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


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[1018-AT50]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[0648-AX15]

50 CFR Part 402


Interagency Cooperation Under the Endangered Species Act

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary for 
Fish and Wildlife and Parks, 1849 C Street, NW., Washington, DC 20240; 
telephone: 202-208-4416; or James H. Lecky, Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910; telephone: 301-713-2332.

SUPPLEMENTARY INFORMATION: 

Background

    The Endangered Species Act of 1973, as amended (``ESA''; 16 U.S.C. 
1531 et seq.) provides that the Secretaries of the Interior and 
Commerce (the ``Secretaries'') share responsibilities for implementing 
most of the provisions of the ESA. Generally, marine species are under 
the jurisdiction of the Secretary of Commerce and all other species are 
under the jurisdiction of the Secretary of the Interior. Authority to 
administer the Act has been delegated by the Secretary of the Interior 
to the Director of the Fish and Wildlife Service and by the Secretary 
of Commerce through the Administrator of the National Oceanic and 
Atmospheric Administration to the Assistant Administrator for National 
Marine Fisheries Service.
    In this rule, we refer to the Fish and Wildlife Service as FWS and 
the National Marine Fisheries Service as NMFS. The word ``Services'' 
refers to both FWS and NMFS. We use the word ``Service'' when we 
describe a situation that could apply to either agency. We use the term 
``1986 regulations'' to reference the 1986 section 7 regulations found 
at 50 CFR Part 402.

Procedural Background

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

Changes From Proposed Rule in Responses to Comments

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

Definitions (Sec.  402.02)

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

Applicability--(Sec.  402.03)

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

Informal Consultation (Sec.  402.13)

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

Formal Consultation (Sec.  402.14)

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

[[Page 76273]]

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

General Comments

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


[[Page 76274]]


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

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

[[Page 76275]]

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

Proposed Changes to 50 CFR Part 402

Definitions (Sec.  402.02)

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

Biological Assessment

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

[[Page 76276]]

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

Effects of the Action

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

[[Page 76277]]

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

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

[[Page 76278]]

use requirements which appear to be economically viable.

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

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

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

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

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

[[Page 76279]]

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

Applicability (Sec.  402.03)

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

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

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

[[Page 76280]]

For example, the number of consultations completed by FWS doubled 
between fiscal year 1996 and fiscal year 2002. Although NMFS' workload 
has also increased significantly due to new listings and court 
decisions, it has not collected these statistics. As the number of 
section 7 consultations has increased, the workload for the Services 
has grown. For example, requests to the Services for technical 
assistance or section 7 consultations increased from 41,000 requests in 
1999 to over 68,000 requests in fiscal year 2006. In 2006, there were 
39,346 requests for technical assistance, 26,762 requests for informal 
consultations, and 1,936 requests for formal consultations.
    To meet these challenges, the Services have developed several 
carefully crafted and narrow categories of actions for which they 
believe case-by-case consultation would not be necessary or beneficial. 
The pre-existing ``may affect'' trigger for formal consultation is 
retained, except in the case of projects where no take is anticipated 
and the effects are: Wholly beneficial; or cannot be measured or 
detected in a manner that permits meaningful evaluation; or are 
manifested through global processes (and meet one of several additional 
criteria). The Services have determined that such actions are far 
removed from any potential for jeopardy or destruction or adverse 
modification of critical habitat, and consultation in these limited 
circumstances is therefore not required. In 1986, the Services 
recognized the key concern was to set thresholds for consultation 
(there speaking of formal consultation) that are ``sufficiently low to 
allow Federal agencies to satisfy their duty to `insure' under Section 
7(a)(2).'' 51 FR 199926. The applicability criteria established in the 
final rule do that. As noted, the action agencies already make no 
effect/may affect determinations without assistance from the Services. 
Clearly such actions do not violate the substantive standard of section 
7(a)(2). The Services have also determined that no further consultation 
and advice on specific actions is necessary for those agency actions 
that are wholly beneficial. Because of the threshold requirement that 
no take is anticipated and the requirement that the action be 
beneficial in its entirety, such actions also inherently are not likely 
to jeopardize listed species or adversely modify or destroy critical 
habitat. The threshold of no take being anticipated also applies for 
those effects that are so insignificant that they cannot be measured or 
detected in a manner that permits meaningful evaluation. These effects 
were previously determined to be ``not likely to adversely affect.'' 
Consultation Handbook, at XV. By definition, then these effects are not 
likely to adversely affect and cannot be likely to jeopardize listed 
species or adversely modify critical habitat and, therefore, no further 
consultation on the specific action is necessary. Finally, section 
402.03(b)(2) provides that effects that are manifested through global 
processes (and meet one or more of the additional criteria) do not 
require further consultation. As discussed in more detail below, the 
Services believe that section 7(a)(2) simply was not intended to deal 
with global processes at individual project level consultations. 
Further, the threshold requirement of no anticipated take and the 
additional criteria set out in 402.03(b)(2) limit the use of this 
subparagraph to only those effects from an action that would not be 
likely to jeopardize listed species.
    The Services' determination that case-by-case consultation is not 
necessary or beneficial in these instances is consistent with the 
latitude Congress has granted the Services to implement the procedural 
aspects of section 7(a)(2), including the development of appropriate 
triggers for case-by-case consultation. In addition, through this 
regulation we provide our advice and guidance to action agencies with 
regard to those narrow categories set out in section 402.03. Thus, we 
have determined that compliance with this rule by action agencies 
satisfies the procedural requirements of section 7(a)(2) for those 
narrow categories of actions set out in section 402.03. Moreover, the 
change from prior practice is an appropriate response to the burden of 
increased informal consultations.
    Comment: Some commenters asserted that all agency actions must 
undergo the process set out in the 1986 regulations as ``formal 
consultation.''
    Response: We disagree and conclude that these commenters read far 
more into section 7(a)(2) of the ESA than exists. Simply put, under 
section 7(a)(2), Federal agencies must insure their action ``is not 
likely to jeopardize the continued existence of any endangered species 
or threatened species,'' and the Services must provide expert advice 
and help (``consultation and assistance'') to the action agencies. The 
precise form and manner in which this expert advice and help is 
provided is not specifically prescribed by Congress; instead, the 
Services and action agencies can ``fine tune'' the regulations as 
appropriate.
    Moreover, such an assertion flies in the face of many years of 
agency practice. Indeed, a district court recently noted, ``the 
Services play no role whatsoever in that threshold determination.'' 
Defenders of Wildlife v. Kempthorne, at 60 (referencing the initial 
determination as to whether a proposed action `may affect' listed 
species or critical habitat). Since 1978, if an action agency concludes 
that a proposed action will have no effect on a listed species, it is 
under no obligation to consult with the Services.
    The Services have provided guidance to action agencies in the past 
with regard to when formal or informal consultation on specific actions 
is required. The 1986 regulations determined that action agencies need 
only consult on those actions that are ``discretionary.'' The statutory 
language found in section 7(a)(2) of the ESA does not make such an 
exception. Rather, the Services, by regulation, determined that neither 
formal nor informal consultation on specific actions was required for 
non-discretionary actions. The Supreme Court recently upheld the 
Services' determination that no further consultation is required once 
an agency determines that their action is non-discretionary. National 
Association of Home Builders v. Environmental Protection Agency, 127 S. 
Ct. 2518 (2007).
    The Services have also interpreted section 7(a)(2) to not require 
formal or informal consultation on specific actions for those instances 
when the action agency determines that its action will have ``no 
effect'' on listed species or critical habitat. Consultation Handbook, 
p. 3-12. Statutory language does not specifically make such an 
exception; rather, the determination that consultation is not necessary 
was made at the Secretaries' discretion. Since 1978, Federal agencies 
have been making their own determinations about whether a project would 
result in no effect to a listed species. The original section 7 
regulations issued in 1978 specified that ``[i]f a Federal agency 
decides that its activities or programs will not affect listed species 
or their habitat, consultation shall not be initiated unless required 
by the Service.'' 43 FR 870, 875 (January 4, 1978). Congress confirmed 
this regulatory approach when it reviewed, with approval, the 1978 
regulations when deliberating over the 1978 amendments to the ESA. See 
e.g. 1978 U.S.C.C.A.N. 9484, 9486. Later, in 1986, Congress had the 
ability to require section 7 consultation for each and every action 
carried out by a Federal action agency, but it chose not to make any 
changes to the section 7

