[Federal Register Volume 68, Number 235 (Monday, December 8, 2003)]
[Rules and Regulations]
[Pages 68254-68265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30393]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

RIN 1018-AJ02

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. 030506115-3298-02]
RIN 0648-AR05


Joint Counterpart Endangered Species Act Section 7 Consultation 
Regulations

AGENCIES: U.S. Fish and Wildlife Service, Interior; Bureau of Land 
Management, Interior; National Park Service, Interior; Bureau of Indian 
Affairs, Interior; Forest Service, Agriculture; National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Final rule.

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SUMMARY: This final rule codifies joint counterpart regulations for 
consultation under section 7 of the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) (ESA), to streamline consultation on 
proposed projects that support the National Fire Plan (NFP), an 
interagency strategy approved in 2000 to reduce risks of catastrophic 
wildland fires and restore fire-adapted ecosystems. These counterpart 
regulations were developed, as part of the President's Healthy Forests 
Initiative announced in August 2002, by the U.S. Department of the 
Interior's Fish and Wildlife Service (FWS) and the U.S. Department of 
Commerce's National Oceanic and Atmospheric Administration, National 
Marine Fisheries Service (NMFS) (singly or jointly, Service), in 
cooperation with the U.S. Department of Agriculture's Forest Service 
(FS) and the Department of

[[Page 68255]]

Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management 
(BLM), and National Park Service (NPS). These counterpart regulations, 
authorized in general at 50 CFR 402.04, provide an optional alternative 
to the existing section 7 consultation process described in 50 CFR part 
402, subparts A and B. The counterpart regulations complement the 
general consultation regulations in part 402 by providing an 
alternative process for completing section 7 consultation for agency 
projects that authorize, fund, or carry out actions that support the 
NFP. The alternative consultation process contained in these 
counterpart regulations eliminates the need to conduct informal 
consultation and eliminates the requirement to obtain written 
concurrence from the Service for those NFP actions that the Action 
Agency determines are ``not likely to adversely affect'' (NLAA) any 
listed species or designated critical habitat.

DATES: This rule is effective on January 7, 2004.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Division of 
Consultation, Habitat Conservation Planning, Recovery and State Grants, 
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, 
Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Chief, Division of 
Consultation, Habitat Conservation Planning, Recovery and State Grants, 
at the above address (Telephone 703/358-2171, Facsimile 703/358-1735) 
or Phil Williams, Chief, Endangered Species Division, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910 (301/713-1401; facsimile 301/713-
0376).

SUPPLEMENTARY INFORMATION:

Background

Implementation of National Fire Plan

    In response to several years of catastrophic wildland fires 
throughout the United States culminating in the particularly severe 
fire season in 2000, when over 6.5 million acres of wildland areas 
burned, President Clinton directed the Departments of the Interior and 
Agriculture to develop a report outlining a new approach to managing 
wildland fires and restoring fire-adapted ecosystems. The report, 
entitled Managing the Impact of Wildfires on Communities and the 
Environment, was issued September 8, 2000. This report set forth ways 
to reduce the impacts of fires on rural communities, a short-term plan 
for rehabilitation of fire-damaged ecosystems, and ways to limit the 
introduction of invasive species and address natural restoration 
processes. The report, and the accompanying budget requests, 
strategies, plans, and direction, have become known as the NFP. The NFP 
is intended to reduce risk to communities and natural resources from 
wildland fires through rehabilitation, restoration and maintenance of 
fire-adapted ecosystems, and by the reduction of accumulated fuels or 
highly combustible fuels on forests, woodlands, grasslands, and 
rangelands.
    In August 2002, during another severe wildland fire season in which 
over 7.1 million acres of wildlands burned, President Bush announced 
the Healthy Forests Initiative. The initiative was intended to 
accelerate implementation of the fuels reduction and ecosystem 
restoration goals of the NFP in order to minimize the damage caused by 
catastrophic wildfires by reducing unnecessary regulatory obstacles 
that have at times delayed and frustrated active land management 
activities. Because of nearly a century of policies to exclude fire 
from performing its historical role in shaping plant communities, fires 
in our public forests and rangelands now threaten people, communities, 
and natural resources in ways never before seen in our Nation's 
history.
    Many of the Nation's forests and rangelands have become unnaturally 
dense as a result of past fire suppression policies. Today's forests 
contain previously unrecorded levels of fuels, while highly flammable 
invasive species now pervade many rangelands. As a result, ecosystem 
health has suffered significantly across much of the Nation. When 
coupled with seasonal droughts, these unhealthy forests and rangelands, 
overloaded with fuels, are vulnerable to unnaturally severe wildland 
fires. The geographic scope of the problem is enormous, with estimates 
approaching 200 million acres of forest and rangeland at risk of 
catastrophic fire. The problem has been building across the landscape 
for decades. Its sheer size makes it impossible to treat all the acres 
needing attention in a few years or even within the next decade.
    In 2002 alone, the Nation experienced over 88,000 wildland fires 
that cost the Federal Government $1.6 billion to suppress. Many of 
these wildfires significantly impacted threatened or endangered 
species. The Biscuit Fire burned an area of 499,570 acres in Oregon and 
California that included 49 nest sites and 50,000 acres of designated 
critical habitat for the threatened northern spotted owl, and 14 
nesting areas and 96,000 acres of designated critical habitat for the 
threatened marbled murrelet. The estimated fire suppression cost was 
$134,924,847. The Rodeo-Chediski fire in Arizona, the largest fire in 
the State's post-settlement history, burned through 462,614 acres, 
including 20 nesting areas for the threatened Mexican spotted owl. 
Unless fuel loads can be reduced on the thousands of acres classified 
at high risk of catastrophic wildfires, more adverse effects like those 
of the 2002 fire season are certain to occur.
    The long-term strategy for the NFP is to correct problems 
associated with the disruption of natural fire cycles as a result of 
fire suppression policy or the presence of fire-prone non-native 
invasive species and to minimize risks to public safety and private 
property due to the increase in amount and complexity of the urban/
wildland interface. The NFP calls for a substantial increase in the 
number of acres treated annually to reduce unnaturally high fuel 
levels, which will decrease the risks to communities and to the 
environment caused by unplanned and unwanted wildland fire. These types 
of preventative actions will help ensure public safety and fulfill the 
goals of the President's Healthy Forests Initiative.
    The FS, BIA, BLM, and NPS, as Federal land management agencies, 
play an important role in implementing actions under the NFP that will 
reduce the potential risks of catastrophic wildland fire. The FWS also 
develops and carries out actions in support of the NFP on National 
Wildlife Refuges or National Fish Hatcheries. These five agencies 
constitute the Action Agencies who may use the counterpart regulations 
contained herein. The types of projects being conducted by these 
agencies under the NFP include prescribed fire (including naturally 
occurring wildland fires managed to benefit resources), mechanical 
fuels treatments (thinning and removal of fuels to prescribed 
objectives), emergency stabilization, burned area rehabilitation, road 
maintenance and operation activities, ecosystem restoration, and 
culvert replacement actions. Prompt implementation of these types of 
actions will substantially improve the condition of the Nation's 
forests and rangelands and substantially diminish potential losses of 
human lives and property caused by wildland fires. The Service and the 
Action Agencies are adopting these counterpart regulations to 
accelerate the rate at which these types of activities can be 
implemented so that the likelihood of catastrophic wildland fires is 
reduced.

