Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 2373-2379 [2021-00366]

Agencies

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

[Federal Register Volume 86, Number 7 (Tuesday, January 12, 2021)]
[Proposed Rules]
[Pages 2373-2379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00366]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 402

[Docket No. FWS-HQ-ES-2020-0102; FXES1114090FEDR-201-FF09E30000; Docket 
No. 201231-0363]
RIN 1018-BF17; 0648-BJ77


Endangered and Threatened Wildlife and Plants; Regulations for 
Interagency Cooperation

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

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (collectively referred to as the 
``Services'' or ``we'') propose to amend the Services' consultation 
regulations under the Endangered Species Act of 1973, as amended, 
pertaining to the U.S. Forest Service and Bureau of Land Management. 
The proposed revisions would clarify that reinitiation of consultation 
would not be required for these agencies' previously approved land 
management plans when new information reveals that effects of a plan 
may affect listed species or critical habitat in a manner or to an 
extent not previously considered, provided that any authorized actions 
for which the new information is relevant will be addressed through a 
separate action-specific consultation. The proposed revisions would 
also replace the existing regulation's temporary instructions 
concerning National Forest System lands with permanent instructions. 
The Services are proposing this change to improve and clarify the 
interagency cooperation procedures by making them more efficient and 
consistent.

DATES: We will accept comments from all interested parties until 
February 11, 2021. 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-2012;2020-0102, 
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 to: Public Comments 
Processing, Attn: FWS-HQ-ES-2020-0102, U.S. Fish and Wildlife Service, 
MS:JAO/3W, 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 Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife 
Service, Department of the Interior, Washington, DC 20240, telephone 
202/208-4646; or Samuel D. Rauch, III, National Marine Fisheries 
Service, Department of Commerce, 1315 East-West Highway, Silver Spring, 
MD 20910, telephone 301/427-8000. 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 shall 
seek to conserve threatened and endangered species and use its 
authorities in furtherance of the purposes of the Act. The Lists of 
Endangered and Threatened Wildlife and Endangered and Threatened Plants 
(hereafter, ``the Lists'') are in title 50 of the Code of Federal 
Regulations in part 17 (Sec.  17.11(h) and Sec.  17.12(h)).
    Part 402 of title 50 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, 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. The Secretary 
of the Interior and the Secretary of Agriculture, through the Bureau of 
Land Management (BLM) and the U.S. Forest Service (FS), respectively, 
are responsible for the administration, management, and protection of 
approximately 438 million surface acres of Federal lands. Congress has 
directed that both Departments develop land management plans that 
provide for management of these Federal lands in accordance with the 
concepts of multiple use and sustained yield.
    More specifically, the Federal Land Policy and Management Act of 
1976 (FLPMA) and the National Forest Management Act (NFMA) require the 
Secretaries of the Interior and Agriculture, respectively, to 
``develop, maintain, and, as appropriate, revise'' land management 
plans and to coordinate such planning with other Federal agencies. See 
43 U.S.C. 1712(a), (c)(1)-(c)(9); 16 U.S.C. 1604(a); see also Norton v. 
Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA); Ohio 
Forestry Ass'n v. Sierra Club, 523 U.S. 726, 728 (1998) (Ohio 
Forestry). The BLM and FS develop plans that provide standards and 
guidelines for land and resource management that reflect both economic 
and environmental considerations. Once a plan is adopted, the agencies' 
individual project decisions and associated permits, contracts, and 
other instruments regulating use and occupancy within a unit covered by 
the plan must be consistent with the plan. See 43 U.S.C. 1732(a); 16 
U.S.C. 1604(i); 43 CFR 1601.0-5, 1610.5-3(a); 36 CFR 219.15.

