
retain this important step of the analytical process.
Definition of Programmatic Consultation
    We propose to add a definition of ``programmatic consultation.'' 
This term is included in revised Sec.  402.14(c)(4) to codify an 
optional consultation technique that is being used with increasing 
frequency and to promote the use of programmatic consultations as 
effective tools that can improve both process efficiency and 
conservation in consultations. Programmatic consultations can be 
completed under informal and formal consultation processes. They can be 
used to evaluate the effects of multiple actions anticipated within a 
particular geographic area; or to evaluate Federal agency programs that 
guide implementation of the agency's future actions by establishing 
standards, guidelines, or governing criteria to which future actions 
will adhere. By consulting on the program, plan, policy, regulation, 
series, or suites of activities as a whole, the Services can reduce the 
number of single, project-by-project consultations, streamline the 
consultation process, and increase predictability and consistency for 
action agencies. In addition, by looking across numerous individual 
actions at the programmatic level, the Federal action agencies and 
applicants can propose project design criteria, best management 
practices, standard operating procedures, and/or standards and 
guidelines that avoid, minimize, or offset the action's effects on 
listed species and/or designated critical habitat. Federal agencies and 
applicants often propose measures to avoid, minimize, and/or offset 
effects to listed

[[Page 35185]]

species and/or designated critical habitat as part of their proposed 
action when they consult with the Services. The Services consider these 
measures as part of the proposed action when they evaluate the effects 
of the proposed action.
Types of Programmatic Consultations
    1. Programmatic consultations that address multiple similar, 
frequently occurring, or routine actions expected to be implemented in 
particular geographic areas. These are generally categories of actions 
for which there is a good understanding of the likely effects on 
resources listed under the Act, although the categories encompass 
future site-specific actions of which the precise details are not yet 
known. Many, but not all, of these types of programmatic consultations 
have been referred to as ``batched'' consultations in the past. They do 
not rely on, or specifically incorporate by reference, consultations on 
a higher level of Federal action or plan. Examples of these types of 
programmatic consultations would be consultations that involve a 
variety of routine activities such as a regional road maintenance 
program by State departments of transportation, or a U.S. Army Corps of 
Engineers general permitting program at the regional level that covers 
routine construction activities for in-and-over-water structures.
    2. Programmatic consultations that address a proposed program, 
plan, policy, or regulation providing a framework for future actions. 
These programmatic consultations cover programs, plans, governing 
policies, and/or regulations such as a national or regional program, 
plan, policy, or regulation, where the Federal agency is generally not 
able to provide detailed specificity about the number, location, 
timing, frequency, precise methods and intensity of the activities 
expected to be implemented, or to determine the site-specific adverse 
effects the activities will have on listed species or critical habitat. 
In these cases, the Service conducts a more generalized review of 
effects and provides the appropriate section 7(a)(2) determination in a 
letter of concurrence or biological opinion for the programmatic 
consultation. In the future, when the site-specific information is 
known, and it is determined the project ``may affect'' a listed species 
or critical habitat, typically a subsequent consultation is completed. 
That subsequent consultation may, not exclusively, be referred to as a 
``step-down'' or ``tiered consultation.'' The subsequent consultation 
commonly incorporates by reference portions of the previous 
consultation on the program, plan, policy, or regulations. A typical 
example of this type of programmatic action is a land management plan. 
A land management agency may have a program addressing issuance of a 
special use permit for various activities. The program, as a part of 
land management planning, has certain standards and guidelines to which 
each subsequent program action must adhere. A consultation on the 
program would examine generally what types of effects would be caused 
by the program and whether those effects were consistent with section 
7(a)(2) of the Act. In the future, as issuance of specific permits are 
anticipated, the Federal agency will return to the Service later for 
consultation, and an additional consultation would take place on the 
site-specific facts of that permit issuance. However, the subsequent or 
``step-down'' or ``tiered'' consultation would benefit from the initial 
program-level consultation, thus streamlining and reducing the amount 
of analysis needed for each site-specific consultation.
    The Services recently promulgated changes to the section 7(a)(2) 
implementing regulations that define framework and mixed programmatic 
actions that address certain types of policies, plans, regulations, and 
programs (80 FR 26832, May 11, 2015). The types of programmatic 
consultations described above align with the suite of activities 
described in the 2015 rule.
    The Services encourage Federal agencies to coordinate with us in 
order to determine what programmatic approach would be applicable and 
streamline the consultation process for their program or suite of 
actions.

Section 402.03--Applicability

    In order to increase efficiency in implementing section 7(a)(2) 
consultations and capitalize upon the considerable experience the 
Services have gained in implementing the Act, the Services seek comment 
on the advisability of clarifying the circumstances upon which Federal 
agencies are not required to consult. More specifically, the Services 
seek comment regarding revising Sec.  402.03 to preclude the need to 
consult when the Federal agency does not anticipate take and the 
proposed action will: (1) Not affect listed species or critical 
habitat; or (2) have effects that are manifested through global 
processes and (i) cannot be reliably predicted or measured at the scale 
of a listed species' current range, or (ii) would result at most in an 
extremely small and insignificant impact on a listed species or 
critical habitat, or (iii) are such that the potential risk of harm to 
a listed species or critical habitat is remote, or (3) result in 
effects to listed species or critical habitat that are either wholly 
beneficial or are not capable of being measured or detected in a manner 
that permits meaningful evaluation. The Services have learned through 
time that such actions are far removed from any potential for jeopardy 
or destruction or adverse modification of critical habitat, and that 
consultation on these actions does little to accomplish the intent of 
section 7(a)(2) of the Act--to ensure that any action authorized, 
funded, or carried out by a Federal agency is not likely to jeopardize 
the continued existence of listed species or result in the destruction 
or adverse modification of critical habitat.
    In prior consultations under section 7(a)(2), agencies with 
regulatory authority have consulted on actions that include effects to 
listed species or designated critical habitat that occur outside of the 
specific area over which they have regulatory jurisdiction. We also 
seek comment on whether the scope of a consultation under section 
7(a)(2) should be limited to only the activities, areas, and effects 
within the jurisdictional control and responsibility of the regulatory 
agency.