[[Page 68256]]

Federal Fuels Treatment Activities

    Each of the Action Agencies has substantial experience in planning 
and implementing projects that further the goals of reducing risks 
associated with wildland fires, while improving the condition of our 
public lands and wildlife habitat. The FS works collaboratively with 
its partners to design and implement projects to meet a variety of land 
and resource management objectives, including projects to improve 
habitat for wildlife and fish species. Through several hundred 
rehabilitation, restoration and hazardous fuels reduction projects 
under the NFP, the FS treats over 2 million acres each year to benefit 
natural resources, people, and communities. All of these projects have 
long-term multiple resource benefits, and several have short-term 
wildlife benefits as well. On the Winema and Fremont National Forests 
in Oregon, a thousand acres of forest were thinned and underburned to 
protect stands and large trees from wildfire, and to increase the 
longevity of those trees used by bald eagles for nesting and roosting. 
On the Santa Fe National Forest in New Mexico, after habitat loss due 
to the Cerro Grande Fire, ground cover in the form of large fallen 
woody material was restored to benefit the Jemez Mountain salamander. 
Habitat that had been damaged by post-wildland fire debris flows has 
been restored to reduce erosion and benefit Yellowstone cutthroat trout 
on the Custer National Forest in Montana. On the Jefferson National 
Forest in Virginia, prescribed fire is used every 3 years on Mt. Rogers 
to maintain the grassy bald area in a grass-forb stage and prevent 
woody vegetation from becoming established that would out compete rare 
plant species. Similarly, on the National Forests in Mississippi, 
prescribed burning reduces woody vegetation and fuels, encourages fire-
dependent perennials, and restores and expands remnants of native 
prairie.
    The BIA has planned many beneficial projects under the NFP that are 
designed to reduce wildland fire risk on Indian lands and to increase 
public safety around tribal and non-tribal communities. For example, 
one project will utilize both mechanical treatments and prescribed fire 
in lodgepole pine and Engelmann spruce forests to reduce fuel loadings 
and protect residents and residences around the Blackfeet Indian 
Reservation communities of East Glacier, Little Badger, Babb, St. Mary, 
Heart Butte, and Kiowa, in northwestern Montana. A second project would 
also utilize mechanical treatments and prescribed fire to reduce fuel 
loadings in Douglas-fir, ponderosa pine, and grass fuel types that pose 
a high level of risk to the residents around the Rocky Boy's Indian 
Reservation communities of Box Elder Village, Box Elder Creek, Rocky 
Boy Townsite, Duck Creek, and Parker Canyon, in Central Montana. A 
third project would reduce fuels in about 1,300 acres of pine, juniper, 
oak, and grasses, by combining prescribed fire with mechanical fuels 
treatment techniques on Zuni Tribal forest and woodland resources in 
New Mexico. This project would create fuel breaks in large contiguous 
fuels that are at high risk for catastrophic wildfires. Finally, a 
fourth project will stabilize and rehabilitate 276,000 acres of White 
Mountain Apache Tribal lands severely damaged in the Rodeo-Chediski 
Fire. This project will reduce the potential threats to human life and 
property in surrounding communities, along with threats to cultural 
resources, water quantity and quality, and soil productivity.
    Across the Nation, NPS is implementing numerous projects to support 
the goals of the NFP. Park superintendents use prescribed fire 
(including wildland fire), mechanical fuels treatments, and invasive 
species control to restore or maintain natural ecosystems, to mitigate 
the effects of past fire suppression policies, and to protect 
communities from catastrophic wildfires. NPS fire management and 
restoration efforts generally focus on restoring ecosystem processes 
rather than on the management of specific species. However, these 
projects provide important long-term habitat benefits to a variety of 
threatened or endangered species. For example, Great Smoky Mountains 
National Park is completing a 1,034-acre yellow pine restoration burn, 
the largest prescribed burn in the Park's history. The central purpose 
of the Park's use of fire is to replicate as nearly as possible the 
role that naturally occurring fires played in shaping and maintaining 
the Park's biologically diverse ecosystems, while also minimizing the 
risk of future wildfires. At Washita Battlefield National Historic 
Site, the use of prescribed fire is intended to restore and maintain 
grassland/prairie habitats in a healthy condition. The operation was an 
interagency effort between the FS and the NPS. Similarly, Gulf Islands 
National Seashore has conducted prescribed burns for habitat 
restoration and to reduce hazardous fuels. These burns both restore key 
vegetative communities and provide habitat for relocated gopher 
tortoises. Other projects have improved habitat for red-cockaded 
woodpeckers at Big Thicket National Preserve and bald eagles at 
Lavabeds National Monument. All of these fuels treatment projects will 
enhance public safety for the communities around the Parks.
    The BLM is proceeding with many NFP projects to restore dense 
pinyon pine and juniper forests and woodlands, nearly devoid of 
understory shrubs, grasses, and forbs, to a more natural savannah, or 
open woodland conditions. In the Farmington Field Office, New Mexico, 
the Pump Mesa project is a multiple phase project to open up the pinyon 
pine and juniper forest canopy by thinning, wood removal, and 
prescribed burning, to make space, sunlight, water, and nutrients 
available for the manual seeding of native understory species that were 
formerly present on the site. Densities of trees in the pinyon pine 
systems have increased to the point that large proportions of these 
woodlands have become highly combustible, supporting crown fires that 
can produce catastrophic habitat loss for wildlife and high risk to 
nearby communities. In the Richfield Field Office, the Praetor Slope 
Fuel Reduction project will mechanically displace patches of juniper 
and sagebrush to reduce the risk created by large, dense contiguous 
areas of fuel, while creating valuable deer and elk range, complete 
with islands and feathered woodlands that provide necessary animal 
cover. In the Central Montana Fire Management Zone, a number of small 
and moderate-sized prescribed burns, such as in Cow Creek, Little Bull 
Whacker, and Fergus Triangle, have been completed to increase wildlife 
habitat diversity, reduce fuel loads, and increase forage for both 
livestock and wildlife.

Endangered Species Act Section 7 Consultation

    Section 7(a)(2) of the ESA requires that each Federal agency shall, 
in consultation with and with the assistance of the Service, insure 
that any action it authorizes, funds, or carries out is not likely to 
jeopardize the continued existence of any listed species or result in 
destruction or adverse modification of designated critical habitat. 
Section 7(b) of the ESA describes the consultation process, which is 
further developed in regulations at 50 CFR 402.
    The existing ESA section 7 regulations require an action agency to 
complete formal consultation with the Service on any proposed action 
that may affect a listed species or designated critical habitat, unless 
following either a biological assessment or informal

[[Page 68257]]

