[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 39921-39925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18919]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
National Marine Fisheries Service

50 CFR Part 402

RIN 1018-AD32


Joint Counterpart Endangered Species Act Section 7 Consultation 
Regulations

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

ACTION: Proposed rule.

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SUMMARY: With the concurrence of the U.S. Department of Agriculture, 
Forest Service (FS) and the Department of the Interior, Bureau of Land 
Management (BLM), the U.S. Fish and Wildlife Service (FWS) and the 
National Oceanic and Atmospheric Administration, National Marine 
Fisheries Service (NMFS) propose to promulgate counterpart section 7 
consultation regulations (50 CFR 402) under the Endangered Species Act 
of 1973 to establish an alternate consultation process. These 
regulations supplement the more general consultation regulations in 
Part 402 to provide for a more effective and efficient process to meet 
the specific needs of BLM and FS programs.

DATES: Comments on this proposal must be received by October 3, 1995, 
in order to be considered in the final decision on this proposal.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Chief, Division of Endangered Species, U.S. Fish and 
Wildlife Service, 1849 C Street, N.W., Washington, DC 20240. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours in Room 452, 4401 North 
Fairfax Drive, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT:
E. LaVerne Smith, Chief, Division of Endangered Species, at the above 
address (703/358-2171; facsimile 703/358-1735) or Robert C. Ziobro, 
Endangered Species Division, NMFS, 1335 East-West Highway, Silver 
Spring, MD 20910 (301/713-1401 facsimile 301/713-0376).

SUPPLEMENTARY INFORMATION:

Background

    These proposed joint counterpart Endangered Species Act (ESA) 
consultations procedures govern ESA section 7(a) consultation for FS 
and BLM. The procedures differ from the existing procedures in part 402 
subparts A and B in that they encourage ESA consultation well before 
project-level decisions are made and provide a framework for 
consultation on program-level or ecosystem-level decisions, as opposed 
to project-level decisions. This early consultation at the program-
level facilitates future consultation at the project-level and these 
procedures describe how that streamlining is accomplished. In addition, 
while the regulations at part 402 subparts A and B are silent as to 
whether ongoing actions can continue during consultations, these 
regulations expressly address that issue and specify the measures the 
agencies will take regarding ongoing actions once ESA consultation at 
the project-level becomes mandatory.
    Under these procedures, FS and BLM and the appropriate consulting 
Service (either FWS or NMFS) are required to enter into a consultation 
agreement, unless they have already done so for that species or 
decision, when (1) a new species is proposed for listing or is listed; 
(2) critical habitat is proposed for designation or is designated; (3) 
a revision or amendment of a land planning document is formally 
announced; or (4) FS, BLM or one of the Services requests a 
consultation agreement. In this agreement, the agencies choose how they 
will conduct program-level and project-level consultation. That is, 
they decide whether project-level (which the procedures call non-site-
specific) consultation and when project-level (which these procedures 
call site-specific consultation) consultation will occur. The agreement 
sets a schedule for the chosen manner of consultation and all 
subsequent actions related to ongoing activities.
    The objective of non-site specific consultation is to identify 
standards and guidelines or parameters that then can be applied to 
site-specific consultations. Where the parameters are identified as 
adequate to avoid adverse effects to the listed species in the non-
site-specific consultation by the appropriate Service, the parameters 
are then used to facilitate site-specific consultation. For those 
actions that are in conformance with adequate parameters, consultations 
is concluded when FS and BLM notify the appropriate Service of the 
conforming action and provide the Service with the basis for that 
decision. Where no adequate parameters have been identified in a non-
site-specific consultation, the action agencies are required to conduct 
consultation/conference pursuant to sections 402.10 and/or 402.14 for 
any project-level decisions.
    The procedures address the measures the agencies are to take with 
respect to ongoing actions when consultation becomes mandatory under 
section 402.14. The procedures require the identification of all 
ongoing actions that may affect the listed species and an initial 
determination of which actions represent an imminent threat to the 
listed species. The action agencies are required to take all possible 
steps to halt or modify these imminent threat actions. The action 
agencies are required then to identify all actions that are likely to 
adversely affect the species in question and to review whether to take 
steps to halt or modify those actions as well. All other ongoing 
actions that are not halted under these procedures may go forward 
during consultation. Provisions for counterpart section 7 consultation 
procedures are set forth in section 402.04. Such regulations supersede 
consultation regulations at 50 CFR 402, subpart B.
    As part of their land management planning processes, the FS 
prepares Land and Resource Management Plans and the BLM prepares 
Resource Management Plans. Plans identify general land-use purposes or 
allocations; future conditions that are desired on specific lands; 
goals and 