Section 402.13--Deadline for Informal Consultation

    Informal consultation is an optional process that includes all 
discussions, correspondence, etc., between the Service and the Federal 
agency to assist the Federal agency in determining whether formal 
consultation or a conference is required. 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. Finally, the 
Services may issue a written concurrence with a Federal agency's 
determination that the action is not likely to adversely affect the 
listed species or critical habitat.
    There is currently no deadline for the Services to complete an 
informal consultation, unlike formal consultations, which by regulation 
should be completed within 90 days unless extended under the terms at 
Sec.  402.14(e). The Service's goal is to either complete the Letter of 
Concurrence for the project, or request additional information that is 
necessary to complete the consultation, within 30 days. NMFS completes 
approximately

[[Page 35186]]

1,200-1,500 individual informal consultations per year. Of the informal 
actions not under a programmatic Biological Opinion, 36 percent are 
within their 30-day goal, and 61 percent are within 3 months. NMFS 
currently has about 46 individual informal consultations that have been 
open for greater than 200 days as of July 31, 2017, that the agency is 
actively working to complete as soon as possible. Between fiscal years 
2011 and 2017, FWS completed an average of 11,344 (ranging from 9,656 
to 12,793) informal consultations per year. During those years, FWS 
completed between 78 percent and 85 percent of the informal 
consultations in less than 30 days, averaging between 26 and 39 days to 
complete informal consultation.
    The Services are considering whether to add a 60-day deadline, 
subject to extension by mutual consent, for informal consultations. We 
seek comment on (1) whether a deadline would be helpful in improving 
the timeliness of review; (2) the appropriate length for a deadline (if 
not 60 days); and (3) how to appropriately implement a deadline (e.g., 
which portions of informal consultation the deadline should apply to 
[e.g., technical assistance, response to requests for concurrence, 
etc.], when informal consultation begins, and the ability to extend or 
``pause the clock'' in certain circumstances, etc.).

Section 402.14--Formal Consultation

    Consistent with the Services' existing practice, we propose to 
revise Sec.  402.14(c) to clarify what is necessary to initiate formal 
consultation. Decades of experience have demonstrated valuable time is 
lost due to lack of clarity in what information the Services need to 
initiate consultation. This often results in an ongoing exchange of 
documents (e.g., biological assessments, biological evaluations, 
National Environmental Policy Act (NEPA) documents) in which the 
Federal agencies and Services seek to compile the necessary 
information, which results in significant inefficiencies and 
frustrations on the part of both the Federal agencies and the Services. 
The proposed revision is intended to eliminate the confusion and 
misunderstanding existing in the current regulations and significantly 
increase the efficiency of the process for both the Federal agencies 
and the Services. It is important to note the Services are not 
proposing to require more information than existing practice; instead, 
we are proposing to clarify in the regulations what is needed to 
initiate consultation in order to improve the consultation process.
    The proposed revisions to Sec.  402.14(c) would further describe 
the information from the Federal agency necessary to initiate 
consultation. This set of information is commonly called the 
``initiation package,'' and that term is also used in our proposed 
regulations for alternative formal consultation procedures to refer to 
the information required in Sec.  402.14(c). Consistent with Sec.  
402.06 (Coordination with other environmental reviews), we also propose 
at Sec.  402.14(c) to allow the Services to consider other documents as 
initiation packages, such as: a document prepared for the sole purpose 
of providing the Service with information relevant to an agency's 
consultation, a document that has been prepared under NEPA or other 
authority that contains the necessary information to initiate 
consultation, or other such documents (e.g., grant application, State 
of Washington Joint Aquatic Resources Permit Application, California 
Environmental Quality Act Environmental Impact Report, etc.) that meet 
the requirements for initiating consultation.
    When such documents consider two or more alternative actions, the 
request for consultation must describe the specific alternative or 
action proposed for consultation and the specific locations in the 
document where the relevant information is found. The Services evaluate 
only the Federal agency's proposed alternative during the consultation 
process. If the Federal agency either adopts another alternative as its 
final agency action, or substantively modifies the proposed 
alternative, reinitiation of consultation may be required.
    The proposed regulations describe categories of information that 
should be in an initiation package to initiate formal consultation. 
Information must be provided in a sufficient level of detail consistent 
with the nature and scope of the proposed action. Consistent with the 
Service's existing practice, the requirement to include sufficient 
detail ensures the Service has enough information to understand the 
action as proposed and conduct an informed analysis of the effects of 
the action, including with regard to those measures intended to avoid, 
minimize, or offset effects. See Consultation Handbook, at B-54 
(Description of the proposed action should be ``detailed enough so that 
the reviewer can fully understand what the components of the action 
include and how the project will affect the species.'') Such 
information should include a description of the proposed action, 
including any measures intended to avoid, minimize, or offset the 
effects of the proposed action, a description of the area affected (the 
action area), information about species or critical habitat in the 
action area, a description of potential effects of the proposed action 
on individuals of any listed species or critical habitat, a description 
of the cumulative effects, a summary of information from the applicant, 
if any, and any other relevant information.
Service Responsibilities
    We propose to revise portions of Sec.  402.14(g) that describe the 
Services' responsibilities during formal consultation. We propose to 
clarify the analytical steps the Services undertake in formulating a 
biological opinion. These changes are intended to better reflect the 
Services' approach to analyzing jeopardy and adverse modification as 
well as address revisions to the definition of ``effects of the 
action.'' In summary, these analytical steps are: (1) Review all 
relevant information, (2) evaluate current status of the species and 
critical habitat and environmental baseline, (3) evaluate effects of 
the proposed action and cumulative effects, (4) add effects of the 
action and cumulative effects to the environmental baseline, and, in 
light of the status of the species and critical habitat, determine if 
the proposed action is likely to jeopardize listed species or result in 
the destruction or adverse modification of critical habitat. While we 
identify distinct steps in our analytical approach, each step is 
related to the others and necessarily informs and influences our 
analysis. For example, the condition of the environmental baseline is 
relevant to the nature and extent of the effects of the action. Effects 
of the action that in isolation would be of minor consequence may be 
amplified and of greater consequence when analyzed in light of the 
condition of the environmental baseline.
    In Sec.  402.14(g)(2), we propose to move from the current 
definition of ``effects of the action'' the instruction that the 
effects of the action shall be added to the environmental baseline to 
where this provision more logically fits with the rest of the 
analytical process, and we retain this important step of that process. 
In Sec.  402.14(g)(4), we propose revisions to better reflect the 
manner in which the Services integrate and synthesize their analyses of 
effects of the action with cumulative effects, the environmental 
baseline, and status of the species and critical habitat to reach our 
jeopardy and adverse modification

