[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Proposed Rules]
[Pages 40753-40764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13054]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. FWS-HQ-ES-2021-0104; FXES1114090FEDR-234-FF09E300000; 
Docket No. NMFS-230607-0143]
RIN 1018-BF96; 0648-BK48


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

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

ACTION: Proposed rule; request for comment.

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SUMMARY: We, FWS and NMFS (collectively referred to as the ``Services'' 
or ``we''), propose to amend portions of our regulations that implement 
section 7 of the Endangered Species Act of 1973, as amended. The 
Services are proposing these changes to further clarify and improve the 
interagency consultation processes, while continuing to provide for the 
conservation of listed species.

DATES: We will accept comments from all interested parties until August 
21, 2023. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES below), the deadline for submitting an electronic 
comment is 11:59 p.m. eastern time on that date.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-0104, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment.''

[[Page 40754]]

    By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-HQ-ES-2021-0104; U.S. Fish and Wildlife 
Service, MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or 
National Marine Fisheries Service, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Request for Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Craig Aubrey, Ecological Services, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 
22041-3803, telephone 703/358-2442; or Tanya Dobrzynski, Chief, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910, telephone 301/427-8400. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Background

    The purposes of the Endangered Species Act of 1973, as amended 
(``ESA'' or ``Act''; 16 U.S.C. 1531 et seq.) are to provide a means to 
conserve the ecosystems upon which listed species depend, to develop a 
program for the conservation of listed species, and to achieve the 
purposes of certain treaties and conventions. Moreover, the Act states 
that it is the policy of Congress that the Federal Government will seek 
to conserve threatened and endangered species and use its authorities 
in furtherance of the purposes of the Act. The Secretaries of the 
Interior and Commerce share responsibilities for implementing most of 
the provisions of the Act. Generally, marine species and some 
anadromous (sea-run) species are under the jurisdiction of the 
Secretary of Commerce, and all other species are under the jurisdiction 
of the Secretary of the Interior. Authority to administer the Act has 
been delegated by the Secretary of the Interior to the Director of the 
U.S. Fish and Wildlife Service (FWS) and by the Secretary of Commerce 
to the Assistant Administrator for the National Marine Fisheries 
Service (NMFS). References in this document to ``the Services'' mean 
FWS and NMFS.
    Title 50, part 402, of the Code of Federal Regulations establishes 
the procedural regulations governing interagency cooperation under 
section 7 of the Act, which requires Federal agencies, in consultation 
with and with the assistance of the Secretaries of the Interior and 
Commerce, to insure that any action authorized, funded, or carried out 
by such agencies is not likely to jeopardize the continued existence of 
endangered or threatened species or result in the destruction or 
adverse modification of critical habitat of such species. In 2019, the 
Services issued a final rule that revised several aspects of the 
regulations to clarify and improve the consultation process (84 FR 
44976, August 27, 2019; hereafter referred to as ``the 2019 rule''). 
Those revised regulations became effective October 28, 2019 (84 FR 
50333).
    Executive Order 13990 (``Protecting Public Health and the 
Environment and Restoring Science To Tackle the Climate Crisis''), 
issued January 20, 2021, directed all departments and agencies 
immediately to review agency actions taken between January 20, 2017, 
and January 20, 2021, and, as appropriate and consistent with 
applicable law, consider suspending, revising, or rescinding agency 
actions that conflict with important national objectives, including 
promoting and protecting our public health and the environment, and to 
immediately commence work to confront the climate crisis. A ``Fact 
Sheet'' that accompanied E.O. 13990 identified a non-exhaustive list of 
particular regulations requiring such a review and included the 2019 
rule (see www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). In response to E.O. 
13990 and in light of recent litigation over the 2019 rule, the 
Services have reviewed the 2019 rule, evaluated the specific regulatory 
revisions promulgated through that process, and now propose to make 
revisions to the regulations at 50 CFR part 402, as discussed in detail 
below.
    The 2019 rule, along with other revisions to the ESA regulations 
finalized in 2019, were subject to litigation in the United States 
District Court for the Northern District of California. On July 5, 
2022, the court issued a decision vacating the 2019 rule, while 
remanding the rule to the Services without reaching the merits of the 
case. On September 21, 2022, the United States Court of Appeals for the 
Ninth Circuit temporarily stayed the effect of the July 5th decision 
pending the District Court's resolution of motions seeking to alter or 
amend that decision. On October 14, 2022, the Services notified the 
District Court that we anticipated proceeding with a rulemaking process 
to revise the 2019 rule. Subsequently, on November 14 and 16, 2022, the 
District Court issued orders remanding the 2019 regulations to the 
Services without vacating them, as the Services had asked the Court to 
do. Accordingly, the Services have developed the following proposal to 
amend some aspects of the 2019 rule.
    Our review of the 2019 rule indicated that, while most of the 
changes finalized in that rule met the intent of clarifying and 
improving the consultation process, certain revisions would be 
beneficial to further improve and clarify interagency consultation, 
while continuing to provide for the conservation of listed species.
    This proposed rule is one of three proposed rules publishing in 
today's Federal Register that propose changes to the regulations that 
implement the ESA. Two of these proposed rules, including this one, are 
joint between the Services, and one proposed rule is specific to the 
FWS.
    In proposing the specific changes to the regulations and setting 
out the accompanying explanatory discussion in this preamble, the 
Services are proposing standards that, if finalized, would apply 
prospectively. Thus, nothing would require that any previous 
consultations under section 7(a)(2) of the Act be reevaluated on the 
basis of these proposed revisions, in the event they are finalized.