[[Page 2374]]

    Land management plans are broad planning documents that guide long-
term natural resource management. Unless it expressly states otherwise, 
a plan generally does not authorize any on-the-ground action such as 
road building or timber cutting. Ohio Forestry, 523 U.S. at 729-730; 
SUWA, 542 U.S. at 59, 69-70. Before authorizing a project in an area 
governed by an approved land management plan, the BLM and FS must 
ensure that the proposed project is consistent with the applicable 
plan, while also complying with other applicable laws, including 
section 7 of the ESA.
    In 2019, the Services revised 50 CFR 402.16 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), which held that the FS must reinitiate 
consultation on its existing programmatic forest plan when the FWS 
designated critical habitat for the Canada lynx. See 84 FR 44976-45018 
(August 27, 2019). We added a new paragraph (b) to 50 CFR 402.16 to 
clarify that the duty to reinitiate consultation does not apply to an 
approved land management plan prepared pursuant to FLPMA or NFMA when a 
species is added to the Lists or new critical habitat is designated, in 
certain specific circumstances, 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. 
Consistent with the Wildfire Suppression Funding and Forest Management 
Activities Act, H.R. 1625, Division O, section 208, which was included 
in the Omnibus Appropriations bill for fiscal year 2018 (codified at 16 
U.S.C. 1604(d)(2)(B)), we noted that this statutory exception to 
reinitiation of consultation does not apply to those land management 
plans prepared pursuant to 16 U.S.C. 1604 if (1) 15 years have passed 
since the date the agency adopted the land management plan and (2) 5 
years have passed since the enactment of Public Law 115-141 [March 23, 
2018] or the date of the listing of a species or the designation of 
critical habitat, whichever is later. These statutory timing provisions 
are discussed in greater detail below.
    We aligned the application of Sec.  402.16(a)(4) to exclude from 
reinitiation of consultation approved land management plans (including 
approved amendments and revisions) prepared pursuant to the FLPMA or 
the NFMA that have no immediate on-the-ground effects, but rather are 
frameworks for future actions. Those excluded approved plans contrast 
with specific on-the-ground actions that are subject to their own 
section 7 consultations if those on-the-ground actions may affect 
listed species or critical habitat. Thus, the 2019 revised regulation 
also noted that a previously approved land management plan prepared 
pursuant to FLPMA or NFMA does not require reinitiation of consultation 
upon the new listing of species or new designation of critical habitat, 
if any effects on newly listed species or newly designated critical 
habitat (to the extent there are any) will be analyzed in a separate 
section 7 consultation on a subsequent authorized action taken under 
the plan.

Proposed Regulatory Revisions Concerning New Information

    We now propose to further amend our regulations to address a 
closely related issue that also arose in Cottonwood by revising Sec.  
402.16 (b) to clarify that the duty to reinitiate does not apply to an 
approved land management plan prepared pursuant to FLPMA, 43 U.S.C. 
1701, or NFMA, 16 U.S.C. 1604, if new information reveals effects of 
the plan on listed species or critical habitat in a manner or to an 
extent not previously considered, provided that any subsequent actions 
taken pursuant to the plan will be subject to a separate section 7 
consultation if those actions may affect listed species or critical 
habitat. Generally, ground-disturbing actions would be authorized 
subsequent to approval of the plan and addressed through a subsequent 
action-specific consultation. However, there are actions in some BLM 
land management plans that allow ground-disturbing action upon 
approval. For example, BLM plans may include off-highway vehicle (OHV) 
``open areas'' that do not require subsequent approval. If the plan 
directly authorizes the action (e.g., OHV open areas), then this 
proposed exemption from reinitiation does not apply if new information 
reveals effects of the action that may affect listed species or 
critical habitat in a manner or to an extent not previously considered 
with respect to those activities under the plan (e.g., OHV use in an 
open area) that would not be subject to future action-specific 
consultation.
    This proposed regulatory revision would improve the efficiency of 
the consultation process while ensuring consideration of new 
information prior to the implementation of actions that may affect 
listed species or critical habitat. Unless they expressly state 
otherwise, completed land management plans do not result in any 
immediate on-the-ground effects, and relevant new information would be 
considered during a separate section 7 consultation on a subsequent 
action taken in conformance with the approved land management plan if 
those actions may affect listed species or critical habitat. As 
discussed in greater detail below, this is consistent with the 
government's longstanding legal position that the duty to consult under 
section 7 is limited to affirmative agency actions, which include 
prospective or ongoing actions authorized, funded, or carried out by 
Federal agencies--but not to completed actions or agency inaction.
    Land management plans prepared pursuant to NFMA or FLPMA do not 
differ significantly in overall structure and generally contain a 
framework for desired conditions, objectives, and guidance for project 
and activity decision-making in the plan area. Plans do not generally 
grant, withhold, or modify any contract, permit, or other legal 
instrument or create any legal rights. As courts have noted, ``a 
statement in a plan that BLM ``will'' take this, that, or the other 
action'' is not a legally binding commitment enforceable under the 
[Administrative Procedure Act.]' '' Forest Guardians v. Forsgren, 478 
F.3d 1149, 1156 n. 9 (10th Cir. 2007) (quoting SUWA, 542 U.S. at 72).
    The proposed revision appropriately relies on the proposition that 
a land management plan prepared pursuant to NFMA or FLPMA establishes a 
framework for the development of specific future action(s) but does not 
normally authorize future action(s). Land management plans do not 
generally fund, authorize, or carry out ground-disturbing actions. 
However, as described above, there are actions in some BLM land 
management plans that are directly authorized by the plan itself and 
will not be reviewed in a separate ESA section 7 consultation. Thus, to 
the extent that new information reveals effects to listed species or 
critical habitat from these actions directly authorized by the plan and 
that were not previously considered, this proposed exemption from 
reinitiation of consultation would not apply.
    The proposed revisions to the regulations are consistent with the 
statutory purposes of section 7 of the ESA. New information regarding 
effects not previously considered in the programmatic biological 
opinion would be evaluated in a separate consultation in which more 
site-specific details would be available to better assess any impacts 
on listed species or critical habitat. In addition, to the maximum