[[Page 35187]]

determinations. Again, this proposed change reflects the Service's 
existing approach. See Consultation Handbook, at 4-33 (``The conclusion 
section presents the Services' opinion regarding whether the aggregate 
effects of the factors analyzed under ``environmental baseline,'' 
``effects of the action,'' and ``cumulative effects'' in the action 
area--when viewed against the status of the species or critical habitat 
as listed or designated--are likely to jeopardize the continued 
existence of the species or result in destruction or adverse 
modification of critical habitat.'')
    We propose clarifications to Sec.  402.14(g)(8) regarding whether 
and how the Service should consider measures included in a proposed 
action that are intended to avoid, minimize, or offset adverse effects 
to listed species or critical habitat. Federal agencies often include 
these types of measures as part of the proposed action. However, the 
Service's reliance on a Federal agency's commitment that the measures 
will actually occur as proposed has been repeatedly questioned in 
court. The resulting judicial decisions have created confusion 
regarding what level of certainty is required to demonstrate that a 
measure will in fact be implemented before the Service can consider it 
in a biological opinion. In particular, the Ninth Circuit has held that 
even an expressed sincere commitment by a Federal agency or applicant 
to implement future improvements to benefit a species must be rejected 
absent ``specific and binding plans'' with ``a clear, definite 
commitment of resources for future improvements.'' Nat'l Wildlife Fed'n 
v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 935-36 (9th Cir. 2008).
    This judicially created standard is not required by the Act or the 
existing regulations. The Act requires Federal agencies to consult with 
the Services, as appropriate, on ``any action authorized, funded or 
carried out by such agency.'' When a Federal agency proposes to take an 
action that it has the discretion and authority to implement, and where 
that proposed action or parts thereof ``may affect'' a listed species 
or its critical habitat, the section 7(a)(2) consultation process is 
triggered. Where these conditions are met, the Service's role is to 
assume that the action will be implemented as proposed and proceed to 
analyze the effects of that proposed action on listed species and 
critical habitat. Just as with the components of a proposed action with 
adverse effects, there is no additional or heightened standard or 
threshold requirement necessitating the Service to independently 
evaluate whether the proposed measures to avoid, minimize, or offset 
adverse effects will be implemented.
    In some situations, a Federal agency may propose a suite or program 
of measures that will be implemented over time. The future components 
of the proposed action often have some uncertainty with regard to the 
specific details of projects that will be implemented. Nevertheless, a 
Federal agency or applicant may be fully capable of committing to 
specific levels and types of actions (e.g., habitat restoration) and 
specific populations or species that will be the focus of the effort. 
If the Federal agency provides information in sufficient detail for the 
Services to meaningfully evaluate the effects of measures proposed to 
avoid, minimize, or offset adverse effects, the Services must consider 
the proposed measures during a consultation, as the Act requires the 
Services to issue their expert opinion on ``how the agency action 
affects the species or its critical habitat,'' 16 U.S.C. 1536(b)(3)(A), 
and thus, are entitled to rely on that information as proposed. 
Therefore, we are proposing revisions to Sec.  402.14(c)(1) with 
respect to the information a Federal agency must submit to initiate 
formal consultation. Under this proposed rule and consistent with the 
Service's existing approach, a Federal agency must submit a description 
of the proposed action, including available information about any 
measures intended to avoid, minimize, or offset effects of the proposed 
action. As discussed above, the requirement for sufficient detail 
regarding all aspects of the proposed action ensures the Services have 
the information needed to conduct an informed analysis of the effects 
of all activities included in the proposed action. Provided the Federal 
agency submits the information required by Sec.  402.14(c), the 
Services will take into consideration the effects of the action as 
proposed, both beneficial and adverse.
    By describing what is included in the proposed action, the Federal 
agency has made a commitment and retains independent obligations to 
insure that its action is not likely to jeopardize listed species or 
destroy or adversely modify critical habitat. Should new information 
arise or our assumptions set forth in the consultation change during 
implementation--for instance, where the action or elements thereof are 
not implemented as proposed--the Federal agency must continue to ensure 
compliance with the Act and has several options to do so. This may 
include reinitiating consultation with the Service(s) to evaluate the 
changed circumstances. If an incidental take statement includes 
reasonable and prudent measures and terms and conditions intended to 
minimize the impact of incidental take, the Federal agency must carry 
out those measures or risk losing the exemption afforded by the 
incidental take statement. Ultimately, as consulting and action 
agencies, the Act's statutory and regulatory provisions provide 
distinct responsibilities such that there is no requirement for the 
Service to independently evaluate whether the Federal agency is likely 
to carry out its commitments. This is the Services' longstanding 
position, as reflected in other provisions of the regulations (for 
instance, those governing development of Reasonable and Prudent 
Alternatives), and is consistent with the Act. Therefore, we propose 
revisions to Sec.  402.14(g)(8) to clarify there is no requirement for 
measures that avoid, minimize, or offset the adverse effects of an 
action that are included in the proposed action to be accompanied by 
``specific and binding plans,'' ``a clear, definite commitment of 
resources'', or meet other such criteria.
Biological Opinions
    We propose to add new paragraphs (h)(3) and (h)(4) to the current 
Sec.  402.14(h) to allow the Services to adopt all or part of a Federal 
agency's initiation package in its biological opinion. Additionally, we 
propose to allow the Services to adopt all or part of their own 
analyses and findings that are required to issue a permit under section 
10(a) of the Act in its biological opinion.
    The Services have more than 30 years of experience in conducting 
consultation pursuant to section 7(a)(2) of the Act under the existing 
regulations. Based upon that experience, we have determined that the 
current regulations would be more efficient and clear if we were to 
codify or create additional optional procedures within formal 
consultation (Service adoption of all or part of a Federal agency's 
initiation package and expedited consultations) and streamline 
duplicative processes (consultation on permits issued under section 10 
of the Act). We recognize that several factors, including the scope and 
complexity of the proposed action, the magnitude and extent of the 
effects that flow from the proposed action, and the expertise of 
various Federal agencies, all warrant more than the two general types 
of consultation provided for in the current regulations. In addition, 
the experience of recent decades has led to significant improvements in 
consultation efficiency and species conservation as a result of