Proposed Changes to 50 CFR Part 402 Resulting From Our Review of the 
2019 Rule

Section 402.02--Definitions

Definition of ``Effects of the Action''
    In the 2019 rule, we revised the definition of ``effects of the 
action'' at 50 CFR 402.02. The 2019 definition revised the prior 
definition that had been in place since 1986 in six main respects.
    First, we collapsed the various concepts of direct and indirect 
effects, and the effects of interrelated and interdependent actions, 
into a first sentence that indicates effects of the action are all 
consequences to the listed species and critical habitat caused by the 
proposed action. The first sentence of the revised definition stated 
that these consequences include ``the effects of other activities that 
are caused by the proposed action.'' It included a distinction between 
the word ``action,'' which referred to the action proposed to be 
authorized, funded, or carried out, in

[[Page 40755]]

whole or in part, by the Federal agency and brought in for consultation 
with the Services, and ``activity'' or ``activities,'' which referred 
to those activities that are caused by the proposed action but are not 
part of the proposed action. Under the pre-2019 definition, these 
activities would have been considered under either ``indirect effects'' 
or ``interrelated'' or ``interdependent'' activities. The Services' 
intent with the first sentence of the 2019 definition was for 
consultations to focus on identifying the full range of the effects 
rather than on categorizing them (84 FR 44976-44977, August 27, 2019; 
83 FR 35178 at 35183, July 25, 2018).
    Second, we adopted an explicit two-part test to determine when a 
consequence is caused by the proposed action. A consequence (an effect 
or an activity and its effects) is caused by the proposed action if it 
would not occur but for the proposed action, and it is reasonably 
certain to occur. Both of these concepts (``but-for'' causation and 
``reasonably certain to occur'') have long been part of the Services' 
query into identifying the effects of the action. By making them 
explicit and applicable to all aspects of the causation standard, the 
Services' goal was to describe a transparent standard that simplified 
the definition of ``effects of the action,'' while still maintaining 
the scope of the assessment required to ensure a complete analysis of 
the effects of proposed actions.
    Third, the Services removed the definition of ``environmental 
baseline'' from the definition of ``effects of the action'' and 
established it as its own stand-alone definition. Fourth, the Services 
moved the instruction that the effects of the proposed action shall be 
added to the environmental baseline into the regulations guiding the 
Services' responsibilities in formal consultation in Sec.  402.14(g). 
Fifth, consistent with the prior definition of ``indirect effects,'' 
the Services included a third sentence in the ``effects of the action'' 
definition to serve as a reminder that the effects of the action may 
occur throughout the action area and on an ongoing, or even delayed, 
timeframe after completion of the action. And, finally, the Services 
added a parenthetical reference to Sec.  402.17, a new section that 
further defined the concept of ``reasonably certain to occur.''
    While the 2019 changes to the definition of ``effects of the 
action'' have largely provided the clarity to the consultation process 
that the Services intended by articulating in more detail the standards 
that had been used for many decades in implementing section 7 of the 
Act, some revisions to the definition of ``effects of the action'' are 
warranted to align with other changes we are proposing. As described in 
more detail below, we propose to remove Sec.  402.17 from the 
regulations, and, therefore, we propose a conforming change to remove 
the parenthetical reference to that section in the ``effects of the 
action'' definition. Due to our intent to maintain the scope of the 
analysis of effects of the action, we propose to move the phrase ``but 
that are not part of the action'' from Sec.  402.17 to the end of the 
first sentence of the definition of ``effects of the action'' in Sec.  
402.02. The modified definition is set forth below in the proposed 
regulatory text section of this document.
    As discussed above, the reference to ``activities'' in the first 
sentence of the 2019 ``effects of the action'' definition is to those 