[[Page 76281]]

consultation process in its amendments to the ESA in 1986. 51 FR at 
19,927.
    In summary, we do not believe section 7(a)(2) mandates Federal 
action agencies to undertake a separate ESA formal or informal 
consultation with the Services for each and every action they take. No 
definition of ``consultation'' is provided in section 7(a)(2) or 
elsewhere in the ESA. Congress left it to the Services to craft the 
consultation process, including the interpretation of the reach of the 
statute and the development of an appropriate trigger for formal and 
informal consultation. See Sweet Home v. Babbitt 515 U.S. 687, 708 
(1995). This interpretation is not new. As discussed above, the 
Services have already identified two situations where no further 
consultation on specific actions has been required once a threshold 
determination was met.
    Comment: Several commenters suggested that action agencies are not 
equipped to make their own determinations either because they lack the 
requisite expertise, lack funding, will not be able to find qualified 
reviewers, or do not have a mission compatible with resource 
protection.
    Response: The Services disagree that agencies with other missions 
are not equipped to make the determinations required to implement the 
new applicability provisions. Most major action agencies already have 
well-qualified staff that support their ESA compliance. And, agencies 
regularly make their own consultation determinations on a number of 
issues under the 1986 regulations. As under the 1986 regulations, this 
rule does not preclude an action agency from seeking the expertise of 
the Services or taking advantage of expertise that may be available 
from State or local agencies, universities, non-governmental 
organizations or other sources, which often work cooperatively with 
Federal agencies on species conservation matters. Finally, nothing in 
the applicability section requires that action agencies bypass informal 
consultation. If action agencies have any limitations in their ability 
to make their determinations under the ESA, the rule explicitly 
recognizes that the action agencies retain the ability to seek informal 
consultation with the Services. If an action agency believes that it 
does not have the scientific expertise to make an accurate assessment 
of its project's impacts on listed species and critical habitat, it may 
avail itself of the expertise offered by the Services under the current 
regulatory procedures.
    In this regard, we note that the final rule represents an 
incremental change regarding the extent to which the action agencies 
will make their own determinations about the effects of their actions 
on listed species. Under the 1986 regulations, and continuing under 
this rule, action agencies presently are responsible for determining if 
their action may affect listed species and critical habitat. They need 
not engage in case-by-case consultation where they determine that the 
proposed action will have no effect on listed species. The final rule 
adds several narrow additional categories in which they will also not 
need to consult case-by-case where they determine that their actions 
will not result in take and satisfy the criteria in 402.03(b).
    The types of actions that we believe will fall into the ``wholly 
beneficial'' or incapable of meaningful evaluation categories are ones 
for which we have routinely concurred on action agency NLAA 
determinations in the past. For example, these have included, but are 
not limited to:

    Construction, maintenance or repair of small-scale bulkheads, 
docks, piers and boat ramps; Small-scale shoreline or streambank 
stabilization projects; Routine bridge repair and maintenance; 
Construction, maintenance or repair or replacement of culverts and 
tide gates; Construction, maintenance and repair of aids to 
navigation, e.g., buoys and moorings.