consultation with the Service, the action agency makes a determination 
that a proposed action is ``not likely to adversely affect'' any listed 
species or designated critical habitat and obtains written concurrence 
from the Service for the NLAA determination. The alternative 
consultation process contained in these counterpart regulations will 
allow the Service to provide training, oversight, and monitoring to an 
Action Agency through an alternative consultation agreement (ACA) that 
enables the Action Agency to make an NLAA determination for a project 
implementing the NFP without informal consultation or written 
concurrence from the Service.
    Using the existing consultation process, the Action Agencies have 
consulted with the Service on many thousands of proposed actions that 
ultimately received written concurrence from the Service for NLAA 
determinations. Those projects had only insignificant or beneficial 
effects on listed species or posed a discountable risk of adverse 
effects. The concurrence process for such projects has diverted some of 
the consultation resources of the Service from projects in greater need 
of consultation. With the anticipated increase in fire plan projects, 
the concurrence process could cause delays. These counterpart 
regulations are being implemented to proactively reduce these 
anticipated delays and to increase the Service's capability to focus on 
Federal actions requiring formal consultation by eliminating the 
requirement to provide written concurrence for actions within the scope 
of these counterpart regulations.
    The Action Agencies have engaged in thousands of formal and 
informal consultations with the Service in the 30 years since the 
passage of the ESA, and have developed substantial scientific, 
planning, mitigation, and other expertise to support informed decision-
making and to meet their responsibilities under ESA section 7 to avoid 
jeopardy and contribute to recovery of listed species. To meet their 
obligations, the Action Agencies employ large staffs of qualified, 
experienced, and professional wildlife biologists, fisheries 
biologists, botanists, and ecologists to help design, evaluate, and 
implement proposed activities carried out under land use and resource 
management plans. All of the Action Agencies consult with the Service 
on actions that implement land use and resource management plans that 
contribute to the recovery of proposed and listed species and the 
ecosystems upon which they depend. In particular, the informal 
consultation and concurrence process has given the Action Agencies 
considerable familiarity with the standards for making NLAA 
determinations for their proposed actions.
    The Action Agencies have developed familiarity with the standards 
over time through various activities. The Action Agencies develop 
proposals and evaluate several thousand actions for possible effects to 
listed species and designated critical habitat. Agency biologists are 
members of listed species recovery teams, contribute to management 
plans that provide specific objectives and guidelines to help recover 
and protect listed species and designated critical habitat, and 
cooperate on a continuing basis with Service personnel. In many parts 
of the country, personnel from the Action Agencies and the Service 
participate in regular meetings to identify new management projects and 
the effects to proposed and listed species through formalized 
streamlined consultation procedures.
    The Action Agencies' established biological expertise and active 
participation in the consultation process provides a solid base of 
knowledge and understanding of how to implement section 7 of the ESA. 
By taking advantage of this expertise within the Action Agencies, the 
counterpart regulations process will help ensure more timely and 
efficient decisions on planned NFP actions while retaining the 
protection for listed species and designated critical habitat required 
by the ESA and other applicable regulations. The Service can rely upon 
the expertise of the Action Agencies to make NLAA determinations that 
are consistent with the ESA and its implementing regulations. Moreover, 
the Action Agencies are committed to implementing this authority in a 
manner that will be equally as protective of listed species and 
designated critical habitat as the current procedures that require 
written concurrence from the Service.
    The Healthy Forests Initiative builds from the recognition that 
more timely environmental reviews of proposed fire plan projects will 
provide greater benefits to the range, forest lands, and wildlife by 
reducing the risk of catastrophic wildfire while the reviews are 
pending. These counterpart regulations provide an additional tool for 
accomplishing faster reviews. Streamlining the NLAA concurrence process 
offers a significant opportunity to accelerate NFP projects while 
providing equal or greater protection of the resources. Under current 
procedures, the Action Agencies must already complete and document a 
full ESA analysis to reach an NLAA determination. The counterpart 
regulations permit a project to proceed following an Action Agency's 
NLAA determination without an overlapping review by the Service, where 
the Service has provided specific training and oversight to achieve 
comparability between the Action Agency's determination and the likely 
outcome of an overlapping review by the Service. These counterpart 
regulations should significantly accelerate planning, review, and 
implementation of NFP actions, and by doing so, should contribute to 
achieving the habitat management and ecosystem restoration activities 
contemplated under the NFP.

Summary of Comments Received

    On June 5, 2003 (68 FR 33806), we proposed the rule that would 
establish the joint counterpart regulations for consultation under 
section 7 of the ESA to streamline consultation on proposed projects 
that support the NFP. The comment period closed on August 4, 2003. On 
October 9, 2003 (68 FR 58298), we reopened the comment period on the 
proposed rule and provided a notice of availability for the 
Environmental Assessment. The second comment period closed on November 
10, 2003. During these two comment periods, the Service received more 
than 50,000 comments on the proposed rule from a large variety of 
entities, including State, County, Tribal agencies, industry, 
conservation groups, religious groups, coalitions, and private 
individuals. The Service and the Action Agencies considered all of the 
information and recommendations received from all interested parties on 
the proposed regulation during the public comment period and 
appreciated the comments received on the proposed rule. The Service 
received numerous comments on the scope of the National Fire Plan, for 
example, appropriate fire cycles, thinning and restoration practices, 
which were beyond the narrow scope of the proposed rulemaking for the 
counterpart regulations.
    The following is a summary of the comments on the proposed 
counterpart regulations, and the Service's response.

State and Tribe Comments

    We received comments from three States and two Tribal agencies.
    Issue: One State recommended including the State fish and wildlife 
agencies during the development of the ACAs and, where appropriate, 
during the development of documentation in support of NLAA 
determinations. Including the States would better ensure

[[Page 68258]]

that the best available scientific information is used during the 
determination analysis by the Action Agencies.
    Response: We agree that the State agencies likely have biological 
information that will be relevant in making an NLAA determination. The 
Services currently have a joint policy (59 FR 34275) in which we 
request any information from the State that might be relevant, as well 
as notify the State of any action that might adversely affect any 
proposed or listed species or designated critical habitat. The Service 
will encourage each of the Action Agencies to embrace this policy as a 
component of the ACA.
    Issue: One State, and several commenters, expressed concern that 
this proposed regulation does not go far enough to improve the overall 
efficiency of the consultation process and, therefore, should be opened 
up to all projects, not just fire plan projects. A few commenters 
suggested including the Corps of Engineers and Environmental Protection 
Agency in the list of Action Agencies.
    Response: These counterpart regulations have been proposed as part 
of the President's Healthy Forests Initiative to accelerate the rate at 
which fire plan projects can be implemented. Once these counterpart 
regulations are adopted and implemented, the Services believe that 
other agencies may decide that similar counterpart regulations would 
help to expedite other types of actions. The EPA has already published 
an advance notice of rulemaking for developing counterpart regulations 
for pesticides (68 FR 3785, January 24, 2003). The Services will take 
up any such proposals from other agencies in the future as 
circumstances may warrant.
    Issue: One State and several commenters were concerned that these 
counterpart regulations relieve the Service of its duties and the 
resources that will be spent creating a new process could be used more 
efficiently by the Service to carry out its duties under the ESA.
    Response: We agree that the Services will likely experience a small 
short-term increase in administrative burden as they begin to implement 
the training and oversight components of the regulations and ACAs. 
However, this short term burden will be more than balanced out by a 
substantial long term increase in Service efficiency resulting from a 
reduction in resources required to review projects that ultimately 
receive a NLAA concurrence letter. We believe that by removing the need 
to provide NLAA concurrence letters on NFP projects, the Services will 
be able to devote greater resources to analyzing and coordinating on 
projects that do have adverse effects on listed species and designated 
critical habitat. We believe this shift in resources will not only 
accelerate NFP projects, but will also generally expedite consultations 
on other projects, which will make the most efficient use of the 
Services time. This will ultimately provide more conservation to listed 
species, thus fulfilling the objectives of the ESA.
    Issue: The two Tribal comments stated that the Action Agency will 
still need to complete a biological assessment for its action. In 
addition, both tribal commenters requested government-to-government 
consultation.
    Response: We agree that an Action Agency will still need to 
complete a biological assessment for an action when required by the 
ESA. The regulations at 50 CFR 402.12 require the preparation of a 
biological assessment for those Federal actions that are ``major 
construction activities.'' Given that these counterpart regulations 
only address those fire plan projects that are not likely to adversely 
affect listed species or critical habitat, we do not anticipate that a 
large majority of these actions would otherwise require preparation of 
a biological assessment.
    The standards for making an NLAA determination remain unchanged by 
these counterpart regulations. These counterpart regulations do not 
change the analysis that is conducted for determining how a proposed 
project affects listed species or critical habitat. Therefore, this 
counterpart regulation will maintain the same level of protection for 
listed species or designated critical habitat. As such, we do not 
believe that tribal resources will be affected by implementation of 
this rule and government-to-government consultation is not necessary at 
this stage in the process.