[[Page 2375]]

extent that doing so is consistent with the agencies' responsibilities 
under the ESA, the process of updating or revisiting programmatic 
consultations on land management plans is usually best conducted in 
conjunction with the amendment and revision process set forth in the 
planning statutes rather than on an ad hoc basis. Thus, the proposed 
revision to the regulations would make the consultation process more 
efficient and consistent, while ensuring that species and the habitats 
upon which they depend are conserved. Specifically, we propose to 
revise paragraph (b) of Sec.  402.16 by moving some of the existing 
language to new paragraph (b)(1) and adding a new paragraph (b)(2), 
which includes language pertaining to land management plans for which 
new information reveals that effects of the action may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered.
    Congress did not address land management plans prepared pursuant to 
FLPMA in the 2018 Omnibus Act, except for grant lands under the Oregon 
and California Revested Lands Act, 39 Stat. 218, and the Coos Bay Wagon 
Road Reconveyed Lands Act, 40 Stat. 1179. No expiration date was 
attached to these provisions. Accordingly, like the 2019 regulatory 
exemption from reinitiation on the basis of newly listed species or 
designated critical habitat, this proposal would exclude from the 
reinitiation requirement any completed land management plan prepared 
pursuant to FLPMA from reinitiation of consultation on the basis of new 
information on effects of the plan, as long as any action taken 
pursuant to the plan will be subject to an action-specific section 7 
consultation if that action may affect a listed species or critical 
habitat. For the same reasons set forth below as to National Forest 
System lands, the Services conclude that these instructions may be 
established on a permanent basis.
    After decades of experience cooperating with action agencies across 
the Federal Government, we have gained expertise with respect to when 
reinitiation of consultation is most effective in meeting the overall 
goals of the Act. As a legal matter, as the Department of Justice 
correctly argued in Cottonwood, the duty to reinitiate consultation 
does not apply to completed land and resource management plans. See, 
e.g., Forest Guardians v. Forsgren, 478 F.3d at 1158-59 (disagreeing 
with Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994)). 
Independently of any such legal considerations, as a policy matter, 
similar to reinitiating consultation on a land management plan when new 
species are listed or critical habitat designated, reinitiation of 
consultation on those plans based on new information on effects of the 
plan does little to further the goals of the Act. Both the BLM and the 
FS periodically update their land management plans, at which time they 
would consider any new information during consultation on effects of 
the plan. The BLM periodically evaluates and revises resource 
management plans (see 43 CFR subpart 1610), and the interval between 
reevaluations should not exceed 5 years (see BLM Handbook H-1601-1 at 
p. 34). FS is required to revise their land management plans at least 
every 15 years (see 36 CFR 219.7). In addition to periodically revising 
their land management plans, both BLM and FS are required to consult on 
any specific actions if those actions may affect listed species or 
critical habitat.
    We propose, therefore, to expand Sec.  402.16(b) to apply likewise 
to the receipt of new information revealing effects of the action that 
may affect listed species or critical habitat in a manner or to an 
extent not previously considered. Requiring reinitiation on these 
completed plans based on new information of effects of the existing 
plans often results in impractical and disruptive burdens while 
resulting in little benefit to listed species or critical habitat. 
Generally, specific on-the-ground actions taken in conformance with the 
approved land management plan are subject to their own action-specific 
section 7 consultations if those actions may affect listed species or 
critical habitat, and relevant new information would be analyzed at 
that time. In these cases, focusing on these action-specific 
consultations would allow the affected agencies to direct their limited 
resources to those actions that cause on-the-ground effects to listed 
species or designated critical habitats and ensure that the FS and the 
BLM fulfill their obligations under section 7, while avoiding 
unnecessary reinitiation at the plan level.
    For example, if new information revealed a higher density of a 
listed species in a plan area than was known during the consultation on 
the land management plan, that new information would be considered and 
incorporated in future consultations on specific authorized actions 
that may affect that species and/or its critical habitat. As another 
example, if, after completion of consultation on a land management 
plan, it was learned that a technique or practice that was anticipated 
to be used during subsequent projects is reasonably certain to have a 
greater impact on the environment than that analyzed in the 
consultation on the land management plan, that new information would 
also be considered and incorporated in future consultations on specific 
authorized actions that may affect listed species and/or critical 
habitat. Each consultation builds on past consultations no matter 
whether the action being consulted on relates to a plan or to a 
specific action.
    At the early stage and broad scale of plan consultation, the 
agencies lack specific information on whether and how actual projects 
and activities will occur. As discussed, plans are programmatic 
documents that set broad goals and guidelines for land management, but 
typically do not authorize ground-disturbing activities. See Ohio 
Forestry, 523 U.S. at 733-34. The number, type, timing, location, and 
other details for any activities that may occur in the plan area mostly 
are unknown to the action and consulting agencies at the time of 
consultation on a plan.
    By contrast, in the context of project consultations, the 
consulting agency knows specifically where and when the actions are to 
occur and the details about the types of activities proposed that were 
unknown at the time of the consultation on the plan. Moreover, as part 
of the environmental baseline, the consulting agency knows how other 
Federal, State, and private actions have affected the species and its 
critical habitat and analyzes those impacts during the project 
consultations. See 50 CFR 402.02. Significantly, the project 
consultations are not narrowly limited to the effects of the individual 
action on the species or its critical habitat but include ``all 
consequences to listed species or critical habitat that are caused by 
the proposed action, including the consequences of other activities 
that are caused by the proposed action [that] . . . would not occur but 
for the proposed action and it is reasonably certain to occur.'' Id. 
Sec.  402.02. These include effects that may occur later in time or 
outside the immediate area involved in the action. Id.; see also Sec.  
402.17. Thus, each section 7 consultation builds on the consultations 
for previous actions.
    This proposed revision to the regulations would not change the 
approach for subsequent consultations on specific authorized actions. 
During consultation, the Services and the action agency are required to 
use the best scientific and commercial data available, and this 
requirement necessarily encompasses considering new relevant 
information.

[[Page 2376]]

Proposed Regulatory Revisions Concerning Permanent Rulemaking as to 
National Forest System Lands