    We have engaged in many thousands of informal consultation on these 
types of activities over the past thirty years. We have routinely 
agreed with the action agencies' conclusions (supported by their 
biologists' opinions) that the projects are not likely to adversely 
affect the species because the actions will occur at a time when listed 
species are not present and habitat will not be affected or will 
recover prior to species returning to the area, or they enhance the 
biological value of the habitat without any short term risk to species 
or harm to the habitat. Also, based on years of consulting informally, 
many agencies have developed best management practices for these types 
of actions to ensure adverse effects are avoided. Based on this lengthy 
experience, we believe that action agencies are well equipped to make 
and document appropriate determinations under the applicability 
provisions.
    As a legal matter, action agencies cannot assert that lack of 
resources or that contrary missions excuse them from compliance with 
their ESA obligations. Indeed, the action agencies have a strong 
incentive to ensure that they are equipped to make appropriate 
determinations. If they fail to do so, they will be subject to lawsuits 
challenging those determinations and their actions could be delayed or 
enjoined.
    Comment: Several commenters pointed to the report from the Healthy 
Forest Counterpart regulations to support the assertion that action 
agencies will not make credible effects determinations.
    Response: We do not agree that this report requires such a 
conclusion. In our view this report demonstrates the importance of 
action agencies developing administrative records that demonstrate the 
soundness of their conclusions with respect to the potential effects of 
a project and reflect the information available to them.
    Comments: Several other commenters believe that there needs to be 
an ``oversight'' role for the Services. One commenter believed that 
action agencies needed to set up internal procedures to assure funding 
for biologists and to require an independent decision-maker. Another 
commenter suggested that action agencies should enter into alternate 
consultation procedures with the Services to suit their individual 
needs. Several commenters believed the Services should offer guidance 
to the action agencies as to how to make effects determinations.
    Response: The Services have determined that a formal oversight 
process is not necessary or consistent with the purposes of this rule. 
The objective of this rule, in part, is to provide for a more efficient 
process for certain very narrow situations where the Services have 
determined no further consultation on specific actions is necessary or 
beneficial, as discussed above. Action agencies, however, can create 
any internal procedures they deem necessary to establish a credible 
administrative record to support their determinations. Further, nothing 
in this rule prevents action agencies from entering into agreements or 
promulgating counterpart regulations with the Services. Finally, the 
Services do offer training courses on section 7, which have been well-
attended by action agency personnel. And, the Services' Consultation 
Handbook is available for guidance.
    Comment: Several commenters questioned how ``contested 
determinations'' among agencies would be resolved. Another commenter 
noted there was no mechanism for the Services to ``overturn'' an 
incorrect determination made by an action agency.
    Response: It is not clear what is meant by ``contested 
determinations.'' Currently, there is no mechanism for the Services to 
``overturn'' decisions made by action agencies. The Services can 
exercise, and have exercised, their authority under 402.14(a) to 
request that

[[Page 76282]]