General Comments

    Issue: Many commenters felt that the proposed counterpart 
regulations will give some interest groups, such as logging companies 
and other commercial interests, free reign over public land, which will 
increase commercial timber sales, and that this result is not in the 
best interest of the species or the public.
    Response: This regulation will apply only to those projects that 
are within the scope of the NFP and are not likely to adversely affect 
listed species or critical habitat. Commercial timber sales that 
adversely affect listed species and designated critical habitat will 
still need to be analyzed through formal consultation. We believe that 
implementation of the counterpart regulations will allow the Service to 
focus its efforts on Federal actions that are likely to adversely 
affect listed species and critical habitat. This will ultimately 
benefit listed species.
    Issue: Several commenters noted that the proposed rule has failed 
to offer any empirical evidence substantiating the claim that the 
regulatory obstacles have unnecessarily delayed active land management 
activities.
    Response: The Healthy Forests Initiative is intended to accelerate 
implementation of the fuels reduction and ecosystem restoration goals 
of the NFP in order to minimize damage caused by catastrophic 
wildfires. Accordingly, the issue is not whether the regulatory process 
has delayed NFP projects, but rather whether it can be streamlined so 
as to expedite the projects. The number of consultations conducted for 
NFP projects is currently relatively low; however the Service 
anticipates that the number of consultations requested for projects 
that implement the NFP will increase substantially in the future, as 
additional funding and effort is directed toward implementation of the 
NFP. Due to the beneficial effects that this initiative will have to 
fish and wildlife resources, the Services are ensuring that actions 
supporting the NFP that are NLAA listed species or critical habitat are 
not delayed.
    Issue: Many commenters believe that the Action Agencies do not have 
the expertise to make the determinations without concurrence from the 
Service. They believe that the Service is the expert agency and without 
the Service's input many of the decisions will have a negative impact 
on listed species. In particular, the commenters believe that the 
Action Agencies do not know the biology of the species or the other 
indirect or cumulative effects that should be factored into the 
analysis.
    Response: The Action Agencies employ large staffs of professional 
wildlife biologists, botanists, and ecologists to meet their 
obligations under the Act and other natural resource management laws 
they implement. The primary responsibility of these professionals is to 
evaluate how proposed projects will affect listed species and critical 
habitat.
    The counterpart regulations contain a process for making sure that 
the Action Agencies have the necessary skills to make the NLAA 
determinations without Service concurrence. First, the Service and the 
Action Agencies will jointly develop a training program that will

[[Page 68259]]

allow each Action Agency's staff to develop and maintain the same 
skills that the Service has in making the NLAA determinations. Second, 
the ACA will include provisions for incorporating new information on 
currently listed species and new species and critical habitat into the 
Action Agency's effects analysis of proposed actions. These two 
provisions of the ACA will provide the Action Agency with the same 
expertise and information that the Service possesses. This process will 
maximize the use of the Service and Action Agencies' resources by 
incorporating this additional knowledge into the Action Agencies' 
current wealth of expertise.
    Issue: One commenter noted that both the Service and NMFS have 
policies regarding the use of high quality scientific and commercial 
data in making decisions. FS and BLM do not have similar policies 
presenting a challenge to prevent them from making the best decisions 
possible. One commenter noted that streamlining to speed up 
accomplishments of one goal may result in decisions being made on 
inadequate data, lack of perspective on other goals and values, and 
lack of knowledge of other alternatives, therefore risking failure of 
making sound and wise decisions. Many commenters believe that, by 
eliminating the Service, the Action Agencies will not make sound 
decisions; that is, they will not be considering all of the facts and 
possible ramifications.
    Response: Section 7 of the ESA requires that each agency shall use 
the best available scientific and commercial information. This standard 
applies to any analysis that the Action Agency may make, as well as the 
Service. It is the responsibility of the Action Agency to become aware 
of all of the information necessary to make the determinations. In 
signing the ACA, the Action Agency is agreeing to take on the 
responsibility of making decisions using the best scientific and 
commercial data available. It is common practice for the Service and 
the Action Agency to share information in the field, and we expect this 
practice will continue with the implementation of these counterpart 
regulations.
    The jointly developed training program will allow the Action Agency 
staff to develop and maintain the same skills that the Service has in 
making the NLAA determinations. In addition, the Service will retain 
oversight authority and, through the periodic review and the monitoring 
program, will evaluate whether the Action Agency has implemented the 
regulation consistent with the best available scientific and commercial 
information, the ESA, and the section 7 regulations.
    Issue: Several commenters stated that the definition of NFP project 
is overly broad and the Action Agencies could grant discretion to 
undertake projects that are directly at odds with the philosophy and 
purpose of the NFP.
    Response: The definition according to the counterpart regulations 
of a fire plan project is ``an action determined by the Action Agency 
to be within the scope of the NFP as defined in this section.'' The 
Action Agency will have the responsibility to justify whether any 
action it is undertaking falls within the NFP scope. Several examples 
of typical projects, such as mechanical treatments or prescribed fire, 
are listed in the preamble for the regulation. While the definition is 
broad, the Action Agency will ultimately have to determine if the 
action will further the goals of the NFP to reduce risks associated 
with wildland fires, while improving the condition of our public lands 
and wildlife habitat.
    Issue: Many commenters believe that the different missions between 
the Action Agencies and the Service will not allow the Action Agencies 
to make decisions that would be ``equally as protective of listed 
species and critical habitat.'' In fact many commenters noted that 
historically, the action agencies have pursued environmentally damaging 
projects that were in direct conflict with their own policy. Many 
commenters suggested that eliminating the Service concurrence is like 
asking the fox to watch the henhouse. One State noted that they believe 
the elimination of oversight and environmental review will allow the 
Action Agencies to abuse the discretion.
    Response: The Action Agencies are legally obligated to implement 
the ESA, and have large staffs of professional biologists fully able to 
do so. These counterpart regulations do not change the standards that 
apply in assessing the effects of the action. As stated in Sec.  402.31 
of the counterpart regulations, the process established in the 
counterpart regulation will be as protective to listed species and 
designated critical habitat as the process established in subpart B of 
the regulations.
    As discussed in the oversight section, Sec.  402.34, the Service 
Director retains discretion to terminate the ACA if the Action Agency 
fails to comply with the requirements of the counterpart regulations, 
section 7 of the Act, or the terms of the ACA. Therefore, we believe 
that sufficient training, monitoring, and oversight is built in to the 
process to ensure that the Action Agencies will appropriately implement 
their responsibilities under section 7 and these regulations.
    Issue: Several commenters noted that informal consultation allows 
the Service to work with the Action Agency to reduce the adverse 
effects of a project on listed species or critical habitat. Those 
instances where the Service does not concur with the Action Agencies 
are the very reason for the consultation with the expert wildlife 
agencies. Many commenters summarized this thought by stating that the 
counterpart regulations will eliminate the checks and balances inherent 
in the Act.
    Response: These proposed counterpart regulations do not eliminate 
the Action Agency's ability to request informal consultation or to 
engage in day-to-day technical assistance with the Service when making 
NLAA determinations on fire plan projects. Some commenters may have 
misconstrued the ultimate use of this authority, which is for actions 
that support the NFP that are NLAA only. The section 7 standards remain 
unchanged by the counterpart regulations.
    In addition, through the oversight provisions of Sec.  402.34, the 
Service will work with the Action Agencies to determine whether the 
Action Agency is implementing the regulation accordingly.
    Issue: A couple of commenters thought the Service should make 
organizational or structural changes to expedite the review process. 
One commenter suggested a process comprised of a series of stages that 
would increase the complexity of analysis, if warranted. Another 
commenter suggested that the process could be further streamlined by 
using a programmatic consultation approach.
    Response: The Service considered administrative changes and 
agreements that would help streamline reviews in the Environmental 
Assessment for the Counterpart Regulations, September 30, 2003. As 
discussed in the EA, the Service and the Action Agencies currently have 
several agreements in place. While such agreements streamline the 
process significantly by improving coordination between the consulting 
agencies, the process still requires involvement of the Service in the 
concurrence decisions on projects that are NLAA listed species or 
critical habitat. These types of streamlining processes can work well 
to meet statutory timelines, but they still encumber the Service's 
biologists in requiring concurrences for NLAA actions and thereby 
diverting their attention from actions that require formal 
consultation. We believe these