[[Page 39922]]
objectives for resource conditions on specific lands; and standards, 
guidelines, or other mechanisms that govern activities conducted on 
lands managed by these agencies in the future. Plans provide the 
general framework under which those site specific activities are 
developed over a period of several years.
    Because Plans do not normally prescribe specific land management 
activities, there is a significant level of uncertainty associated with 
the environmental consequences of Plans. This uncertainty is a 
particular problem when the BLM or FS try to fulfill their obligation 
to consult with the FWS and/or NMFS and assure that their activities 
are not likely to jeopardize the continued existence of threatened or 
endangered species since site-specific details are not often known when 
consultations are initiated. Because Plans are operational for a period 
covering several years, new species may be added to the list of 
threatened and endangered species, or significant new information may 
become available and re-evaluation of the effects of Plans on listed, 
proposed, or Category 1 species, and proposed or listed critical 
habitat may be required.
    ESA section 7(a)(2) requires that ``each Federal agency shall, in 
consultation with and with the assistance of the Secretary [of the 
Interior or Commerce] insure that any action authorized, funded, or 
carried out by such agency * * * is not likely to jeopardize the 
continued existence of any endangered species or threatened species or 
result in the destruction or adverse modification of [critical] habitat 
of such species.'' 16 U.S.C. 1536(a)(2). ESA section 7(a)(4) requires 
that ``[e]ach Federal agency shall confer * * * on any agency action 
which is likely to jeopardize the continued existence of any species 
proposed to be listed * * * or result in the destruction or adverse 
modification of [proposed] critical habitat'' for that species. 16 
U.S.C. 1536(a)(4). The manner or timing of consultation and 
conferencing is not prescribed by statute.
    The ESA consultation regulations at section 402.14 provide that ESA 
consultation is required for any Federal action that may affect a 
listed species or critical habitat. These counterpart regulations 
encourage consultation before there is an action that may affect a 
species. Section 402.10 of the regulations provides that conferencing 
is required for any action that is likely to jeopardize the continued 
existence of any proposed species or result in the adverse modification 
of proposed critical habitat. These regulations encourage conferencing 
before an action is likely to jeopardize a proposed species or result 
in adverse modification of proposed critical habitat. Thus, the use of 
the terms ``consultation'' and ``conferencing'' in these regulations is 
not always equivalent to their use in the regulations at part 402 
subparts A and B.
    Sections 402.22 and 402.23 of these counterpart regulations 
facilitate and promote early consultation before it is mandatory under 
the ESA, as determined in the regulations at section 402.14, and 
establish a framework within which non-site-specific consultation may 
be conducted. Non-site-specific actions, as defined by these 
regulations, shall have no direct effect on listed species or critical 
habitat. Thus, the decision whether to engage in non-site-specific 
consultation is discretionary, that is, not required under the statute 
as interpreted by the part 402 subpart A and B regulations. Since non-
site-specific actions themselves have no direct effect on the species, 
the written statement concluding non-site-specific consultation cannot 
provide definitive findings of effect and ``jeopardy'' as to the 
subject of consultation as can be provided in site-specific 
consultation.
    Even though non-site-specific consultation is discretionary and 
cannot provide the definitive ``jeopardy/no-jeopardy'' determination 
that results from site-specific consultation, Federal agencies may 
elect to engage in non-site-specific consultation or conferencing even 
when neither consultation nor conferencing are mandatory, as determined 
by sections 402.10 and 402.14, to facilitate more efficient compliance 
with their ESA duty. Such non-site-specific consultation may provide an 
efficient anticipatory step to, or may be an integral part of, 
mandatory ESA consultation compliance. It can provide an efficient 
means of reviewing potential impacts to listed species on a broad scale 
and lead to the identification of parameters that address the needs of 
species throughout all or a portion of their range or within the 
geographic scope of the non-site specific consultation. These 
parameters may then be applied in site-specific consultations and 
conferences, thereby streamlining the process of complying with the ESA 
consultation requirements for site-specific actions that may affect 
listed species or critical habitat or jeopardize proposed species or 
adversely modify or destroy proposed critical habitat. Section 402.22 
of these counterpart regulations provides for a consultation agreement 
to facilitate this process and section 402.23 provides a framework for 
this discretionary non-site-specific consultation.
    Section 402.24 addresses consultation as it relates to site-
specific actions, where consultation is mandatory as defined by the 
regulations in section 402.14. Section 402.24(a) specifies how 
mandatory site-specific consultation shall be conducted where relevant 
parameters have been identified and deemed sufficient pursuant to a 
relevant non-site-specific consultation and an action is in conformance 
with those parameters. Where adequate parameters have not been 
developed or an action is not in conformance with those parameters, 
section 402.24(a) provides that consultation shall proceed as described 
in the part 402 subparts A and B regulations.
    Once consultation becomes mandatory at the project level, certain 
ongoing actions may need to be suspended until the conclusion of 
consultation to insure the integrity of the consultation process. 
Sections 402.24(b), (c), and (d) provide a process for reviewing, and 
determining whether to halt, ongoing site-specific actions for which 
parameters have not been developed, once ESA consultation at the 
project level becomes mandatory. Since site-specific consultation at 
the non-site-specific level is discretionary, not mandatory, no similar 
provision governing review of ongoing actions is required during non-
site-specific consultation.
    Sections 402.24 (c) and (d) also provide that other actions 
associated with actions that may cause imminent threats to or are 
likely to adversely affect listed species or its critical habitat may 
need to be suspended as well during consultation. ESA consultation on 
imminent threat and likely to adversely affect actions (unlike ESA 
consultation on actions that are not likely to adversely affect listed 
species) have a reasonable potential to result in the identification of 
reasonable and prudent alternatives to the action in consultation. In 
such circumstances, section 7(d) of the ESA also prohibits the action 
agency from undertaking any irreversible and irretrievable commitments 
of resources associated with such actions that would foreclose the 
formulation or implementation of reasonable and prudent alternative.