an action agency consult on an agency action. This option continues to 
be available to the Services.
    Comment: Some commenters questioned how the rule will impact 
applicants.
    Response: This rule does not affect the level of involvement an 
applicant may have either before or during informal consultation or 
formal consultation, except to the extent any applicant must agree to 
the extension of informal consultation beyond 120 days. Action agencies 
may involve applicants to any extent they choose, beyond the minimum 
requirements for applicant involvement established in the 1986 
regulations.
    Comment: Other commenters noted that action agencies already may 
face an increased litigation risk if they make determinations under the 
applicability section of this rule.
    Response: As discussed above, action agencies already have a 
potential litigation risk when making the ``no effect'' determination 
as well as the ultimate liability with regard to jeopardy and adverse 
modification. Action agencies that determine that an action fits under 
the applicability section of this rule and forgo informal consultation 
on that basis should, as appropriate, develop an administrative record 
that supports the determination and should be prepared to defend it.
    Comment: Some commenters believe this regulation will reduce 
collaboration between the action agencies and the Services, which they 
believe could result in an increase in adverse effects to listed 
species.
    Response: In light of the narrow provisions set out in the 
applicability section, it is difficult to surmise when there would be 
likely adverse effects that would not be subject to formal consultation 
under this rule. Further, nothing in this rule prevents action agencies 
from consulting with the Services informally. Nor does this rule change 
an action agency's obligation to consult formally if there are likely 
to be adverse effects to listed species or critical habitat. Typically, 
in those consultations, the action agency and the Services collaborate 
to reduce impacts.
    Comment: Several commenters questioned how this rule would impact 
listed plants and some believed the applicability section (402.03) of 
this rule would lessen protection for listed plants.
    Response: This rule does not lessen protections for plants. The 
applicability section of this final rule sets a threshold for an off-
ramp from consultation whereby no take is anticipated to result from 
the agency action. The ESA defines take to include ``harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect any listed 
species.'' While some of these terms are more appropriate to listed 
wildlife, many of them would apply to plants. We recognize that take of 
listed plants is not prohibited under section 9 of the ESA; 
nevertheless, under section 7(a)(2) and the regulations, Federal 
agencies are still responsible for assessing whether their actions are 
likely to adversely affect (which may include take) listed plant 
species. Under this rule, even once the threshold of ``no take is 
anticipated'' has been met, the action agency must still demonstrate 
that its action is either wholly beneficial to listed plants, will have 
no effect on listed plants, or will have effects that are so 
insignificant they cannot be measured or detected in a manner that 
would permit meaningful evaluation of those effects. If the effect will 
be manifested through global processes, the remaining conditions set 
out in paragraph (b)(2) must also be met. Nothing in this rule changes 
the manner in which plants are dealt with in informal or formal 
consultation; listed plants, therefore, will continue to be protected 
under this rule.
Paragraph (b)(1)--No Effects
    Comment: Several commenters agreed that the rule should formalize 
the long-standing practice of the Services to not require consultation 
on ``no effects'' determinations made by action agencies. On the other 
hand, a few commenters thought consultation was required even for ``no 
effects.''
    Response: As discussed above, case-by-case consultation is not 
required on every action taken by an action agency. Paragraph 
402.03(b)(1) of the rule makes explicit the guidance to the action 
agencies inherent in the 1986 regulations that no consultation is 
required in those instances when an action poses no effects to listed 
species or critical habitat. We determined that consultation is not 
required because an action that has no effect on listed species or 
critical habitat inherently meets the section 7(a)(2) statutory 
requirement that agencies ensure their actions are not likely to 
jeopardize a listed species or adversely modify or destroy critical 
habitat. Moreover, requiring consultation when an action is determined 
to have no effect on listed species or critical habitat is an 
unnecessary diversion of scarce resources.
Paragraph (b)(2)--Insignificant Contributor
    Comment: Many commenters were troubled by paragraph 402.03(b)(2) as 
set out in the proposed rule. The proposed rule stated that 
consultation was not required when no take was anticipated and ``such 
action is an insignificant contributor to any effects on a listed 
species or critical habitat.'' Some commenters were concerned how broad 
the language appeared and that it would be used to avoid reviewing 
effects that were simply ``not significant.''
    Response: After considering those comments, we determined that this 
portion of the rule should be revised. Accordingly, paragraph 
402.03(b)(2) now is limited in scope to those effects that are 
``manifested through global processes'' and: (i) The effects cannot be 
reliably predicted or measured at the scale of a listed species' 
current range; or (ii) would result at most in a small, insignificant 
impact on a listed species or critical habitat; or (iii) are such that 
the potential risk of harm to a listed species or critical habitat is 
remote.
    We have revised section 402.03(b)(2) to establish a very narrow 
applicability exception to consultation for certain effects that are 
manifested through ``global processes.'' This exception would apply 
where the effects of an action are manifested through such processes 
and at least one of the following applies: The effects cannot be 
reliably predicted or measured at the scale of a listed species' 
current range; or the effects would result at most in an extremely 
small, insignificant impact on a listed species or critical habitat; or 
the effects are such that the potential risk of harm to a listed 
species or critical habitat is remote. The phrase ``manifested through 
global processes'' covers those effects that are the result of a 
specific source but become well mixed and diffused at the global scale 
such that they lose their individual identity. The combined effect of 
any particular source and other sources then becomes a potential 
contributor to a separate phenomenon with possible global impacts. 
Typically, however, the contribution of any particular source to the 
global process that then affects the local environment is very, very 
small. The most topical example of effects that would be manifested 
only through a global process is the effects of individual sources of 
greenhouse gas emissions and their contribution to global climate 
change and warming. ``Manifested through global processes'' does not 
refer to effects that can be evaluated for the immediate effects on

[[Page 76283]]