[[Page 35188]]

the effective use of streamlined or programmatic approaches. We believe 
that these alternative consultation procedures will promote flexibility 
and efficiency for the action agencies, applicants, and the Services, 
and can be implemented in compliance with the Act while not 
compromising the conservation of listed species.
    We propose that the Service may adopt all or part of a Federal 
agency's initiation package or the Services' analyses and findings that 
are required to issue a permit under section 10(a) of the Act in its 
biological opinion. This provision would allow the Services to utilize 
portions of these documents in the development of our biological 
opinion to improve efficiency in the consultation process and reduce 
duplicative efforts. Adoption or incorporation by reference is 
typically done during consultations, and this provision codifies that 
approach.
    Further, the provision explicitly applies this approach to the 
Service's issuance of permits under section 10 of the Act. The review 
and analyses undertaken to develop a finding that various criteria have 
been met for issuing a permit pursuant to section 10(a)(1)(A) or 
10(a)(1)(B) contain many of the elements reviewed and analyzed in a 
section 7 consultation. Therefore, we propose to adopt the analyses and 
review that supports issuance of these permits as part of the 
biological opinion required to meet the applicable provisions of the 
part 402 consultation regulations. As a result, the section 7 analysis 
and document can be streamlined to just those portions necessary to 
present a complete finding under section 7(a)(2) and 7(b)(3). We note 
also that the Service issuing the permit would have to ensure that its 
determination regarding jeopardy and destruction or adverse 
modification is not limited to the species for which the permit is 
authorizing take, but that it covers all listed species and all 
designated critical habitat under the Service's jurisdiction affected 
by the proposed action. In cases where issuance of a section 10 permit 
by one of the Services (e.g., FWS) may affect listed species or 
critical habitat under the jurisdiction of the other Service (e.g., 
NMFS), the permitting agency will still need to consult with the other 
Service, as well.
    While it is the responsibility of the Federal agency to develop the 
initiation package, we propose a collaborative process to facilitate 
the Federal agency's development of an initiation package that could be 
used as all or part of the Service's biological opinion. First, the 
Federal agency and the Service must mutually agree that the adoption 
process is appropriate for the proposed action. Subsequently, the 
Services and the Federal agency may develop coordination procedures 
that would facilitate adoption. This agreement must be explained in the 
Federal agency's initiation package and acknowledged in the Services' 
biological opinion. The purpose of the collaboration is to bring the 
information and expertise of both the Federal agency and the Service 
(and any applicant) into the resulting initiation package to facilitate 
a more efficient and effective consultation process. The end result of 
the adoption consultation process is expected to be the adoption of the 
initiation package with any necessary supplementary analyses and 
incidental take statement to be added by the Service as the Secretary's 
biological opinion in fulfillment of section 7(b) of the Act.
Expedited Consultation
    We propose to add a new provision titled ``Expedited 
consultations'' at Sec.  402.14(l) to offer opportunities to streamline 
consultation, particularly for actions that have minimal adverse 
effects or predictable effects based on previous consultation 
experience. This consultation process is proposed to provide an 
efficient means to complete formal consultation on projects ranging 
from those that have a minimal impact, to those projects with a 
potentially broad range of effects that are known and predictable, but 
that are unlikely to cause jeopardy or destruction or adverse 
modification. The Services have developed a vast knowledge of projects, 
and in the course of doing so, have concluded that some types of 
projects can be consulted on in a more expeditious manner without 
compromising the conservation of listed species or critical habitat. 
For example, a habitat-restoration project that results in high 
conservation value for the species but may have a small amount of 
incidental take through construction or monitoring would likely lend 
itself to this type of consultation (for Streamlined Consultation 
Guidance for Restoration and Recovery Projects, see https://www.fws.gov/endangered/esa-library/#consultations under 
``Policies'' for guidance documents for consultations with the Fish and 
Wildlife Service).
    Two elements are important to the successful implementation of this 
form of consultation. First is the mutual agreement between the Service 
and the Federal agency that this form of consultation is appropriate 
for the proposed action. Informal consultation has been an available 
optional process for 30 years and is most often utilized to address 
proposed actions that are not likely to adversely affect listed species 
or critical habitat. In contrast, expedited consultations are a new 
process and likely involve proposed actions that would otherwise go 
through the regular formal consultation process and require an 
incidental take statement. We make mutual agreement a required first 
step in the expedited consultation process to avoid wasted effort if 
Federal agencies propose actions for expedited consultation that would 
not be suitable for expedited analysis by the Service. The second 
important element is the development of a sufficient initiation package 
(as described in Sec.  402.14(c) of the regulations) that provides all 
the information needed to allow the Service to prepare a streamlined 
consultation response within mutually agreed-upon expedited timeframes. 
We expect that a combination of one-on-one collaboration with Federal 
agency staff and the availability of guidance and templates will ensure 
the most efficient process for development of initiation packages and 
expedited biological opinions. For a NMFS example of a similar effort 
for informal consultations through the development of guidance, see 
https://www.greateratlantic.fisheries.noaa.gov/protected/section7/guidance/consultation/#writing.
    In Sec.  402.14, we propose to redesignate current paragraph (l) as 
paragraph (m) to accommodate the addition of the proposed new paragraph 
(l).