    The proposed revisions would remove the existing regulation's 
timing limitations concerning National Forest System lands. To be sure, 
the 2018 Act's instructions will remain in force for the time specified 
by the statute itself. But while Congress' legislative solution has 
proven to be protective of species' interests and workable for all of 
the agencies involved, it is only a temporary fix. Therefore, we have 
decided to invoke our general authority under section 7 concerning 
inter-agency consultation and issue permanent consultation instructions 
for FS planning efforts, just as we did for the BLM in 2019.
    As previously noted, in 2018 Congress statutorily intervened to 
temporarily resolve the effects of the Cottonwood ruling regarding ESA 
reinitiation requirements following critical habitat designations. The 
Omnibus Act created a temporary, safe harbor exempting the FS from 
reinitiating consultation for approved land management plans when a new 
species is listed or new critical habitat designation occurs. The 
Omnibus Act also established a permanent exemption from reinitiation 
for certain lands managed by the BLM. To recognize these instructions, 
the Services amended the reinitiation regulations at 50 CFR 402.16 to 
incorporate the Omnibus Act's instructions that reinitiation of 
consultation shall not be required for land management plans upon 
listing of a new species or designation of new critical habitat, 
subject to the time limitations on this safe-harbor relief that were 
specified in the Omnibus Act (84 FR 45017, August 27, 2019). The 
regulatory provisions applicable to National Forest System lands 
reflected the Omnibus Act's rolling sunset of the safe-harbor 
exemptions from reinitiation of consultation. For a National Forest 
System plan that is outside the time limitations that apply to the 
relief afforded by the Omnibus Act, reinitiation of consultation is 
governed by standard ESA statutory and regulatory requirements and is 
not subject to the safe harbor afforded by the Act.
    While the Omnibus Act set specific temporal timeframes for its 
temporary safe-harbor exemption of NFS lands, the Services retain their 
general ESA section 7 authority to establish procedures governing 
inter-agency cooperation. Congress' negotiated outcome of a temporary 
safe-harbor solution to the problems created by Cottonwood leaves 
intact the Services' authority to establish a permanent administrative 
remedy to such problems.
    First, the ESA sets forth a general duty to consult on agency 
action and broadly authorizes the Services to determine the manner in 
which that duty is carried out. See Babbitt v. Sweet Home Chapter of 
Communities for a Greater Oregon, 515 U.S. 687, 708 (1995) (``When it 
enacted the ESA, Congress delegated broad administrative and 
interpretive power to the Secretary.''); 16 U.S.C. 1533(b)(8) 
(authorizing ``publication in the Federal Register of any proposed or 
final regulation which is necessary or appropriate to carry out the 
purposes of this Act''). We also note that while section 7 was enacted 
in 1973 and initial ESA regulations were issued in 1978, no 
reinitiation regulation was issued until 1986. Agencies routinely 
revisit their regulations seeking improvement and resolving 
ambiguities. See Nat'l Cable & Telecomm. Ass'n v. Brand X internet 
Servs., 545 U.S. 967, 982-83 (2005). The Services' authority to clarify 
and adjust the consultation procedures is well-supported in the ESA's 
text and case law and is necessary to ensure the ESA's proper 
administration. A permanent solution to resolve conflicting judicial 
interpretations of administrative regulations is entirely appropriate 
and within the Service's authority.