the surrounding area caused by their primary physical and chemical 
characteristics. In that context, they would be traced and measured to 
the extent possible. It is also possible that an action might have some 
effects that are manifested through global processes and others that 
are not. In this case, consultation would be required with respect to 
those other effects, but under revised section 402.03(c) consultation 
would not be required with respect to those effects manifested through 
global processes, provided at least one of the other criteria of 
section 402.03(b)(2) is met. These revisions reflect our conclusion 
that section 7(a)(2) is not an appropriate or effective mechanism to 
assess individual Federal actions as they relate to global issues such 
as global climate change and warming. We do not believe that Congress 
designed or intended the ESA to be utilized as a tool to regulate 
global processes, nor is it appropriate to hold an agency responsible 
for global processes.
    Comment: Some commenters questioned why it was appropriate to 
exclude effects that contribute to climate change.
    Response: This very narrow type of effect is generally beyond the 
scope of section 7(a)(2) because of the inability to separate out the 
effect of a specific Federal action from a multitude of other factors 
that contribute through global processes. In addition, the case-by-case 
consultation on specific effects that would fall under this provision 
would not be necessary or beneficial. As discussed above, the exclusion 
applies only to those effects that lose their individual identity and 
only produce the potential to have an impact when they combine with 
other factors through a global process.
    Even after the threshold of the effect being manifested through 
global processes, there are other limiting factors. The effects under 
this section must also be of such a nature that they cannot be reliably 
predicted or measured at the scale of a listed species' current range 
or would result at most in a small, insignificant impact on a listed 
species or critical habitat, or are of the nature that the potential 
risk of harm to a listed species or critical habitat is remote. In the 
context of greenhouse gases, current models, though capable of 
quantifying the contribution to changes in global atmospheric 
greenhouse gas concentrations and temperature, do not allow us to 
quantitatively link an individual action to localized climate impacts 
relevant to consultation. However, based on the best scientific 
information available, we are presently able to conclude that the 
impacts of a particular source are likely to be extremely small. For 
example, in a recent exchange of letters, EPA provided a model-based 
analysis that projected that even the emissions of a very large coal-
fired power plant would likely result in a rise in the maximum global 
mean temperature of less than one-thousandth of a degree.
    Finally, to attempt to regulate effects at a global scale would 
have the untenable consequence of transforming the ``action area'' for 
consultation into the globe itself, which would eviscerate any 
meaningful limit on the concept of ``action area'' and defy analysis. 
The concept of ``action area,'' as established in the 1986 regulations 
and unchanged by this rule, is an important and necessary tool to keep 
consultations manageable and tied to the particular action under 
consultation. In a global context, the concept of ``action area'' would 
be rendered meaningless.
    Comment: Several commenters asked for a further explanation of 
``remote''. One commenter suggested that we clarify that remote applies 
to effects that are remote ``in time, space, or in probability of 
occurrence.''
    Response: This comment was originally submitted with regard to 
paragraph 402.03(b)(3)(iii), which has been withdrawn, but we will 
respond because of the use of the word ``remote'' in paragraph 
402.03(b)(2). We agree with the commenter that remote can qualify an 
effect with regard to time, space, or in probability of occurrence, 
among other things.
    Comment: Some commenters expressed concern that this regulation 
would prevent review of climate change in all consultations, even when 
the best available science indicates that climate change may impact a 
species.
    Response: Paragraph (b)(2) is intended to deal with effects that 
are manifested through a global process. For example, under this 
paragraph consultation would not be required for actions involving the 
emission of greenhouse gases so long as they met the threshold of no 
anticipated take and one of the three criteria specified in paragraph 
(b)(2). This paragraph does not preclude the appropriate consideration 
of climate change, generally, for purposes of establishing the 
environmental baseline and the status of the species in the action 
area. For example, if, based upon the best available information it is 
determined that an action area will face a different precipitation 
pattern than it had experienced in the past (from the effects of 
climate change overall rather than from the project under consultation) 
that information would be appropriately evaluated for purposes of 
establishing the environmental baseline.
Paragraph (b)(3)
    The proposed regulation set out three types of effects that would 
not require consultation: Those effects that are wholly beneficial, 
those effects that are ``not capable of being meaningfully identified 
or detected in a manner that permits evaluation,'' and those effects 
for which the ``potential risk of jeopardy to the listed species or 
adverse modification or destruction of the critical habitat is 
remote.''
    Comment: There were limited comments on the concept of ``wholly 
beneficial'' as set out in paragraph (b)(3)(ii). One commenter 
acknowledged that it would be a waste of time and resources to consult 
on such an action, but stated the ESA would still require it. One 
commenter preferred the words ``clearly beneficial.''
    Response: As discussed above, we disagree that the ESA requires 
consultation on every action taken by an action agency. The final rule 
continues the use of the words ``wholly beneficial'' to establish 
clearly that the action can have no adverse effects on listed species 
or habitat in order to be deemed ``wholly beneficial.'' This 
subparagraph does not allow a balancing of beneficial against 
detrimental. We believe the term ``wholly beneficial'' better captures 
that concept than ``clearly beneficial.'' Further this language tracks 
language in the Consultation Handbook, which defined ``beneficial 
effects'' as effects that are ``contemporaneous positive effects 
without any adverse effects to the species.'' We believe that no 
consultation is required for these effects because there is no question 
that an action agency can ensure that its action does not violate 
section 7(a)(2) with effects that are wholly beneficial.
    Comment: Some commenters objected to proposed rule paragraph 
(b)(3)(i), which does not require further consultation on effects that 
are ``not capable of being meaningfully identified or detected in a 
manner that permits evaluation.''
    Response: After review of several comments, we concluded that the 
language set out in the proposed rule should be amended to better 
reflect the language contained in the Consultation Handbook. We made 
two technical changes to lend more precision to this applicability 
criterion. First, we changed the term ``identified'' to ``measured.'' 
The terms ``identified'' and ``detected'' are so similar in meaning 
that using both terms diminished the clarity of the provision. The term 
``measured,'' however, is clearly distinct

[[Page 76284]]

and provides an independent basis for examining whether an effect is 
suitable for consultation. The second change we made was to move the 
word ``meaningfully'' to the end of the sentence to modify 
``evaluated.'' If an effect cannot be measured or detected in a manner 
that permits meaningful evaluation, we do not think consultation is 
beneficial or necessary.
    We think the language in this rule captures the intent of language 
used to describe insignificant effects as defined in the Consultation 
Handbook under ``is not likely to adversely affect.'' That language 
reads, ``Based on best judgment, a person would not: (1) Be able to 
meaningfully measure, detect, or evaluate'' such effects. We think 
these effects were properly excluded from formal consultation by the 
determination that they were ``not likely to adversely affect.'' 
Consultation Handbook, p. xv. If an effect cannot be measured or 
detected to the point that it cannot be meaningfully evaluated, there 
is simply no point in requiring consultation on such an effect. We 
believe they are properly placed in the category of effects that do not 
require consultation once a determination has been made that no take is 
anticipated and any effects satisfy the criterion of section 
402.03(b)(3)(i). However, this provision is not meant to suggest that 
consultation is not required merely because the predicted effect of an 
action is small in magnitude. Even though the magnitude of an effect is 
small, if the effects on the environment can be measured or detected in 
a manner that permits meaningful evaluation, then informal consultation 
may be necessary.
    Comment: Many commenters objected to the language set out in the 
proposed rule at paragraph (b)(3)(iii) that consultation was not 
required for those effects that ``are such that the potential risk of 
jeopardy to the listed species or adverse modification or destruction 
of the critical habitat is remote.'' Primarily, the commenters thought 
this required or allowed action agencies to make a jeopardy 
determination, without consultation with the Services. Several 
commenters asked for clarification of the difference between 
``potential risk of jeopardy'' with the jeopardy determination made as 
part of formal consultation. Another commenter noted that they did not 
see how this evaluation meshed with the threshold requirement for this 
entire paragraph that no take is anticipated.
    Response: After considering the comments, we decided to remove 
paragraph (b)(3)(iii) from the final rule. Although, as discussed 
above, we have incorporated the concept of ``remoteness'' in the 
specialized global processes exception (402.03(b)(2)), we have delinked 
it from the statutory jeopardy standard.