Section 402.16--Reinitiation of Consultation

    We propose two changes to this section. First, we propose to remove 
the term ``formal'' from the title and text of this section to 
acknowledge that the requirement to reinitiate consultation applies to 
all section 7(a)(2) consultations. By practice, action agencies have 
reinitiated informal consultations when a trigger for reinitiation has 
been met. Courts have also held that reinitiation is required in the 
context of informal consultation. See Forest Guardians v. Johanns, 450 
F.3d 455, 458 (9th Cir. 2006). Second, we propose to amend this section 
to address issues arising under the Ninth Circuit's decision in 
Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 
1075 (9th Cir. 2015), cert. denied, 137 S. Ct. 293 (2016). In 
Cottonwood, the court held that the Forest Service was required to 
reinitiate consultation on certain forest management plans due to the 
designation of Canada lynx critical habitat. The court held that, even 
if an

[[Page 35189]]

approved land management plan is considered to be a completed action, 
the Forest Service nonetheless was obligated to reinitiate consultation 
since it retained ``discretionary Federal involvement or control'' over 
the plan. Cottonwood, 789 F.3d at 1084-85.
    We propose to make non-substantive redesignations and then revise 
Sec.  402.16 by adding a new paragraph (b) to clarify that the duty to 
reinitiate does not apply to an existing programmatic land management 
plan prepared pursuant to the Federal Land Policy Management Act 
(FLPMA), 43 U.S.C. 1701 et seq., or the National Forest Management Act 
(NFMA), 16 U.S.C. 1600 et seq. when a new species is listed or new 
critical habitat is designated.
    We reaffirm that only affirmative discretionary actions are subject 
to reinitiation under our regulations, and the mere existence of a 
programmatic land management plan is not affirmative discretionary 
action. See generally Southern Utah Wilderness Alliance v. Norton, 542 
U.S. 55 (2004). See also National Ass'n of Homebuilders v. Defenders of 
Wildlife, 551 U.S. 644 (2007). While the Act does not expressly mandate 
reinitiation on discretionary affirmative actions, in 1986 we 
determined that the Act's legislative history and conservation goals 
supported reinitiation if certain triggers are met. After decades of 
experience cooperating with action agencies across the Federal 
Government, we have gained the expertise of when reinitiation of 
consultation is most effective to meeting the overall goals of the Act. 
Reinitiating on a purely programmatic land management plan when new 
species are listed or critical habitat designated does little to 
further these goals. Both the Bureau of Land Management (BLM) and U.S. 
Forest Service (USFS) are required to periodically update their land 
management plans, at which time they would consult on any newly listed 
species or designated critical habitat. BLM is required to periodically 
evaluate and revise Resource Management Plans (see 43 CFR 1610); the 
interval between reevaluations should not exceed 5 years (see BLM 
Handbook H-1601-1 at p. 34). USFS is required to revise their land 
management plans at least every 15 years (see 36 CFR 219.7). In 
addition to being required to periodically revise their land management 
plans, both BLM and USFS are required to consult on any specific on-
the-ground actions that implement the land management plans if those 
actions may affect listed species or critical habitat. We are thus 
exercising our discretion and narrowing Sec.  402.16 to exclude two 
types of plans that have no immediate on-the-ground effects. Requiring 
reinitiation on these completed plans based on newly listed species or 
critical habitat often results in impractical and disruptive burdens.
    Moreover, reinitiating consultation on a programmatic land 
management plan results in little benefit to the newly listed species 
or critical habitat because the plan's mere existence does not result 
in any immediate effects upon either, thus rendering any reinitiation 
under these conditions inefficient and ineffective. In contrast, 
specific on-the-ground actions that implement the plan are subject to 
their own section 7 consultations if those actions may affect listed 
species or critical habitat. These on-the-ground, action-specific 
consultations allow us to direct our limited resources to those actions 
that actually cause effects and ensure that the USFS and the BLM 
fulfill their obligations under section 7. Thus, this new proposed 
regulation also restates our position that, while a completed 
programmatic land management plan does not require reinitiation upon 
the listing of new species or critical habitat, any on-the-ground 
subsequent actions taken pursuant to the plan must be subject to a 
separate section 7 consultation if those actions may affect the newly 
listed species or critical habitat.
    Rather than reinitiation of a section 7(a)(2) consultation at the 
plan level, the Services recommend these agencies develop section 
7(a)(1) conservation programs in consultation with the Services when a 
new species is listed or critical habitat designated. This proactive, 
conservation planning process will enable them to better synchronize 
their actions and programs with the conservation and recovery needs of 
listed and proposed species. Such planning can help Federal agencies 
develop specific, pre-approved design criteria to ensure their actions 
are consistent with the conservation and recovery needs of the species. 
Additionally, these section 7(a)(1) programs will facilitate efficient 
development of the next programmatic section 7(a)(2) consultations when 
the land management plan is renewed.
    In addition to seeking comment on the proposed revision to 50 CFR 
402.16, we are seeking comments on whether to exempt other types of 
programmatic land or water management plans in addition to those 
prepared pursuant to FLPMA and NFMA from the requirement to reinitiate 
consultation when a new species is listed or critical habitat 
designated. We are also seeking comment on this proposed revision in 
light of the recently enacted Wildfire Suppression Funding and Forest 
Management Activities Act, H.R. 1625, Division O, which was included in 
the Omnibus Appropriations bill for fiscal year 2018.