    Second, the fact that Congress already has enacted a narrow, 
temporary fix does not preclude a permanent administrative solution. 
Nothing in the Omnibus Act's text suggests a broad preemptive effect as 
to the Services' general rulemaking authority. More specifically, while 
16 U.S.C. 1604(d)(2)(B) provides that the protection afforded by 
subparagraph (A) ``shall not apply'' if certain temporal limits have 
been exceeded, subparagraph (A) provides that ``notwithstanding any 
other provision of law, the Secretary shall not be required to engage 
in consultation under this section or any other provision of law 
(including section 7 of Public Law 93-205 (16 U.S.C. 1536) and Sec.  
402.16 of title 50, Code of Federal Regulations (or a successor 
regulation)) with respect to'' species listings and critical habitat 
designations. That ``notwithstanding any other provision of law'' 
provision does not change the meaning of the underlying law, and 
therefore does not disturb the preexisting ESA authorities outside its 
specific instructions. The Omnibus Act's ``notwithstanding'' language 
disavows other provisions of law to create an independent, self-
executing limitation that is self-contained and not preemptive of the 
Service's general authority under the ESA. The Act's 
``notwithstanding'' language signifies that no matter how a court may 
read the ESA or section 7 requirements in general, no consultation is 
required on forest plans in the circumstances specifically addressed by 
the legislation. The Act therefore does not preclude the broader 
administrative adjustment of the underlying regulations proposed here, 
particularly given the sweeping delegation of rulemaking authority that 
the ESA affords to the Services as a general matter. See Sweet Home 
Chapter of Communities for a Greater Oregon, 515 U.S. at 708 (``When 
Congress has entrusted the Secretary with broad discretion, we are 
especially reluctant to substitute our views of wise policy for 
his.'').
    Viewing the Omnibus Act through the familiar rules of statutory 
construction, it is clear that nothing is to be added to what the 
Omnibus Act's text states or reasonably implies (casus omissus pro 
omisso habendus est). That is, a matter not covered is to be treated as 
not covered. As the Fifth Circuit said with respect to similar safe-
harbor amendments to the Migratory Bird Treaty Act, ``[w]hether 
Congress deliberately avoided more broadly changing the [statute] or 
simply chose to address a discrete problem, the most that can be said 
is that Congress did no more than the plain text of the amendment 
means.'' United States v. Citgo, 801 F.3d 477, 491 (5th Cir. 2015); see 
id. (``A single carve-out from the law cannot mean that the entire 
coverage of the MBTA was implicitly and hugely expanded.'').
    Third, a permanent resolution also aligns with the government's 
longstanding position that the duty to consult under section 7 is 
limited to affirmative agency actions and is not applicable to 
completed actions or agency inaction. The United States' 2016 Petition 
for Certiorari in Cottonwood clearly and unequivocally stated that 
``the Ninth Circuit's holding that federal agencies must reinitiate 
consultation pursuant to section 7 of the ESA on a completed agency 
action at the programmatic level because the agency retains discretion 
to authorize site-specific projects governed by the programmatic action 
has no basis in the ESA or its implementing regulations.'' Petition for 
Writ of Certiorari, United States Forest Service v. Cottonwood 
Environmental Law Center, No. 15-1387 (June 2016). As previously noted, 
unless expressly stated otherwise, completed land management plans do 
not result in any immediate on-the-ground effects, and all relevant 
information is