Required Determinations

    This rule was reviewed under Executive Order 12866. The Fish and 
Wildlife Service certifies that the proposed revisions to 50 CFR 402 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 

[[Page 39923]]
U.S.C. 601 et seq.). Significant adverse economic impacts are not 
expected as a result of the proposed rule because: (1) the rule is 
intended to reduce or eliminate altogether the consultation 
requirements on numerous Federal actions under the ESA with respect to 
listed and proposed species; and (2) the rule amends 50 CFR 402, 
resulting in consultation efficiencies that will effectively reduce 
potential economic burdens associated with consultation requirements. 
Also, no direct costs, enforcement costs, information collection, or 
recordkeeping requirements are required by this proposed rule beyond 
those already required by existing 50 CFR 402 regulations, nor does the 
proposed rule contain any recordkeeping requirements as defined by the 
Paperwork Reduction Act of 1980. Further, this rule does not require a 
Federalism assessment under Executive Order 12612 because it would have 
no significant Federalism effects as described in the order. Finally, 
the Service has determined that the proposed regulation does not 
require the preparation of a Takings Implication Assessment under the 
requirements of Executive Order 12630, ``Government Actions and 
Interference with Constitutionally Protected Property Rights.'' These 
counterpart regulations pertain solely to consultation coordination 
procedures and the procedures have no impact on personal property 
rights.