Section 402.17--Other Provisions

    We propose to add a new Sec.  402.17 titled ``Other provisions.'' 
Within this new section, we propose a new provision titled ``Activities 
that are reasonably certain to occur,'' in order to clarify the 
application of the ``reasonably certain to occur'' standard referenced 
in Sec.  402.02 (defining effects of the action and cumulative effects) 
in two specific contexts. This new proposed provision applies only to 
activities caused by but not included in the proposed action and 
activities under cumulative effects. We propose to address reasonable 
certainty in these two contexts due to the substantial confusion that 
has sometimes resulted from determining when these sorts of activities 
should be considered. The proposed text addresses the relative level of 
certainty required and is intended to avoid inclusion of activities 
whose occurrence would be considered speculative, but also to avoid 
requiring an expectation that the activity is absolutely certain to 
occur. We also identify a non-exclusive list of factors that inform the 
determination of whether an activity should be considered reasonably 
certain to occur. For example, one of the factors to consider is the 
existence of any relevant plans (e.g., community plans, management 
plans, transportation plans, etc.). We also specify that this provision 
only applies to activities caused by but not included in the proposed 
action and activities under cumulative effects. Consistent with the 
Act, existing regulations, and agency practice, we do not propose to 
apply the reasonable certainty standard to whether the proposed action 
itself will be implemented, but again, only to the analysis of the 
effects of the action to ensure that the effects analysis does not 
focus on speculative impacts. This provision reflects the fundamental 
nature of consultation under section 7(a)(2) in which the Services 
consult on the action as proposed.

Request for Information

    We intend that a final regulation will consider information and 
recommendations from all interested parties. We therefore solicit 
comments, information, and recommendations from governmental agencies, 
Native American tribes, the scientific community, industry groups, 
environmental interest groups, and any

[[Page 35190]]

other interested parties. All comments and materials received by the 
date listed in DATES above will be considered prior to the approval of 
a final document.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
https://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the website. If 
your submission is made via a hardcopy that includes personal 
identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
https://www.regulations.gov, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Division of Environmental 
Review (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
will review all significant rules. OIRA has determined that this rule 
is significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements. This proposed rule is consistent with 
Executive Order 13563, and in particular with the requirement of 
retrospective analysis of existing rules, designed ``to make the 
agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''

Executive Order 13771

    This proposed rule is expected to be a deregulatory action under 
E.O. 13771.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his or her designee, certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA amended the Regulatory Flexibility Act to require 
Federal agencies to provide 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. We certify that, if adopted as 
proposed, this proposed rule would not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking revises and clarifies existing requirements for 
Federal agencies under the Endangered Species Act. Federal agencies are 
the only entities that are directly affected by this rule, and they are 
not considered to be small entities under SBA's size standards. No 
other entities are directly affected by this rule. Moreover, this 
proposed rulemaking action is not a major rule under SBREFA.
    This proposed rule, if made final, would be applied in determining 
whether a Federal agency has insured, in consultation with the 
Services, that any action it would authorize, fund, or carry out is not 
likely to jeopardize listed species or result in the destruction or 
adverse modification of critical habitat. This proposed rule is 
substantially unlikely to affect our determinations as to whether or 
not proposed actions are likely to jeopardize listed species or result 
in the destruction or adverse modification of critical habitat. The 
proposed rule would serve to provide clarity to the standards with 
which we will evaluate agency actions pursuant to section 7 of the 
Endangered Species Act.

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) On the basis of information contained in the Regulatory 
Flexibility Act section above, this proposed rule would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this rule would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because the proposed 
rule would not place additional requirements on any city, county, or 
other local municipalities.
    (b) This proposed rule would 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, this proposed rule is not a 
``significant regulatory action''' under the Unfunded Mandates Reform 
Act. This proposed rule would impose no additional management or 
protection requirements on State, local, or tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
pertain to ``taking'' of private property interests, nor would it 
directly affect private property. A takings implication assessment is 
not required because this proposed rule (1) would not effectively 
compel a property owner to suffer a physical invasion of property and 
(2) would not deny all economically beneficial or productive use of the 
land or aquatic resources. This proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
endangered species and threatened species) and would not present a 
barrier to all reasonable and expected beneficial use of private 
property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule would have significant Federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to improving and clarifying 
the interagency consultation processes under the Endangered Species

[[Page 35191]]

Act and would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

Civil Justice Reform (E.O. 12988)

    This proposed rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This proposed rule would clarify the interagency 
consultation processes under the Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number.