[[Page 2377]]

considered during the separate section 7 consultations that occur for 
subsequent project activities if those actions may affect listed 
species or critical habitat. The Forest Service's current planning 
regulations confirm that ``[a] plan does not authorize projects or 
activities or commit the Forest Service to take action.'' 36 CFR 
219.2(b)(2).
    Further, plan level consultation will of course continue to occur 
when the FS proposes to amend or revise a plan. Cyclical or periodic 
consultation aligns with other Ninth Circuit caselaw such as California 
Sportfishing Protection Alliance v. FERC, 472 F.3d 593, 595, 598 (9th 
Cir. 2006), where the Circuit reviewed a challenge to the Federal 
Energy Regulatory Commission's decision not to initiate consultation 
over the ongoing operation of a private hydroelectric plant operated 
under a 30-year license. In that case, FERC had the discretion to 
institute proceedings to amend an existing license, but the court 
emphasized, that ``[t]he ESA and the applicable regulations . . . 
mandate consultation with [the consulting agency] only before an agency 
takes some affirmative agency action, such as issuing a license.'' The 
court concluded that ``the agency action of granting a permit is 
complete,'' and that the mere unexercised discretion to modify the 
license for the benefit of listed species did not constitute ``action'' 
triggering a duty to initiate consultation.
    A permanent rule addressing programmatic plan consultation will 
promote predictability for agencies and the public and allow the FS and 
BLM to efficiently accomplish their species conservation objectives and 
land management missions.

Public Comments

    The proposed amendments would adjust reinitiation practices 
addressing new information supplementing the Services' rulemaking 
governing reinitiation for critical habitat designations and species 
listings which was the subject of both legislation and administrative 
rulemaking. These proposed procedural adjustments provide clarity and 
transparency about how the Secretaries intend to exercise their 
discretion regarding evaluation of new information concerning land 
management plans under section 7(a)(2) of the ESA. As the ESA does not 
provide a specific public comment period for issuance of inter-agency 
consultation regulations, generally speaking, any otherwise applicable 
notice requirement will be satisfied if it affords interested persons a 
reasonable and meaningful opportunity to participate in the rulemaking 
process. The 30-day comment period provides such an opportunity given 
the proposed rule's limited scope and the other recent rulemaking 
pertaining to reinitiation practices.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to https://www.regulations.gov before 11:59 p.m. (Eastern 
Time) on the date specified in DATES. We will not consider mailed 
comments that are not postmarked by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. 
Comments and materials we receive, as well as supporting documentation 
we used in preparing this proposed rule, will be available for public 
inspection on https://www.regulations.gov.