Author

    The primary authors of this proposal are Jay Slack, Department of 
the Interior, Fish and Wildlife Service, Division of Endangered 
Species, Arlington, Virginia 22203 (703/358-2106); Jim Hoff, Department 
of the Interior, Bureau of Land Management, Washington, D.C. 20240 
(202/452-5045); Harv Forsgren, Department of Agriculture, Forest 
Service, Washington, D.C. 20090 (202/205-0830); Bob Ziobro, Department 
of commerce, National Oceanic and Atmospheric Administration, National 
Marine Fisheries Service, Silver Spring, Maryland 20910 (301/713-1401).

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Proposed Regulation Promulgation

    Accordingly, the FWS and NMFS hereby propose to amend part 402, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 402--[AMENDED]

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

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

    2. Revise Sec. 402.04 to read as follows:


Sec. 402.04  Counterpart regulations.

    The consultation procedures set forth in this part may be 
superseded for a particular Federal agency by joint counterpart 
regulations issued by, the Fish and Wildlife Service, and the National 
Marine Fisheries Service with the written concurrence of the action 
agency published with that counterpart regulation. Such counterpart 
regulations shall be published in the Federal Register in proposed form 
and shall be subject to public comment for at least 60 days before 
final rules are published. Counterpart regulations appear in subpart C 
of this part.
    3. Add a new subpart C--Counterpart Regulations and sections 402.20 
to 402.29 to read as follows:


Sec. 402.20  Scope.

    The counterpart regulations in this subpart supplement and, where 
applicable, set forth an alternative to the Endangered Species Act 
(ESA) consultation regulations found in subparts A and B of this part 
for the Forest Service (FS), Department of Agriculture and the Bureau 
of Land Management (BLM), Department of the Interior.
    (a) Sections 402.22 and 402.23 of the counterpart regulations in 
this subpart address consultation agreements and non-site-specific 
consultations, respectively. Both facilitate ESA consideration and 
coordination sooner than is required by subpart A and B of this part. 
Section 402.22 establishes a process by which FS and BLM, in 
coordination with the Fish and Wildlife Service (FWS) and/or the 
National Marine Fisheries Service (NMFS), determine whether and in what 
manner to engage in non-site-specific consultations related to their 
land management planning efforts pursuant to, inter alia, the 
Endangered Species Act, 16 U.S.C. 1531, et seq., the National Forest 
Management Act of 1976, 16 U.S.C. 1604 and 36 CFR 219, the Federal Land 
and Policy Management Act of 1976, 43 U.S.C. 1701-1784 and the Oregon 
and California Lands Act, 43 U.S.C 1181a. Section 402.23 provides a 
framework for non-site-specific ESA consultation which may result in 
the identification of protective parameters for listed species and 
critical habitat.
    (b) Section 402.24 addresses site-specific consultations and 
conferences. Section 403.24(a) provides an alternative to subparts A 
and B of this part governing how ongoing and proposed site-specific 
actions shall be conducted where sufficient parameters have been 
identified in a relevant non-site-specific consultation. Sections 
402.24(b), (c), and (d) provide a process for reviewing ongoing site-
specific actions when consultation becomes mandatory and no sufficient 
parameters have been identified.


Sec. 402.21  Definitions.