Informal Consultation (Sec.  402.13)

    A sentence was added to the end of paragraph 402.13(b) to explain 
when consultation has been satisfied. A new paragraph, 402.13(c), was 
added to establish that consultations, by mutual agreement, could be 
extended beyond the 120 day time period.
    Comment: Several commenters expressed concerns about the new time 
frames for informal consultation and the provision that allows action 
agencies to terminate informal consultation. One commenter stated that 
the provisions to allow up to 120 days for informal consultation are 
not authorized by law. Other comments stated that the new time line 
allows action agencies to terminate informal consultation and move 
forward with the project without Service concurrence, which seriously 
weakens the consultation process, and that the proposed deadline for 
informal consultation is arbitrary and counterproductive. Other 
commenters supported the proposed establishment of a time limit for 
informal consultation as appropriate.
    Response: The ESA does not require an informal consultation 
procedure. Rather, the informal consultation process as it has been 
implemented was created by regulation as part of the mechanism for 
streamlining consultations when an action agency does not need an 
incidental take statement and the effects are not expected to be 
adverse. The Services retain the authority to adapt the procedure based 
on their experience with implementation. Experience has shown that 
under the existing regulations informal consultations can be prolonged, 
sometimes lasting longer than formal consultations. This delay affects 
the action agencies' execution of their actions and fulfillment of 
their missions. Adding a time frame to this process is expected to 
contribute to achieving the efficiencies that were anticipated when the 
concept of informal consultation was introduced. The sixty-day period 
we have added (with a sixty-day extension) emphasizes the need for the 
Services to conduct timely review of requests for informal consultation 
and provides the Services an adequate opportunity to raise any concerns 
they may have. At the same time, the time frames provide action 
agencies with greater certainty by allowing them to terminate 
consultation and move forward after an established time. However, the 
action agency may move forward with the action only if the action 
agency concludes that the action will not result in take and is not 
likely to adversely affect listed species or critical habitat.
    Comment: The proposed regulations fail to provide for at least a 
pro forma written opinion of the Secretary, which is contrary to the 
statutory duty.
    Response: Section 7(b)(3) requires that ``[p]romptly after 
conclusion of consultation'' under either section 7(a)(2) or (3), ``the 
Secretary shall provide to the Federal agency and applicant, if any, a 
written statement setting forth the Secretary's opinion.'' Under the 
1986 regulations, the Services provide a biological opinion only after 
formal consultation. This rule does not change that requirement. We 
assume that the commenter refers to the concurrence letter in the 
informal consultation process as a pro forma written opinion of the 
Secretary. Although the Services expect that in many cases informal 
consultation will conclude in a letter of concurrence or a request for 
formal consultation, the final rule permits action agencies to move 
forward without one. Neither informal consultation nor concurrence with 
``not likely to adversely affect'' determinations are set forth in the 
ESA. The Services are exercising their discretion under the ESA by 
concluding that in certain narrow circumstances a written statement 
from the Services is neither required nor beneficial.
    Comment: Revise the proposed section 402.13(b) to clearly state 
that termination means that the action agency has fulfilled its 
procedural obligation to consult with the Services.
    Response: The Services have modified the proposed text to clarify 
that if the action agency terminates consultation at the end of the 
sixty-day period established under section 402.13(b) (or the end of an 
extension pursuant to that section), or if the appropriate period has 
expired without a written statement from the Service, the action agency 
will be considered to have satisfied its procedural duty to consult 
under section 7(a)(2) of the ESA. However, we have also added a 
provision to the final rule to clarify that the Service, the action 
agency, and the applicant, if any, may agree to extend informal 
consultation for a specified period of time. This provision will allow 
the relevant parties to continue informal consultation in situations 
where progress has been made so that the Service's written concurrence 
will still be a possible outcome. Because the purpose of the time limit 
is to expedite informal consultation, we expect that extensions beyond 
120 days will be rare.

[[Page 76285]]

    Comment: The requirement to consult when the action agency is 
unable to find that its action is ``not likely to adversely affect'' a 
species has not changed.
    Response: We agree, in this circumstance the Federal agency would 
proceed to formal consultation.
    Comment: Some comments supported the use of informal consultation 
for review of batched, similar, or grouped actions.
    Response: We agree this is appropriate provided that the group of 
actions or batched actions meet the threshold criterion of ``no take is 
anticipated.''
    Comment: Several commenters questioned what the implications are if 
an action agency chooses to proceed without a concurrence from the 
Services.
    Response: In the final rule the Services have clarified that a 
Federal agency may consider lack of a response at the end of 60 days 
(unless extended by the Services to 120 days) as satisfying their 
procedural obligations under 7(a)(2). The action agency can choose to 
proceed with the action. The Services have determined that this 
approach has little risk of adverse affect on species, because the 
threshold requirement of informal consultation is that no take is 
expected to occur and because the Service has ample opportunity in 60 
or 120 days to raise issues with the action agency if adverse effects 
are likely and move the action into formal consultation.
    Comment: Several commenters noted that it is sometimes helpful to 
have extended informal consultations that allow the action agencies and 
the Services to work together to lessen impacts to species and critical 
habitat. Some of those commenters requested additional language be 
added to clarify that consultations could proceed past 120 days.
    Response: The Services also have considered that circumstances may 
arise in which the informal consultation is proceeding but is not 
likely to conclude in 120 days. If the action agency wishes to continue 
informal consultation, then Services may agree with the action agency 
on an extension, provided the applicant also agrees. Although the 
Services have incorporated this provision into the regulation, as noted 
above, we expect that it will be rarely utilized.
    We also note that the Services may indicate that they do not concur 
when they have not been provided adequate information to consider the 
action agency's not likely to adversely affect determination. In such 
circumstances, the Services should specify in detail the supplemental 
information they think is necessary to consider the action agency's 
determination.