activities that are caused by, but that are not part of, the proposed 
action. Because this concept is important, we are proposing to retain 
the concept by adding the text to the definition of the ``effects of 
the action.'' As the Services explained in 2019, the proposed action 
receives a presumption that it will occur (e.g., 84 FR 44976 at 44979, 
August 27, 2019). For this reason, it would not be appropriate to apply 
the two-part causation test to the proposed action itself, especially 
the concept of reasonably certain to occur. However, activities that 
may be caused by the proposed action, but that are not part of the 
proposed action, are subject to the two-part causation test.
Definition of ``Environmental Baseline''
    We are proposing minor, clarifying edits to the definition of 
``environmental baseline.'' In 2019, we removed the definition of 
environmental baseline from the definition of ``effects of the action'' 
and established it as its own stand-alone definition at 50 CFR 402.02. 
At that time, we also added a third sentence to the definition that 
stated that the consequences to listed species or designated critical 
habitat from ongoing agency activities or existing agency facilities 
that are not within the agency's discretion to modify are part of the 
environmental baseline. The purpose of the third sentence was to codify 
the Services' past practice and explain aspects of the environmental 
baseline and effects of the action definitions that had caused 
confusion in the past, particularly with regard to impacts from a 
Federal action agency's ongoing activities or existing facilities that 
are not within that Federal agency's discretion to modify. We are 
proposing three changes to this sentence.
    The first change we are proposing is to replace the term 
``consequences'' with the word ``impacts'' at the start of the third 
sentence of the definition of ``environmental baseline.'' While we 
consider ``consequences,'' ``impacts,'' and ``effects'' to be 
equivalent terms, we propose this modification to be consistent with 
the language in the previous sentence. Because ongoing agency 
activities or existing agency facilities that are not within the 
agency's discretion to modify belong in the baseline and not the 
proposed action, we propose to consistently use the term ``impacts'' 
throughout the definition for items that belong in the environmental 
baseline while retaining the use of the term ``consequences'' in the 
first sentence for effects that are caused by the proposed action and 
not included in the environmental baseline.
    The second and third changes we are proposing are to revise the 
third sentence of the definition of ``environmental baseline'' to 
remove the term ``ongoing'' and add the term ``Federal'' in two 
locations. These changes are intended to emphasize the central question 
of the Federal agency's discretion over their own activities and 
facilities in determining what is properly categorized as falling 
within the environmental baseline. Further, the use of the term 
``ongoing'' has resulted in misinterpretation and distracted from the 
intended focus on Federal agency discretion.
    The Services' 2019 revised definition did not articulate as clearly 
as it could have that the action agency's discretion to modify the 
activity or facility is the determining factor when deciding which 
impacts of an action agency's activity or facility should be included 
in the environmental baseline, as opposed to the effects of the action. 
We did not sufficiently emphasize that when the Services referred to an 
``agency'' in that third sentence, we were referring to the Federal 
agency taking the action that is subject to the ESA section 7 
consultation. Here, when we refer to an ``agency,'' ``action agency,'' 
or ``Federal agency,'' it is in reference to the Federal agency that 
has proposed the action undergoing section 7 consultation. Consistent 
with Sec.  402.03, the obligation of a Federal agency to consult on a 
Federal action pursuant to section 7 and the requirements of the part 
402 regulations apply to all actions in which there is discretionary 
Federal involvement or control. Therefore, those components of Federal 
activities or Federal facilities that are not within the discretionary 
control of the Federal agency are not subject to the requirement to 
consult, and as a result,

[[Page 40756]]