[[Page 68260]]

counterpart regulations will accelerate the process of approval for 
fire plan projects and allow the Service to devote more time to 
analyzing and coordinating on projects that have adverse effects on 
listed species and designated critical habitat.
    Issue: A few commenters suggested using the counterpart regulation 
to also modify the timeline for formal consultation. At a minimum, it 
was suggested to set a deadline that is shorter than 90 days for the 
consultation and 45 days for preparation of the biological opinion.
    In addition, a couple of commenters suggested that the counterpart 
regulation is governed only by the statute and therefore the final 
regulation could change the NLAA standard such that any project with 
net benefits is not likely to adversely affect. The commenters noted 
that, without this modification, the proposed rule will likely be 
inefficient to streamline consultation. In addition, the rule should be 
allowed to change the threshold levels for ``may affect.''
    Response: The focus of the counterpart regulations was to provide 
an optional alternative to the standard section 7 consultation process 
that would be consistent with 50 CFR 402.04. The Service is not 
constrained by the statutory language in that it may (and often does) 
complete consultations in less than 90 days. The Service has already 
issued clarifying policy about the importance of considering the long-
term benefits of fuel reduction projects such that revising the NLAA 
standards as part of these regulations is unnecessary to accomplish the 
goal of streamlining for the Healthy Forests Initiative.
    Issue: Contractors of the Action Agency and local governments 
should be allowed to be a full participant in the consultation process 
from beginning to end.
    Response: This regulation does not change the statutory or 
regulatory process for applicants to participate in the consultation. 
We expect that applicants will continue to have participation in the 
areas of the consultation process that are appropriate.
    Issue: Many commenters believe that adoption of this counterpart 
regulation violates the plain language of the statute, which states 
that ``each Federal agency shall, in consultation with and with the 
assistance of the Secretary, insure that any action * * *''. 
Specifically, they assert that the proposed counterpart regulations 
violate sections 7(a)(2), 7(a)(4) and 7(b). By allowing the Action 
Agencies to reach their own conclusions without the Service 
concurrence, the Service would not be allowed to provide reasonable and 
prudent alternatives, reasonable and prudent measures, or to conduct a 
jeopardy analysis.
    Response: The Services have concluded that the counterpart 
regulation does not violate the language or spirit of the ESA. The 
counterpart regulation makes no changes to the statutory requirement 
for formal consultation on agency actions that are likely to adversely 
affect listed species or designated critical habitat. The counterpart 
regulation builds upon the fundamental distinction in the current 
Subpart B consultation regulations between the formal consultation 
required for more significant projects and the lesser form of 
consultation required for actions that are not likely to adversely 
affect listed species or designated critical habitat. Neither informal 
consultation nor NLAA concurrence is specified in the ESA. The 
counterpart regulation creates a new, carefully-structured training, 
monitoring and oversight relationship between the Service and the 
Action Agency as an alternative for the individual project-based 
concurrence system that was created in the Subpart B regulatory 
framework. The counterpart regulation creates a system where the Action 
Agency is trained and supervised to perform NLAA determinations just as 
the Service would in a concurrence letter, with less delay and equal 
protection for listed species and designated critical habitat.
    The Service believes that through implementation of the ACA and 
through the oversight discussed in Sec.  402.34, the counterpart 
regulations comply with the statute, and the Action Agencies are 
insuring, in consultation with and with assistance of the Secretary, 
that any action is not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of critical habitat. Through the periodic review and monitoring 
program, the Service will provide assistance to the Action Agency by 
recommending changes to the Action Agency's implementation of the ACA, 
if necessary. Consultation will continue to occur through the 
implementation of the ACAs and the ongoing review and monitoring 
program.
    Issue: One commenter believed that the proposed rule violates 
section 7(c)(1) of the ESA. The commenter suggested that 7(c) places a 
mandatory duty on Federal Action Agencies to initiate consultation and 
communication with the Service on all projects.
    Response: Section 7(c) of the Act requires each Federal Agency to 
prepare a biological assessment for the purpose of identifying any 
endangered or threatened species, which is likely to be affected by an 
action. Consistent with congressional intent (H.R. Conf. Rep. 96-697, 
1979), the regulations at 50 CFR 402.12 specify that this requirement 
applies only to those Federal actions that are ``major construction 
activities.'' Given that these counterpart regulations address only 
those fire plan projects that are not likely to adversely affect listed 
species or critical habitat, we do not anticipate a large majority of 
these actions would otherwise require preparation of a biological 
assessment.

Section-by-Section Analysis

Procedures

    Issue: Several commenters suggested that the ACAs should be subject 
to a 60-day public review and comment period. A few commenters noted 
that the rule is also unclear as to whether the ACAs are subject to 
NEPA. Many commenters were concerned that the timetable for developing 
the ACAs would prolong the implementation of the rule. One commenter 
suggested that the ACAs should be developed prior to finalization of 
the counterpart regulations.
    Response: The ACAs will be made available to the public as stated 
in the proposed rule. The details of the individual ACAs will conform 
to the elements described in the procedures section. The individual 
ACAs will most likely be categorically excluded from the NEPA 
requirements. However, with any categorical exclusion, conditions at 
the time may warrant more environmental analysis consistent with the 
Action Agencies' requirement to identify extraordinary circumstances 
under 40 CFR 1508.4. The NEPA determination will be made at the time 
the individual ACAs are proposed. The Service anticipates that 
development of the ACAs, for those Action Agencies that want to 
implement the counterpart regulations, will begin immediately following 
finalization of the counterpart regulations.
    Issue: Many commenters believed that the details outlined in the 
regulations regarding training, standards, incorporating new 
information, and the periodic monitoring and program evaluation should 
be specified in the regulation and not the ACA.
    Response: The Service and the Action Agencies wanted to allow 
maximum flexibility for each individual Action Agency's needs with 
regard to the specific requirements in the ACA. For

[[Page 68261]]

instance, the training program for the Forest Service nationwide, which 
has had extensive experience with section 7 consultation, may be 
different from the BIA nationwide in which several districts may have 
more experience than others. Allowing the details of, the training 
program for example, to be further discussed in the ACA allows for the 
program to be tailored for each particular Action Agency.

Staff Positions

    Issue: One commenter believes that the ACA should list the Action 
Agency staff making the determinations by name including their academic 
and professional experience. Then the Service should make sure their 
skill level is appropriate to make the determinations.
    Response: The counterpart regulations and the subsequent ACAs have 
established a system whereby the Action Agency can make the 
determinations without concurrence by the Service. The Action Agencies 
are committed to implementing this authority in a manner that will be 
equally protective of listed species and critical habitat as the 
current procedures. In implementing the ACA, the Action Agency will 
retain full responsibility for compliance with section 7 of the ESA. 
Given that responsibility, the Action Agency will determine the 
appropriate skill level for making the determinations.