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 will 
review all significant rules. OIRA has determined that this proposed 
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 an Executive Order 13771 ``other'' action.

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 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. Because this 
rulemaking action specifically affects only Federal agencies, no 
external entities, including any small businesses, small organizations, 
or small governments, will experience any economic impacts from this 
rule.

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. This proposed 
rule applies exclusively to Federal agencies. 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.

[[Page 2378]]

    (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 obligations 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 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 factors concerning 
reinitiation of consultation for Federal agencies under the Endangered 
Species 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 would clarify responsibilities for reinitiation 
of consultation under the Endangered Species Act. This proposed rule 
would not unduly burden the judicial system and meets the applicable 
standards provided in sections 3(a) and 3(b)(2) of Executive Order 
12988.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior's manual at 512 DM 2, and the Department of Commerce (DOC) 
Tribal Consultation and Coordination Policy (May 21, 2013), DOC 
Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA 
Administrative Order (NAO) 218-8 (April 2012), we are considering 
possible effects of this proposed rule on federally recognized Indian 
Tribes. The Services have reached a preliminary conclusion that the 
proposed changes to these implementing regulations are general in 
nature and do not directly affect specific species or Tribal lands. 
These proposed regulations clarify the processes for reinitiation of 
consultation and directly affect only the Services and Federal land-
managing agencies. Therefore, we conclude that these regulations do not 
have ``Tribal implications'' under section 1(a) of E.O. 13175, and, 
formal government-to-government consultation is not required by the 
Executive Order and related policies of the Departments of the Interior 
and Commerce. We will continue to collaborate with Tribes on issues 
related to federally listed species and their habitats and work with 
them as we implement the provisions of the Act. See Joint Secretarial 
Order 3206 (``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'', June 5, 1997).

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information that require approval by the OMB under the Paperwork 
Reduction Act. This proposed rule will not impose recordkeeping or 
reporting requirements on State, local, or Tribal governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We are analyzing this proposed regulation in accordance with the 
criteria of the National Environmental Policy Act (NEPA), the 
Department of the Interior regulations on Implementation of the 
National Environmental Policy Act (43 CFR 46.10-46.450), the Department 
of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-
6A, and the NOAA Companion Manual (CM), ``Policy and Procedures for 
Compliance with the National Environmental Policy Act and Related 
Authorities'' (effective January 13, 2017).
    As a result, we anticipate that the categorical exclusion found at 
43 CFR 46.210(i) applies to the proposed regulation changes. At 43 CFR 
46.210(i), the Department of the Interior has found that the following 
categories of actions would not individually or cumulatively have a 
significant effect on the human environment and are, therefore, 
categorically excluded from the requirement for completion of an 
environmental assessment or environmental impact statement: ``Policies, 
directives, regulations, and guidelines: that are of an administrative, 
financial, legal, technical, or procedural nature.'' NOAA's NEPA 
procedures include a similar categorical exclusion for ``preparation of 
policy directives, rules, regulations, and guidelines of an 
administrative, financial, legal, technical, or procedural nature.'' 
(Categorical Exclusion G7, at CM Appendix E).
    We are continuing to consider the extent to which this proposed 
regulation may have a significant impact on the human environment or 
fall within one of the categorical exclusions. We invite the public to 
comment on these or any other aspects of NEPA compliance that may be 
needed for these revisions. We will comply 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, and the Administrator of OIRA has not otherwise designated it 
as a significant energy action. Accordingly, 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 believe that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. 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 
of the rule that are not clearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

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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

    For the reasons set out in the preamble, we propose to amend 
subpart 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.  402.16 by revising paragraph (b) to read as follows:


Sec.  402.16  Reinitiation of consultation.

* * * * *
    (b) After an agency approves a land management plan prepared 
pursuant to 43 U.S.C. 1712 or 16 U.S.C. 1604, the agency need not 
reinitiate consultation on that plan upon:
    (1) The 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; or
    (2) The receipt of new information revealing effects of the action 
that may affect listed species or critical habitat in a manner or to an 
extent not previously considered, provided that any authorized actions 
for which the new information is relevant will be addressed through a 
separate action-specific consultation.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.
Christopher Wayne Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 2021-00366 Filed 1-11-21; 8:45 am]
BILLING CODE 4333-15-P