National Environmental Policy Act

    We are analyzing this proposed regulation in accordance with the 
criteria of NEPA, the Department of the Interior regulations on 
implementation of NEPA (43 CFR 46.10-46.450), the Department of the 
Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and 
the companion manual, ``Policy and Procedures for Compliance with the 
National Environmental Policy Act and Related Authorities,'' which 
became effective January 13, 2017. We invite the public to comment on 
the extent to which this proposed regulation may have a significant 
impact on the human environment, or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. We will complete our analysis, in 
compliance with NEPA, before finalizing this regulation.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. The proposed revised 
regulations are not expected to affect energy supplies, distribution, 
and use. Therefore, this action is a not a significant energy action, 
and no Statement of Energy Effects is required.

Clarity of the 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:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) 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.

References Cited

    A complete list of all references cited in this document is 
available on the internet at https://www.regulations.gov in Docket No. 
FWS-HQ-ES-2018-0009 or upon request from the U.S. Fish and Wildlife 
Service (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Ecological Services Program, U.S. Fish and Wildlife Service, 5275 
Leesburg Pike, Falls Church, VA 22041-3803, and the National Marine 
Fisheries Service's Endangered Species Division, 1335 East-West 
Highway, Silver Spring, MD 20910.

Authority

    We issue this proposed rule under the authority of the Endangered 
Species Act, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Proposed Regulation Promulgation

    Accordingly, we propose to amend subparts A and B of part 402, 
subchapter A of chapter IV, title 50 of the Code of Federal 
Regulations, as set forth below:

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

0
1. The authority citation for part 402 continues to read as follows:

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

0
2. Amend Sec.  402.02 by revising the definitions of ``Destruction or 
adverse modification,'' ``Director,'' and ``Effects of the action'' and 
adding definitions for ``Environmental baseline'' and ``Programmatic 
consultation'' in alphabetic order to read as follows:


Sec.  402.02  Definitions.

* * * * *
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    Director refers to the Assistant Administrator for Fisheries for 
the National Marine Fisheries Service, or his or her authorized 
representative; or the Director of the U.S. Fish and Wildlife Service, 
or his or her authorized representative.
* * * * *
    Effects of the action are all effects on the listed species or 
critical habitat that are caused by the proposed action, including the 
effects of other activities that are caused by the proposed action. An 
effect or activity is caused by the proposed action if it would not 
occur but for the proposed action and it is reasonably certain to 
occur. Effects of the action may occur later in time and may include 
effects occurring outside the immediate area involved in the action.
    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.
* * * * *
    Programmatic consultation is a consultation addressing an agency's 
multiple actions on a program, region, or other basis. Programmatic 
consultations allow the Services to

[[Page 35192]]

consult on the effects of programmatic actions such as:
    (1) Multiple similar, frequently occurring or routine actions 
expected to be implemented in particular geographic areas; and
    (2) A proposed program, plan, policy, or regulation providing a 
framework for future proposed actions.
* * * * *
0
3. Amend Sec.  402.14 by:
0
a. Revising paragraphs (c), (g)(2), (g)(4), (g)(8), and (h):
0
b. Redesignating paragraph (l) as paragraph (m); and
0
c. Adding a new paragraph (l).
    The revisions and addition read as follows:


Sec.  402.14  Formal consultation.

* * * * *
    (c) Initiation of formal consultation. (1) A written request to 
initiate formal consultation shall be submitted to the Director and 
shall include:
    (i) A description of the proposed action, including any measures 
intended to avoid, minimize, or offset effects of the action. 
Consistent with the nature and scope of the proposed action, the 
description shall provide sufficient detail to assess the effects of 
the action on listed species and critical habitat, including:
    (A) The purpose of the action;
    (B) The duration and timing of the action;
    (C) The location of the action;
    (D) The specific components of the action and how they will be 
carried out;
    (E) Maps, drawings, blueprints, or similar schematics of the 
action; and
    (F) Any other available information related to the nature and scope 
of the proposed action relevant to its effects on listed species or 
designated critical habitat.
    (ii) A map or description of all areas to be affected directly or 
indirectly by the Federal action, and not merely the immediate area 
involved in the action (i.e., the action area as defined at Sec.  
402.02).
    (iii) Information obtained by or in the possession of the Federal 
agency and any applicant on the listed species and designated critical 
habitat in the action area (as required by paragraph (c)(1)(ii) of this 
section), including available information such as the presence, 
abundance, density, or periodic occurrence of listed species and the 
condition and location of species' habitat, including any critical 
habitat.
    (iv) A description of the effects of the action and an analysis of 
any cumulative effects.
    (v) A summary of any relevant information provided by the 
applicant, if available.
    (vi) Any other relevant available information on the effects of the 
proposed action on listed species or designated critical habitat, 
including any relevant reports such as environmental impact statements 
and environmental assessments.
    (2) A Federal agency may submit existing documents prepared for the 
proposed action such as NEPA analyses or other reports in substitution 
for the initiation package outlined in this paragraph (c). However, any 
such substitution shall be accompanied by a written summary specifying 
the location of the information that satisfies the elements above in 
the submitted document(s).
    (3) Formal consultation shall not be initiated by the Federal 
agency until any required biological assessment has been completed and 
submitted to the Director in accordance with Sec.  402.12.
    (4) Any request for formal consultation may encompass, subject to 
the approval of the Director, a number of similar individual actions 
within a given geographical area, a programmatic consultation, or a 
segment of a comprehensive plan. This provision does not relieve the 
Federal agency of the requirements for considering the effects of the 
action or actions as a whole.
* * * * *
    (g) * * *
    (2) Evaluate the current status and environmental baseline of the 
listed species or critical habitat.
* * * * *
    (4) Add the effects of the action and cumulative effects to the 
environmental baseline and in light of the status of the species and 
critical habitat, formulate the Service's opinion as to whether the 
action is likely to jeopardize the continued existence of listed 
species or result in the destruction or adverse modification of 
critical habitat.
* * * * *
    (8) In formulating its biological opinion, any reasonable and 
prudent alternatives, and any reasonable and prudent measures, the 
Service will use the best scientific and commercial data available and 
will give appropriate consideration to any beneficial actions as 
proposed or taken by the Federal agency or applicant, including any 
actions taken prior to the initiation of consultation. Measures 
included in the proposed action or a reasonable and prudent alternative 
that are intended to avoid, minimize, or offset the effects of an 
action are considered like other portions of the action and do not 
require any additional demonstration of specific binding plans or a 
clear, definite commitment of resources.
    (h) Biological opinions.
    (1) The biological opinion shall include:
    (i) A summary of the information on which the opinion is based;
    (ii) A detailed discussion of the effects of the action on listed 
species or critical habitat; and
    (iii) The Service's opinion on whether the action is:
    (A) Likely to jeopardize the continued existence of a listed 
species or result in the destruction or adverse modification of 
critical habitat (a ``jeopardy'' biological opinion); or
    (B) Not likely to jeopardize the continued existence of a listed 
species or result in the destruction or adverse modification of 
critical habitat (a ``no jeopardy'' biological opinion).
    (2) A ``jeopardy'' biological opinion shall include reasonable and 
prudent alternatives, if any. If the Service is unable to develop such 
alternatives, the Service will indicate that to the best of its 
knowledge there are no reasonable and prudent alternatives.
    (3) The Service may adopt all or part of:
    (i) A Federal agency's initiation package; or
    (ii) The Service's analysis required to issue a permit under 
section 10(a) of the Act in its biological opinion.
    (4) A Federal agency and the Service may agree to follow an 
optional collaborative process that would further the ability of the 
Service to adopt the information and analysis provided by the Federal 
agency during consultation in the development of the Service's 
biological opinion to improve efficiency in the consultation process 
and reduce duplicative efforts. The Federal agency and the Service 
shall consider the nature, size, and scope of the action or its 
anticipated effects on listed species or critical habitat, and other 
relevant factors to determine whether an action or a class of actions 
is appropriate for this process. The Federal agency and the Service may 
develop coordination procedures that would facilitate adoption. The end 
result of the adoption consultation process is expected to be the 
adoption of the initiation package with any necessary supplementary 
analyses and incidental take statement to be added by the Service, if 
appropriate, as the Service's biological opinion in fulfillment of 
section 7(b) of the Act.
* * * * *
    (l) Expedited consultations. Expedited consultation is an optional 
formal consultation process that a Federal