Training

    Issue: Several commenters acknowledged that the Action Agencies 
already employ the biological expertise necessary to make the NLAA 
determination; therefore, the training program does not need to be 
complex, and instead there should be a procedure to certify personnel 
without training. One commenter suggested just having periodic 
refresher courses.
    Response: While we agree that the Action Agencies already have 
familiarity with the standards for making an NLAA determination, we 
believe that a focused training program that discusses how the Service 
analyzes the NLAA determination when concurrence is requested will 
achieve an even higher level of protection for listed species and 
designated critical habitat.
    Issue: One commenter suggested that the training program should 
include principles of conservation biology, the life history of the 
species of which the determinations will be made, animal ecology, plant 
ecology, and environmental impact analysis.
    Response: The Action Agencies currently make the NLAA 
determinations based on the recommendations from professional 
biologists who are employed or contracted by the Action Agencies. The 
training program envisioned in the counterpart regulation will focus on 
the fundamental aspects of section 7 that the Action Agency staff will 
need to understand when making the NLAA determination without the 
Service concurrence.

Standards

    Issue: One State and a few other commenters suggested that uniform 
national standards should be in the regulation not the ACA, including 
the specific standards and procedures for implementing the ACA and 
assuring that the direct and indirect effects of the proposed action 
will not have an adverse effect on listed species.
    Response: The overall standards for making an NLAA determination 
remain unchanged by these counterpart regulations. The ACA will include 
specific standards that the individual Action Agency will be applying 
in assessing the effects of the action. Since the ACAs are between the 
Service and the individual Action Agency, the specific standards in 
each ACA can be more individualized for the fire plan projects that 
each Action Agency may undertake.
    Issue: Several commenters noted that any standard developed for 
effects analysis should not result in a new consultation process that 
produces unnecessarily lengthy, detailed analyses or require analyses 
that seek data that are nonexistent or unreliable.
    Response: The Service and the Action Agencies agree. The purpose of 
the counterpart regulations is to accelerate the process of approving 
NFP projects by reducing the time and effort needed to conduct a 
consultation for NFP activity that is not likely to adversely affect 
listed species or designated critical habitat. These counterpart 
regulations will not change the section 7 standards, only the process 
by which consultation is conducted.

Monitoring

    Issue: One commenter suggested that the periodic review and 
monitoring program should have on-site audits that occur quarterly and 
audits of the NLAA decisions that are conducted monthly, with a 
corrective action plan prepared by the Action Agency, if warranted. If 
the corrective action plan is not submitted on time, the ACA is 
automatically void.
    Response: The Service and the Action Agencies will determine the 
most appropriate periodic review and monitoring program for each 
individual Action Agency. The counterpart regulations do contemplate, 
if appropriate, the termination of the ACA.
    Issue: One commenter suggested that the Action Agencies should 
conduct the monitoring and periodic review program and then provide the 
Service with a report.
    Response: The Service believes that, to maintain oversight over the 
program, the periodic review and monitoring must be done jointly 
between the Service and the Action Agency. This will allow the Service 
to recommend whether the terms of the ACA should be modified.

Oversight

    Issue: The two State commenters, the tribes, and a number of other 
commenters believe that specific information should be included to 
clarify under what conditions an Action Agency's ACA may be suspended 
or revoked should the Action Agencies fail to meet their new ESA 
responsibilities.
    Response: We anticipate that the ACA will provide the detail, 
specific to each Action Agency, for the periodic review and monitoring 
program. The agencies anticipate that the details of such items as 
timing and procedures will be described in the ACA. In addition, the 
ACA will specify the information that will be necessary to provide for 
the periodic review. Section 402.33(a)(2)(vi) specifically states that 
the Action Agency will be responsible for maintaining the necessary 
records to allow the Service to complete the periodic program 
evaluation. The Oversight section of the counterpart regulations 
discusses the standards that the Service will use to evaluate the 
Action Agencies' implementation of the regulation.
    Issue: Several commenters believe that enforcement of the ACA will 
be problematic because suspension of an ACA resulting from failure to 
comply will not affect the validity of prior NLAA determinations. If an 
Action Agency is found violating the mandate of section 7, such a 
violation will have no bearing upon past projects enabled by the 
violation. One commenter suggested simply changing 402.34 to ``Service 
Director is required to terminate the ACA if * * *''
    Response: We disagree that enforcement will be an issue. The Action 
Agencies must comply with the terms of the ACA and the counterpart 
regulations prescribe the remedy for any failure by an Action Agency to 
comply

[[Page 68262]]

with the terms of the ACA. If, through the periodic review and 
monitoring program, the Service determines that implementation of this 
regulation is not consistent with the best available information, the 
ESA, or the section 7 regulations, then the Service will work with the 
Action Agency to correct the issue. If the consistency issues persist, 
the Service Director has the ability to terminate the ACA for an 
individual sub-unit of the Action Agency. This should not call into 
question any of the other sub-units' determinations or any of the 
determinations prior to the issue at hand. The Service Director always 
retains discretion to terminate the ACA with the Action Agency if it 
fails to comply with the requirements of this subpart, section 7 of the 
ESA, or the terms of the ACA. The terms of the ACA are intended to be 
enforceable only through the remedies available to the Services under 
the counterpart regulations.

Revisions to the Proposed Rule

    In Sec.  402.31, we changed ``The purpose of these counterpart 
regulations is to improve the consultation * * *'' to read, ``The 
purpose of these counterpart regulations is to enhance the efficiency 
and effectiveness of the consultation * * *.'' The change is made to 
clarify that the intent of these counterpart regulations is to 
accelerate the rate at which fire plan projects are processed without 
changing the section 7 consultation standards.

Description/Overview of the Final Rule

    Regulations at 50 CFR 402.04 provide that ``the consultation 
procedures may be superseded for a particular Federal agency by joint 
counterpart regulations among that agency, the Fish and Wildlife 
Service, and the National Marine Fisheries Service.'' The preamble to 
the 1986 regulations for implementing section 7 of the ESA states that 
``such counterpart regulations must retain the overall degree of 
protection afforded listed species required by the [ESA] and these 
regulations. Changes in the general consultation process must be 
designed to enhance its efficiency without elimination of ultimate 
Federal agency responsibility for compliance with section 7.'' The 
approach in these counterpart regulations is consistent with Sec.  
402.04 because it leaves the standards for making NLAA determinations 
unchanged. The joint counterpart regulations establish an optional 
alternative process to conduct consultation under section 7 of the ESA 
for actions that the FS, BIA, BLM, FWS, or NPS might authorize, fund, 
or carry out to implement the NFP. The procedures outlined in these 
counterpart regulations differ from the existing procedures in 50 CFR 
part 402 subparts A and B, Sec.  402.13 and Sec.  402.14(b), by 
allowing an Action Agency to enter into an ACA with the Service that 
will allow the Action Agency to make an NLAA determination on a 
proposed NFP project without informal consultation or written 
concurrence from the Service. Further, Action Agencies operating under 
these counterpart regulations retain full responsibility for compliance 
with section 7 of the ESA.
    Under the counterpart regulations, the Action Agencies will enter 
into an ACA with either FWS, NMFS or both. The ACA will include: (1) A 
list or description of the staff positions within the Action Agency 
that will have authority to make NLAA determinations; (2) a program for 
developing and maintaining the skills necessary within the Action 
Agency to make NLAA determinations, including a jointly developed 
training program based on the needs of the Action Agency; (3) 
provisions for incorporating new information and newly listed species 
or designated critical habitat into the Action Agency's effects 
analysis on proposed actions; (4) provisions for the Action Agency to 
maintain a list of fire plan projects that received NLAA determinations 
under the agreement; and (5) a mutually agreed upon program for 
monitoring and periodic program evaluations. By following the 
procedures in these counterpart regulations and the ACA, the Action 
Agencies fulfill their ESA section 7 consultation responsibility for 
actions covered under these regulations.
    The purpose of the jointly developed training program between the 
Action Agency and the Service is to ensure that the Action Agency 
consistently interprets and applies the relevant provisions of the ESA 
and the regulations (50 CFR part 402) relevant to these counterpart 
regulations with the expectation that the Action Agency will reach the 
same conclusions as the Service. We expect that the training program 
will be consistent among Action Agencies, subject to differing needs 
and requirements of each agency, and will rely upon the ESA 
Consultation Handbook as much as possible. The training program may 
include jointly developed guidelines for conducting the ESA section 7 
effects analysis for the particular listed species and critical habitat 
that occur in the jurisdiction of the Action Agency requesting the 
agreement. Training may also emphasize the use of project design 
criteria for listed species where they have been developed between the 
Service and the Action Agency.
    Because the Service maintains information on listed species, the 
Service may supply any new information it receives that would be 
relevant to the effects analysis that the Action Agencies will conduct 
to make the NLAA determinations. In addition, the Service will 
coordinate with the Action Agency when new species are proposed for 
listing or new critical habitat is proposed.
    The Service will use monitoring and periodic program reviews to 
evaluate an Action Agency's performance under the ACA at the end of the 
first year of implementation and then at intervals specified in the 
ACA. The evaluation may be on a subunit basis (e.g., a particular 
National Forest or BLM district) where different subunits of an Action 
Agency begin implementation of the ACA at different times. The Service 
will evaluate whether the implementation of this regulation by the 
Action Agency is consistent with the best available scientific and 
commercial information, the ESA, and section 7 regulations. The result 
of the periodic program review may be to recommend changes to the 
Action Agency's implementation of the ACA. These recommendations could 
include suspending or excluding any participating Action Agency 
subunit, but more likely may include additional training. The Service 
will retain discretion for terminating the ACA if the requirements 
under the counterpart regulations are not met. However, any such 
suspension, exclusion, or termination will not affect the legal 
validity of NLAA determinations made prior to the suspension, 
exclusion, or termination.
    Upon completion of an ACA, the Action Agency and the Service will 
implement the training program outlined in the ACA. At the Action 
Agency's discretion, the training program may be designed such that 
some subunits may begin implementing the ACA before agency personnel in 
other subunits are fully trained. The Action Agency will assume full 
responsibility for the adequacy of the NLAA determinations that it 
makes.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal or policy issues, and 
was reviewed by the Office of Management and Budget