    Many of the terms used in the regulations in this subpart are 
defined in section 402.02. In addition, the terms defined in this 
section are applicable to this subpart.
    (a) Action agency means either the FS or the BLM.
    (b) Consultation means all oral and written communications between 
the Action Agency and the Service designed to facilitate that Action 
Agency's compliance with the ESA. Consultation includes, but is not 
limited to, early, informal and formal consultation under the 
regulations in subpart B of this part, as well as early non-site-
specific consultation as provided for in Secs. 402.22 and 402.23;
    (1) Site-specific consultation means any consultation the subject 
of which is a particular site-specific action or group of site-specific 
actions that may affect listed species or critical habitat; and
    (2) Non-site-specific consultation means any consultation 
undertaken the subject of which is something other than a particular 
site-specific action or group of site-specific actions.
    (c) Is likely to adversely affect means the appropriate conclusion 
if an adverse effect to listed species or critical habitat may occur as 
a direct or indirect result of the proposed action or its interrelated 
or interdependent actions. In the event the overall effect of the 
proposed action is beneficial to the listed species or critical 
habitat, but also likely to cause some adverse effects, then the 
proposed action ``is likely to adversely affect'' the listed species or 
critical habitat. An ``is likely to adversely affect'' determination 
requires formal consultation.
    (d) Is not likely to adversely affect means the appropriate 
conclusion when effects on the species or critical habitat are expected 
to be beneficial, discountable, or insignificant. Beneficial effects 
have contemporaneous positive effects without any adverse effects to 
the species or habitat. Insignificant effects relate to the size of the 
impact (and should not reach the scale where take occurs, as defined in 
16 U.S.C. 1532(19) and 50 CFR 17.3). Discountable effects are those 
extremely unlikely to occur. Based on best judgment, a person would not 
be able to meaningfully measure, detect, or evaluate insignificant 
effects or expect discountable effects to occur.

[[Page 39924]]

    (e) Site-specific action means any FS or BLM action or group of 
actions (as defined in Sec. 402.02) that has physical, biological, or 
chemical effects on the environment;
    (1) Any other FS and BLM action is a non-site-specific action;
    (2) ongoing site-specific action means a site-specific action that 
is being executed or one for which a project level decision has been 
made or that otherwise has been authorized by the Action Agency but has 
not yet been completed at the time consultation is initiated (e.g., 
actions that were authorized, funded, or initiated prior to the 
relevant triggering event and in which there is discretionary Federal 
involvement or control); and
    (3) Proposed site-specific action means a site-specific action that 
has not yet been finally authorized by the Action Agency.
Sec. 402.22  Consultation/conference agreement.

    (a) Commencement of discussions. (1) Unless the event was 
contemplated and addressed in a prior consultation/conference agreement 
in accordance with this section, the Action Agency and Service shall 
discuss and determine the most efficient method for fulfilling the 
purposes of the ESA consistent with the regulations in this subpart , 
as soon as practicable after any of the following events:
    (i) Publication of a proposed rule to list a species or to 
designate critical habitat;
    (ii) Listing of a species or designation of critical habitat;
    (iii) Formal proposal of a new, or amendment or revision of an 
existing, BLM or FS land management planning decision, including but 
not limited to the proposal of a land and resource management plan, 
resource management plan, or a protective initiative, but not including 
instructional memoranda, policies, directives or revisions to agency 
manuals; or
    (iv) When, at any time, an Action Agency or the Service requests 
such discussions.
    (2) Where any of these events affects more than one administrative 
unit of the Action Agency or the Service, these discussions shall be 
conducted jointly by, or on behalf of, all such units.
    (b) Consultation/conference agreement. Unless a different time 
frame is mutually agreed to by the Action Agency and the Service, the 
results of these discussions shall be embodied in a document 
(hereinafter ``consultation/conference agreement''), to be completed 
within 45 days of the events listed in paragraph (a) of this section.
    (1) The consultation/conference agreement shall:
    (i) Identify the land management planning documents relevant to the 
present or anticipated need for ESA consultation/conference;
    (ii) Where a land management planning document incorporates 
authorization for a relevant site-specific activity, identify the 
portions of the document that embody land management planning decisions 
and those that embody the site-specific decisions that must be the 
subject of site-specific consultation under subparts A and B of this 
part, as supplemented by Sec. 402.24;
    (iii) Determine whether and in what manner non-site-specific 
consultation will be undertaken, including a list of the species that 
will be considered and a description of the geographic area that is to 
be encompassed by the consultation, and set forth a preliminary 
schedule for and description of each major step required for each 
selected level of consultation;
    (iv) Provide a description of how ESA requirements for applicant 
participation, if any, will be fulfilled;
    (v) Establish any necessary and appropriate timeframes for 
completing any review of ongoing site-specific actions under 
Sec. 402.24, and
    (vi) If practicable within the period set forth in paragraph (b) of 
this section, incorporate parameters that will be used in making a 
determination for listed species of ``not likely to adversely affect'' 
or ``imminent threat,'' or for developing any appropriate standards for 
proposed or other species, in future site-specific consultation and 
conferences under the regulations in this subpart related to the same 
species and same geographic areas covered by the consultation/
conference agreement.
    (2) The consultation agreement may reflect consideration of a 
number of factors, including the types, impacts, and numbers of ongoing 
actions; the biology, ecology, distribution, and abundance of the 
relevant Category 1 candidate, proposed or listed species and proposed 
or designated critical habitat; human resource consideration; the 
timing of the consultation; National Environmental Policy Act, 43 
U.S.C. 4321-4370(d), requirements for the Action Agency; data 
collection requirements; and existing and forthcoming protective 
strategies for the listed species.
    (3) If the representatives of the Action Agency and the Service in 
the discussions required in paragraph (a) of this section cannot agree 
on the terms of the consultation/conference agreement, agreement shall 
promptly be reached jointly by the heads of the applicable agencies, or 
their designees.
    (4) The time frames for development of, and the terms of, the 
consultation/conference agreement may be modified or deviated from upon 
mutual written agreement of the Action Agency and the Service.