Formal Consultation (Sec.  402.14)

    We made a minor change to this section to reflect changes in the 
informal consultation section of the rule. Specifically, we changed the 
``exception'' language in Sec.  402.14 to note that informal 
consultation may be concluded without the written concurrence of the 
Director under the circumstances in Sec.  402.13(b).
    Comment: Some commenters thought that the exception language in 
402.14 appeared to require formal consultation even when the action 
agency chooses to conclude consultation.
    Response: We agree that there could be some confusion as to whether 
formal consultation was required when an action agency chooses to 
conclude consultation without receiving a concurrence from the 
Services. We think the rule makes it clear that under those 
circumstances, consultation under section 7(a)(2) is satisfied.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    Executive Order 12866 requires Federal agencies to submit proposed 
and final significant rules to the Office of Management and Budget 
(OMB) prior to publication in the FR. The EO defines a rule as 
significant if it meets one of the following four criteria:
    (a) The rule will have an annual effect of $100 million or more on 
the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government;
    (b) The rule will create inconsistencies with other Federal 
agencies' actions;
    (c) The rule will materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients; 
or
    (d) The rule raises novel legal or policy issues.
    If the rule meets criteria (a) above, it is called an 
``economically significant'' rule and additional requirements apply. It 
has been determined that this rule is ``significant'' but not 
``economically significant.'' It was submitted to OMB for review prior 
to promulgation.

Regulatory Flexibility Act

    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, the Secretaries of the 
Interior and Commerce certify that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
This rule applies only to Federal agencies and does not regulate, 
either directly or indirectly, any small entities.

Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2), Subpart E of 
the Small Business Regulatory Enforcement Fairness Act, also known as 
the Congressional Review Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more;
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions;
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    As discussed above, this rule makes narrow changes to the section 7 
consultation process. As such, the impacts are relatively narrow and 
limited to the Federal action agencies. A copy of the rule and required 
supporting documentation will be provided to the Comptroller General 
and both Houses of Congress before the rule goes into effect.

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. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. The rule 
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.

[[Page 76286]]

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

    In accordance with the Unfunded Mandates Reform Act:
    (1) The rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. We expect 
that these regulations will not result in any significant additional 
expenditure by entities that develop formalized conservation efforts.
    (2) The rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of $100 million or greater in 
any year; and so is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act. The rule imposes no obligations on State, 
local, or tribal governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. The rule has no impact on personal 
property rights. A takings implication assessment is not required.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism Assessment is not 
required.

Civil Justice Reform

    In accordance with Executive Order 12988, this rule does not unduly 
burden the judicial systems and meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We promulgate this rule consistent with the 
Executive Order.

Paperwork Reduction Act

    This rule will 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 
recordkeeping 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.

Data Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. In compliance with the 
requirements of the National Environmental Policy Act of 1969 (NEPA), 
and the Council on Environmental Quality's regulation for implementing 
NEPA (40 CFR 1500-1508), we published the availability of a draft 
environmental assessment on October 27, 2008 (73 FR 63667), followed by 
a 10-day comment period. The final environmental assessment is 
available to the public (see ADDRESSES). The action falls within the 
scope of the final environmental assessment and accompanying Finding of 
No Significant Impact. The FWS and NMFS are considered the lead Federal 
agencies for the preparation of this rule, pursuant to 40 CFR part 
1501.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and 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. 1315; 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. The rule 
applies only to Federal agencies, not to Indian Tribes. To the extent 
that Federal actions requiring consultation may indirectly affect the 
Tribes, the rule is intended only to streamline the administration of 
the ESA and clarify definitions; the rule does not change any 
substantive requirements concerning protections of listed species or 
critical habitat. Any indirect effect to Tribes, therefore, would be 
minimal.

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

    Dated: November 26, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

    Dated: November 26, 2008.
Samuel D. Rauch,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration.

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

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

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

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


0
2. In Sec.  402.02 revise the definitions for ``Biological 
assessment,'' ``Cumulative effects,'' and ``Effects of the action'' to 
read as follows:


Sec.  402.02  Definitions.