[[Page 35193]]

agency and the Service may enter into upon mutual agreement. To 
determine whether an action or a class of actions is appropriate for 
this type of consultation, the Federal agency and the Service shall 
consider the nature, size, and scope of the action or its anticipated 
effects on listed species or critical habitat and other relevant 
factors. Conservation actions whose primary purpose is to have 
beneficial effects on listed species will likely be considered 
appropriate for expedited consultation.
    (1) Upon agreement to use this expedited consultation process, the 
Federal agency and the Service shall establish the expedited timelines 
for the completion of this consultation process.
    (2) Federal agency responsibilities: To request initiation of 
expedited consultation, the Federal agency shall provide all the 
information required to initiate consultation under paragraph (c) of 
this section. To maximize efficiency and ensure that it develops the 
appropriate level of information, the Federal agency is encouraged to 
develop its initiation package in coordination with the Service.
    (3) Service responsibilities: In addition to the Service's 
responsibilities under the provisions of this section, the Service 
will:
    (i) Provide relevant species information to the Federal agency and 
guidance to assist the Federal agency in completing its effects 
analysis in the initiation package; and
    (ii) Conclude the consultation and issue a biological opinion 
within the agreed-upon timeframes.
* * * * *
0
4. Amend Sec.  402.16 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a) through (d) as paragraphs (a)(1) 
through (a)(4);
0
c. Designating the introductory text as paragraph (a) and revising the 
newly designated paragraph (a); and
0
d. Adding a new paragraph (b).
    The revisions and addition read as follows:


Sec.  402.16  Reinitiation of consultation.

    (a) Reinitiation of consultation is required and shall be requested 
by the Federal agency or by the Service, where discretionary Federal 
involvement or control over the action has been retained or is 
authorized by law and:
* * * * *
    (b) An agency shall not be required to reinitiate consultation 
after the approval of a land management plan prepared pursuant to 43 
U.S.C. 1712 or 16 U.S.C. 1604 upon listing of a new species or 
designation of new critical habitat, provided that any authorized 
actions that may affect the newly listed species or designated critical 
habitat will be addressed through a separate action-specific 
consultation.
0
5. Add Sec.  402.17 to read as follows:


Sec.  402.17  Other provisions.

    (a) Activities that are reasonably certain to occur. To be 
considered reasonably certain to occur, the activity cannot be 
speculative but does not need to be guaranteed. Factors to consider 
include, but are not limited to:
    (1) Past relevant experiences;
    (2) Any existing relevant plans; and
    (3) Any remaining economic, administrative, and legal requirements 
necessary for the activity to go forward.
    (b) The provisions in paragraph (a) of this section apply only to 
activities caused by but not included in the proposed action and 
activities considered under cumulative effects.


Sec.  402.40   [Amended]

0
6. In Sec.  402.40, amend paragraph (b) by removing ``Sec.  
402.14(c)(1)-(6)'' and in its place adding ``Sec.  402.14(c)''.

    Dated: July 18, 2018.
Ryan K. Zinke,
Secretary, Department of the Interior.
    Dated: July 16, 2018.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2018-15812 Filed 7-24-18; 8:45 am]
 BILLING CODE 3510-22-P; 4333-15-P