Sec. 402.23  Non-site-specific consultation/conference.
    (a) Action agency responsibilities. If the agencies elect to 
conduct non-site-specific consultation/conference, the Action Agency 
shall submit to the Service, by the date set forth in the consultation/
conference agreement, or the date as modified by mutual agreement, the 
following information and documents:
    (1) A copy of all documents, unless the document is already in the 
possession of the Service, deemed by the Action Agency to be relevant 
to the non-site-specific consultation/conference, including but not 
limited to, scientific documents and data, reports, draft environmental 
impact statements or assessments, forest plans, and resource management 
plans, or strategies, including initiatives designed to address the 
needs of the species identified in the consultation/conference 
agreement, which shall be the best scientific and commercial data 
available at the time of submission of the information required in this 
paragraph;
    (2) A written statement of how any non-site-specific level 
decisions interact, if at all, with decisions at the site-specific 
level and with the species identified in the consultation/conference 
agreement and proposed or designated critical habitat of concern;
    (3) Identification of any parameters such that site-specific 
actions consistent with those parameters are not likely to adversely 
affect listed species and/or are not likely to jeopardize the continued 
existence of proposed species or adversely modify or destroy critical 
habitat.
    (b) Service responsibilities. Within 135 days of receiving the 
information required under paragraph (a) of this section, the Service 
shall:
    (1) Issue a written statement detailing whether the parameters 
identified pursuant to paragraph (a)(3) of this section provide 
appropriate parameters such that site-specific actions consistent with 
those parameters are not likely to adversely affect listed species or 
critical habitat and/or are not likely to jeopardize and continued 
existence of 

[[Page 39925]]
proposed species or adversely modify or destroy proposed critical 
habitat; or
    (2) If either there is no existing or proposed decision document, 
or the parameters identified in paragraph (a)(3) of this section are 
determined to be inadequate, provide a description of parameters 
sufficient under paragraph (a)(3) of this section, to the extent 
possible and to the degree permitted by the information provided by the 
Action Agency.


Sec. 402.24  Site-specific consultation/conference; ongoing site-
specific actions during consultation.