* * * * *
    Biological assessment means the information prepared by or under 
the direction of the Federal agency concerning listed and proposed 
species and designated and proposed critical habitat that may be 
present in the action area and the evaluation of potential effects of 
the action on such species and habitat. A biological assessment may be 
a document prepared for the sole purpose of interagency consultation, 
or it may be a document or documents prepared for other purposes (e.g., 
an environmental assessment or environmental impact statement) 
containing the information required to initiate consultation. The 
Federal agency is required to provide the Services a specific guide or 
statement as to the location of the relevant consultation information, 
as described in Sec.  402.14, in any alternative document submitted in 
lieu of a biological assessment.
* * * * *
    Cumulative effects means those effects of future State or private 
activities, not involving Federal activities, that are reasonably 
certain to occur within the action area of the particular Federal 
action subject to consultation. Cumulative effects do not include 
future Federal activities that are physically located within the action 
area of the particular Federal action under consultation.
* * * * *
    Effects of the action means the direct and indirect effects of an 
action on the species or critical habitat, together with the effects of 
other activities that are interrelated or interdependent with that 
action that will be added to the environmental baseline. The 
environmental baseline includes the past and present impacts of all 
Federal, State, or private actions and other human activities in the 
action area, the anticipated impacts of all proposed Federal projects 
in the action area that have already undergone formal or early section 
7 consultation, and the impact of State or private actions which are 
contemporaneous with the consultation

[[Page 76287]]

in process. Direct effects are the immediate effects of the action and 
are not dependent on the occurrence of any additional intervening 
actions for the impacts to species or critical habitat to occur. 
Indirect effects are those for which the proposed action is an 
essential cause, and that are later in time, but still are reasonably 
certain to occur. If an effect will occur whether or not the action 
takes place, the action is not an essential cause of the indirect 
effect. Reasonably certain to occur is the standard used to determine 
the requisite confidence that an effect will happen. A conclusion that 
an effect is reasonably certain to occur must be based on clear and 
substantial information. Interrelated actions are those that are part 
of a larger action and depend on the larger action for their 
justification. Interdependent actions are those that have no 
independent utility apart from the action under consideration.
* * * * *

0
3. Revise Sec.  402.03 to read as follows:


Sec.  402.03  Applicability.

    (a) Section 7 of the Act and the requirements of this part apply to 
all actions in which the Federal agency has discretionary involvement 
or control.
    (b) Federal agencies are not required to consult on an action when 
the direct and indirect effects of that action are not anticipated to 
result in take and:
    (1) Such action has no effect on a listed species or critical 
habitat; or
    (2) The effects of such action are manifested through global 
processes and:
    (i) Cannot be reliably predicted or measured at the scale of a 
listed species' current range, or
    (ii) Would result at most in an extremely small, insignificant 
impact on a listed species or critical habitat, or
    (iii) Are such that the potential risk of harm to a listed species 
or critical habitat is remote; or
    (3) The effects of such action on a listed species or critical 
habitat:
    (i) Are not capable of being measured or detected in a manner that 
permits meaningful evaluation; or
    (ii) Are wholly beneficial.
    (c) If all of the effects of an action fall within paragraph (b) of 
this section, then no consultation is required for the action. If one 
or more but not all of the effects of an action fall within paragraph 
(b) of this section, then consultation is required only for those 
effects of the action that do not fall within paragraph (b) of this 
section.

0
4. Revise Sec.  402.13 to read as follows:


Sec.  402.13  Informal consultation.

    (a) Informal consultation is an optional process that includes all 
discussions, correspondence, etc., between the Service and the Federal 
agency or the designated non-Federal representative, designed to assist 
the Federal agency in determining whether formal consultation or a 
conference is required. If during informal consultation it is 
determined by the Federal agency that the action, or a number of 
similar actions, an agency program, or a segment of a comprehensive 
plan, is not likely to adversely affect listed species or critical 
habitat, the consultation process is terminated, and no further action 
is necessary, if the Service concurs in writing. For all requests for 
informal consultation, the Federal agency shall consider the effects of 
the action as a whole on all listed species and critical habitats.
    (b) If the Service has not provided a written statement regarding 
whether it concurs with a Federal agency's determination provided for 
in paragraph (a) of this section within 60 days following the date of 
the Federal agency's request for concurrence the Federal agency may, 
upon written notice to the Service, terminate consultation. The Service 
may, upon written notice to the Federal agency within the 60-day 
period, extend the time for informal consultation for a period no 
greater than an additional 60 days from the end of the 60-day period. 
If the Federal agency terminates consultation at the end of the 60-day 
period, or if the Service's extension period expires without a written 
statement whether it concurs with a Federal agency's determination 
provided for in paragraph (a) of this section, the consultation 
provision in section 7(a)(2) is satisfied.
    (c) Notwithstanding the provisions of paragraph (b) of this 
section, the Service, the Federal agency, and the applicant, if one is 
involved, may agree to extend informal consultation for a specific time 
period.
    (d) During informal consultation, the Service may suggest 
modifications to the action that the Federal agency and any applicant 
could implement to avoid the likelihood of adverse effects to listed 
species or critical habitat.

0
5. In Sec.  402.14 revise paragraphs (a) and (b)(1) to read as follows:


Sec.  402.14  Formal consultation.

    (a) Requirement for formal consultation. Each Federal agency shall 
review its actions at the earliest possible time to determine whether 
any action may affect listed species or critical habitat.
    If such a determination is made, formal consultation is required, 
except as noted in paragraph (b) of this section. The Director may 
request a Federal agency to enter into consultation if he identifies 
any action of that agency that may affect listed species or critical 
habitat and for which there has been no consultation. When such a 
request is made, the Director shall forward to the Federal agency a 
written explanation of the basis for the request.
    (b) Exceptions. (1) A Federal agency need not initiate formal 
consultation if, as a result of the preparation of a biological 
assessment under Sec.  402.12 or as a result of informal consultation 
with the Service under Sec.  402.13, the Federal agency determines that 
the proposed action is not likely to adversely affect any listed 
species or critical habitat, and the Director concurs in writing or 
informal consultation has been completed under Sec.  402.13(b) without 
a written statement by the Service as to whether it concurs;
* * * * *
 [FR Doc. E8-29701 Filed 12-15-08; 8:45 am]
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