[[Page 68263]]

(OMB) in accordance with the four criteria discussed below.
    (a) This counterpart regulation will not have an annual economic 
effect of $100 million or more or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. The 
counterpart regulations do not pertain to commercial products or 
activities or anything traded in the marketplace.
    (b) This counterpart regulation is not expected to create 
inconsistencies with other agencies' actions. FWS and NMFS are 
responsible for carrying out the Act.
    (c) This counterpart regulation is not expected to significantly 
affect entitlements, grants, user fees, loan programs, or the rights 
and obligations of their recipients.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. The 
Regulatory Flexibility Act requires Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
    Pursuant to the Regulatory Flexibility Act, we certified to the 
Small Business Administration that these regulations would not have a 
significant economic impact on a substantial number of small entities. 
The purpose of the rule is to increase the efficiency of the ESA 
section 7 consultation process for those activities conducted to 
implement the NFP. The changes will lead to the same protections for 
listed species as the section 7 consultation regulations at 50 CFR part 
402 and will only eliminate the need for the Action Agency to conduct 
informal consultation with and obtain written concurrence from the 
Service for those NFP actions that the Action Agency determines are 
``not likely to adversely affect'' (NLAA) any listed species or 
designated critical habitat.
    Regulations at 50 CFR 402.04 provide that ``the consultation 
procedures may be superseded for a particular Federal agency by joint 
counterpart regulations among that agency, the Fish and Wildlife 
Service, and the National Marine Fisheries Service.'' The preamble to 
the 1986 regulations for implementing section 7 states that ``such 
counterpart regulations must retain the overall degree of protection 
afforded listed species required by the [ESA] and these regulations. 
Changes in the general consultation process must be designed to enhance 
its efficiency without elimination of ultimate Federal agency 
responsibility for compliance with section 7.''
    Under the counterpart regulations, the Action Agencies will enter 
into an Alternative Consultation Agreement (ACA) with either or both of 
the Services as appropriate. The ACA will include: (1) A list or 
description of the staff positions within the Action Agency that will 
have authority to make NLAA determinations; (2) a program for 
developing and maintaining the skills necessary within the Action 
Agency to make NLAA determinations, including a jointly developed 
training program based on the needs of the Action Agency; (3) 
provisions for incorporating new information and newly listed species 
or designated critical habitat into the Action Agency's effects 
analysis on proposed actions; (4) provisions for the Action Agency to 
maintain a list of fire plan projects that received NLAA determinations 
under the agreement; and (5) a mutually agreed upon program for 
monitoring and periodic program evaluations. The purpose of the 
training program is to ensure the Action Agency consistently interprets 
and applies the relevant provisions of the ESA and regulations (50 CFR 
402), with the expectation that the Action Agency will reach the same 
conclusion as the Service.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: (1) The 
joint counterpart ESA section 7 regulations apply only to ESA section 7 
determinations made by one of the five Federal Action Agencies that 
implement the NFP; (2) the rule will only remove the requirement for 
the Action Agencies to conduct informal consultation with and obtain 
written concurrence from FWS or NMFS on those NFP actions they 
determine that are NLAA listed species or designated critical habitat; 
and (3) the regulations are designed to reduce potential economic 
burdens on the Services and Action Agencies by improving the efficiency 
of the process. Therefore, we certify that this action will not have a 
significant economic impact on a substantial number of small 
businesses, organizations, or governments pursuant to the RFA.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant action under Executive Order 12866, 
it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) These counterpart regulations will not ``significantly or 
uniquely'' affect small governments. A Small Government Agency Plan is 
not required. We expect that these counterpart regulations will not 
result in any significant additional expenditures.
    (b) These counterpart regulations will not produce a Federal 
mandate on State, local, or tribal governments or the private sector of 
$100 million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. These 
counterpart regulations impose no obligations on State, local, or 
tribal governments.

Takings

    In accordance with Executive Order 12630, these counterpart 
regulations do not have significant takings implications. These 
counterpart regulations pertain solely to ESA section 7 consultation 
coordination procedures, and the procedures have no impact on personal 
property rights.

Federalism

    In accordance with Executive Order 13132, these counterpart 
regulations do not have significant Federalism effects. A Federalism 
assessment is not required. In keeping with Department of the Interior 
and Commerce regulations under section 7 of the ESA, we coordinated 
development of these counterpart regulations with

[[Page 68264]]

appropriate resource agencies throughout the United States.

Civil Justice Reform

    In accordance with Executive Order 12988, this rule does not unduly 
burden the judicial system and meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We promulgate these counterpart regulations 
consistent with 50 CFR 402.04 and section 7 of the ESA.

Paperwork Reduction Act

    This rule would not impose any new requirements for collection of 
information that require approval by the OMB under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new 
record keeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. We may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB Control Number.