    (a) Site-specific consultation/conference. For site-specific 
actions that conform with parameters identified as sufficient under 
Sec. 402.23, the Action Agency will provide, 30 days prior to the 
decision document for proposed actions, or pursuant to the time frames 
established in a consultation/conference agreement for ongoing actions, 
a written notification to the Service of the Action Agency 
determination and rationale that the action is in conformance with 
relevant parameters. This notification ends consultation under section 
7(a)(2) of the ESA. Completion of consultation fulfills the Action 
Agency's responsibility to comply with section 7(d) of the ESA. If the 
Service disagrees with the Action Agency's determination, it may 
request reinitiation of informal or formal consultation as appropriate, 
under this part and provide a rationale for its request. Any ongoing or 
proposed site-specific action that is not in conformance with 
parameters identified under Sec. 402.23 is subject to the consultation 
requirements under subparts A and B of this part, as supplemented by 
this section.
    (b) Identification of ongoing activities. Pursuant to the 
timeframes established in the relevant consultation/conference 
agreement, the Action Agency will provide the Service with a written 
list of all ongoing site-specific actions relevant to the triggering 
event that may affect a listed species or its critical habitat. Such 
ongoing site-specific actions are ones that were authorized, funded, or 
initiated prior to the relevant triggering event and in which there is 
discretionary Federal involvement or control. Actions identified on the 
written list may continue under the regulations in this subpart during 
consultation without interruption unless suspended pursuant to 
paragraphs (c) or (d) of this section. The Action Agency should provide 
notice to affected parties consistent with appropriate agency 
procedures.
    (c) Imminent threats. Pursuant to the timeframes establishment in 
the relevant consultation/conference agreement, the Action Agency and 
the Service shall review the actions identified pursuant to paragraph 
(b) of this section. For any action that both the Service and Action 
Agency agree may present an imminent threat to a listed species or its 
critical habitat, the Action Agency will, as soon as practicable and 
consistent with its legal authorities and obligations, initiate the 
appropriate administrative process to review whether the action needs 
to be modified, altered, or, if necessary, terminated. The Action 
Agency also shall initiate formal consultation/conference under 
Secs. 402.10 and 402.14 as appropriate. When it is consistent with its 
legal authorities and obligations, the Action Agency should suspend any 
such action and any associated irretrievable or irreversible 
commitments of resources that would foreclose the formulation or 
implementation of reasonable and prudent alternatives under section 
7(d) of the ESA, until it is determined that the action is not likely 
to jeopardize the continued existence of a listed species or result in 
the adverse modification or destruction of its critical habitat.
    (d) Likely to adversely affect actions. Pursuant to the timeframes 
established in the relevant consultation/conference agreement, the 
Action Agency shall review the actions identified pursuant to paragraph 
(b) of this section, except for those already identified as imminent 
threats under paragraph (c) of this section, and identify for the 
Service those activities that are likely to adversely affect listed 
species or critical habitat. For any action so identified by the Action 
Agency, or for which the Service provides a written objection to its 
continuance and the rationale therefore, the Action Agency will, as 
soon as practicable and consistent with its legal authorities and 
obligations, initiate the appropriate administrative process to review 
whether the action, and any associated irretrievable or irreversible 
commitments of resources that would foreclose the formulation or 
implementation of reasonable and prudent alternatives under section 
7(d) of the ESA, needs to be modified, altered, or, if necessary, 
terminated. The Action Agency also shall initiate formal consultation/
conference under Secs. 402.10 and/or 402.14.


Sec. 402.25  Timeframes.
    All timeframes set forth in Secs. 402.23 and 402.24 of this subpart 
may be modified by mutual agreement.


Sec. 402.26   Applicability.

    The regulations in this subpart are applicable to the FS and BLM 
only where an event identified in Sec. 402.22(a) occurs after [the 
effective date of the final rule].


Secs. 402.27-402.29   [Reserved]

    Dated: July 7, 1995.
George Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
    Dated: June 30, 1995.
James R. Lyons,
Undersecretary, Natural Resources Environment.
    Dated: July 3, 1995.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    Dated: July 6, 1995.
Bob Armstrong,
Assistant Secretary for Land and Minerals Management.
[FR Doc. 95-18919 Filed 8-3-95; 8:45 am]
BILLING CODE 4310-55-M