National Environmental Policy Act

    These counterpart regulations have been developed by FWS and NMFS, 
jointly with FS, BIA, BLM, and NPS according to 50 CFR 402.04. The FWS 
and NMFS are considered the lead Federal agencies for the preparation 
of this rule, pursuant to 40 CFR 1501. We have analyzed these 
counterpart regulations in accordance with the criteria of the National 
Environmental Policy Act (NEPA), the Department of the Interior Manual 
(318 DM 2.2(g) and 6.3(D)), and National Oceanic and Atmospheric 
Administration (NOAA) Administrative Order 216-6 and have determined, 
after preparation of an environmental assessment, that the action does 
not have any significant effects. A Finding Of No Significant Impact 
has been prepared.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the 
Department of the Interior's 512 DM 2, we understand that we must 
relate to recognized Federal Indian Tribes on a Government-to 
Government basis. These counterpart regulations do not directly affect 
Tribal resources. These counterpart regulations may have an indirect 
effect on Native American Tribes as the Bureau of Indian Affairs may, 
at its discretion, implement the procedures outlined in the counterpart 
regulations for those activities affecting Tribal resources that they 
may authorize, fund, or carry out under the NFP. The analysis that is 
conducted for determining how a proposed project affects listed species 
or critical habitat remains unchanged by these counterpart regulations. 
Therefore, tribal resources will be unaffected by implementation of 
this rule and government-to-government consultation is not necessary.

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Final Regulation Promulgation

0
For the reasons set forth in the preamble, the Service amends part 402, 
title 50 of the Code of Federal Regulations as follows:

PART 402--[AMENDED]

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

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

0
2. Add a new Subpart C to read as follows:
Subpart C--Counterpart Regulations For Implementing the National Fire 
Plan
Sec.
402.30 Definitions.
402.31 Purpose.
402.32 Scope.
402.33 Procedures.
402.34 Oversight.

Subpart C--Counterpart Regulations for Implementing the National 
Fire Plan


Sec.  402.30  Definitions.

    The definitions in Sec.  402.02 are applicable to this subpart. In 
addition, the following definitions are applicable only to this 
subpart.
    Action Agency refers to the Department of Agriculture Forest 
Service (FS) or the Department of the Interior Bureau of Indian Affairs 
(BIA), Bureau of Land Management (BLM), Fish and Wildlife Service 
(FWS), or National Park Service (NPS).
    Alternative Consultation Agreement (ACA) is the agreement described 
in Sec.  402.33 of this subpart.
    Fire Plan Project is an action determined by the Action Agency to 
be within the scope of the NFP as defined in this section.
    National Fire Plan (NFP) is the September 8, 2000, report to the 
President from the Departments of the Interior and Agriculture entitled 
``Managing the Impact of Wildfire on Communities and the Environment'' 
outlining a new approach to managing fires, together with the 
accompanying budget requests, strategies, plans, and direction, or any 
amendments thereto.
    Service Director refers to the FWS Director or the Assistant 
Administrator for Fisheries for the National Oceanic and Atmospheric 
Administration.


Sec.  402.31  Purpose.

    The purpose of these counterpart regulations is to enhance the 
efficiency and effectiveness of the consultation process under section 
7 of the ESA for Fire Plan Projects by providing an optional 
alternative to the procedures found in Sec. Sec.  402.13 and 402.14(b) 
of this part. These regulations permit an Action Agency to enter into 
an Alternative Consultation Agreement (ACA) with the Service, as 
described in Sec.  402.33, which will allow the Action Agency to 
determine that a Fire Plan Project is ``not likely to adversely 
affect'' (NLAA) a listed species or designated critical habitat without 
formal or informal consultation with the Service or written concurrence 
from the Service. An NLAA determination for a Fire Plan Project made 
under an ACA, as described in Sec.  402.33, completes the Action 
Agency's statutory obligation to consult with the Service for that 
Project. In situations where the Action Agency does not make an NLAA 
determination under the ACA, the Action Agency would still be required 
to conduct formal consultation with the Service when required by Sec.  
402.14. This process will be as protective to listed species and 
designated critical habitat as the process established in subpart B of 
this part. The standards and requirements for formal consultation under 
subpart B for Fire Plan Projects that do not receive an NLAA 
determination are unchanged.


Sec.  402.32  Scope.

    (a) Section 402.33 establishes a process by which an Action Agency 
may determine that a proposed Fire Plan Project is not likely to 
adversely affect any listed species or designated critical habitat 
without conducting formal or informal consultation or obtaining written 
concurrence from the Service.
    (b) Section 402.34 establishes the Service's oversight 
responsibility and the standard for review under this subpart.
    (c) Nothing in this subpart C precludes an Action Agency at its 
discretion from initiating early, informal, or formal consultation as 
described in Sec. Sec.  402.11, 402.13, and 402.14, respectively.
    (d) The authority granted in this subpart is applicable to an 
Action Agency only where the Action Agency

[[Page 68265]]

has entered into an ACA with the Service. An ACA entered into with one 
Service is valid with regard to listed species and designated critical 
habitat under the jurisdiction of that Service whether or not the 
Action Agency has entered into an ACA with the other Service.


Sec.  402.33  Procedures.

    (a) The Action Agency may make an NLAA determination for a Fire 
Plan Project without informal consultation or written concurrence from 
the Director if the Action Agency has entered into and implemented an 
ACA. The Action Agency need not initiate formal consultation on a Fire 
Plan Project if the Action Agency has made an NLAA determination for 
the Project under this subpart. The Action Agency and the Service will 
use the following procedures in establishing an ACA.
    (1) Initiation: The Action Agency submits a written notification to 
the Service Director of its intent to enter into an ACA.
    (2) Development and Adoption of the Alternative Consultation 
Agreement: The Action Agency enters into an ACA with the Service 
Director. The ACA will, at a minimum, include the following components:
    (i) A list or description of the staff positions within the Action 
Agency that will have authority to make NLAA determinations under this 
subpart C.
    (ii) Procedures for developing and maintaining the skills necessary 
within the Action Agency to make NLAA determinations, including a 
jointly developed training program based on the needs of the Action 
Agency.
    (iii) A description of the standards the Action Agency will apply 
in assessing the effects of the action, including direct and indirect 
effects of the action and effects of any actions that are interrelated 
or interdependent with the proposed action.
    (iv) Provisions for incorporating new information and newly listed 
species or designated critical habitat into the Action Agency's effects 
analysis of proposed actions.
    (v) A mutually agreed upon program for monitoring and periodic 
program evaluation to occur at the end of the first year following 
signature of the ACA and periodically thereafter.
    (vi) Provisions for the Action Agency to maintain a list of Fire 
Plan Projects for which the Action Agency has made NLAA determinations. 
The Action Agency will also maintain the necessary records to allow the 
Service to complete the periodic program evaluations.
    (3) Training: Upon completion of the ACA, the Action Agency and the 
Service will implement the training program outlined in the ACA to the 
mutual satisfaction of the Action Agency and the Service.
    (b) The Action Agency may, at its discretion, allow any subunit of 
the Action Agency to implement this subpart as soon as the subunit has 
fulfilled the training requirements of the ACA, upon written 
notification to the Service. The Action Agency shall at all times have 
responsibility for the adequacy of all NLAA determinations it makes 
under this subpart.
    (c) The ACA and any related oversight or monitoring reports shall 
be made available to the public through a notice of availability in the 
Federal Register.


Sec.  402.34  Oversight.

    (a) Through the periodic program evaluation set forth in the ACA, 
the Service will determine whether the implementation of this subpart 
by the Action Agency is consistent with the best available scientific 
and commercial information, the ESA, and section 7 regulations.
    (b) The Service Director may use the results of the periodic 
program evaluation described in the ACA to recommend changes to the 
Action Agency's implementation of the ACA. If and as appropriate, the 
Service Director may suspend any subunit participating in the ACA or 
exclude any subunit from the ACA.
    (c) The Service Director retains discretion to terminate the ACA if 
the Action Agency fails to comply with the requirements of this 
subpart, section 7 of the ESA, or the terms of the ACA. Termination, 
suspension, or modification of an ACA does not affect the validity of 
any NLAA determinations made previously under the authority of this 
subpart.

    Dated: November 26, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
    Dated: December 3, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 03-30393 Filed 12-5-03; 8:45 am]
BILLING CODE 3510-22-P; 4310-55-P