the impacts of those non-discretionary activities and facilities to 
listed species and critical habitat are not a consequence of a proposed 
discretionary Federal action.
    Although we are proposing to further modify the 2019 rule's 
definition of ``environmental baseline'' for clarity, the practice of 
the Services and our application of the definition in consultations 
will not change. Thus, the information and examples provided in the 
2019 rule's preamble (84 FR 44976 at 44978-44979, August 27, 2019) 
remain relevant. As discussed in the 2019 rule's preamble, the 
Services' practice of including in the baseline the impacts from 
Federal agency activities or existing Federal agency facilities that 
are not within the Federal agency's discretion to modify is supported 
by the Supreme Court's conclusion in National Ass'n of Home Builders v. 
Defenders of Wildlife, 551 U.S. 644, 667-71 (U.S. 2007) (``Home 
Builders''). In that case, the Court held that it was reasonable for 
the Services to narrow the application of section 7 to a Federal 
agency's discretionary actions because ``(t)he regulation's focus on 
`discretionary' actions accords with the commonsense conclusion that, 
when an agency is required to do something by statute, it simply lacks 
the power to `insure' that such action will not jeopardize endangered 
species.'' Id. It follows, then, that when a Federal agency has 
authority for managing or operating an existing facility, but lacks 
discretion to remove or fundamentally alter the physical structure of 
the facility, the impacts from the physical presence of the facility on 
the landscape to listed species and critical habitat are appropriately 
placed in the environmental baseline and are not considered an effect 
of the action under consultation.
    To illustrate the interplay between a Federal agency's non-
discretionary facility and its discretionary operations, consider an 
example where, prior to the passage of the ESA, Congress authorized a 
Federal agency to construct and operate a dam and provided the Federal 
agency with discretion to operate the dam for various purposes 
including fish and wildlife management but provided the Federal agency 
with no discretion to remove or fundamentally alter the structure of 
the dam in the future. If a species was subsequently listed after the 
passage of the ESA, the Federal agency would have a duty to consult on 
their continued discretionary operations of the dam, but the existence 
of the dam itself and its future impacts to the listed species would be 
considered part of the environmental baseline (along with the past and 
present impacts of dam operations up to the time of consultation). If 
the existence of this dam kills 100 individuals of the listed species 
per year, consultations on the discretionary operations of the dam 
would consider the consequences of the discretionary operations in 
addition to the baseline loss of 100 individuals per year, every year, 
for the duration of the consultation analysis. Further, future 
consequences of the entire discretionary operation would be evaluated 
as effects of the proposed action even if the proposed action does not 
contemplate changes to some aspects of past discretionary practices or 
operations. For example, the Federal agency may propose to continue the 
operations of the dam's flow regime with no changes from past 
practices, or with only minor changes. Regardless of their ``ongoing'' 
nature, all of the consequences of the proposed discretionary 
operations of the structure are ``effects of the action.'' Thus, 
deletion of the term ``ongoing'' from the original third sentence 
remedies a misperception that anything that was a continuation of past 
and present discretionary practice or operation would be in the 
environmental baseline.
    Similarly, the addition of the word ``Federal'' to agency 
activities or existing facilities in the third sentence emphasizes that 
the question of discretion for purposes of defining what is in the 
environmental baseline versus the effects of a proposed action is 
relevant to the Federal agency's own facilities and activities but not 
those of third parties. Thus, in the example above, if the Federal 
agency's discretionary operations of the dam result in recreational 
activities by third parties using the reservoir created behind the dam, 
then the future consequences of those activities caused by the proposed 
action would be considered effects of the action (not environmental 
baseline) even though the Federal agency may lack the discretion to 
control or regulate the recreational activities.
    When questions arise as to whether the impacts from a particular 
Federal agency activity or facility are treated as part of the 
environmental baseline, the Services will work closely with the Federal 
agency to understand the scope of the Federal agency's authorities and 
discretion. As with other aspects of a package to initiate 
consultation, the Services often confer with the Federal agency to seek 
clarification on or additional support for the Federal agency's 
description of their governing authorities and scope of their 
discretion. When initiating consultation and in these discussions, we 
would expect the Federal agency to clearly identify and describe with 
sufficient detail the governing authorities that may constrain their 
discretion over some or all of the Federal agency activity or facility 
at issue. Absent unusual circumstances, the Services anticipate we 
would likely defer to the Federal action agency's interpretation of 
their authorities.

Section 402.16--Reinitiation of Consultation

    In the 2019 rule, we removed the term ``formal'' from the heading 
and text of Sec.  402.16 to acknowledge that the requirement to 
reinitiate consultation applies to all section 7(a)(2) consultations 
(84 FR 44976 at 44980, August 27, 2019). We are proposing one change to 
the text of Sec.  402.16(a) to clarify the responsibilities of the 
Federal agency and the Services regarding the requirement to reinitiate 
consultation.
    The current text at Sec.  402.16(a) states that reinitiation of 
consultation is required and shall be requested by the Federal agency 
or by the Service, where discretionary Federal involvement or control 
over the action has been retained or is authorized by law. We now 
propose to delete the words ``or by the Service.''
    The Services are aware that the wording of Sec.  402.16(a) has 
often been misunderstood or misinterpreted in regard to whether the 
Federal action agency or the Services have the obligation to request 
reinitiation of consultation when one or more of the triggers has been 
met. In the 2019 rule, we stated clearly in the preamble that the 
Services do not have the authority to require reinitiation of a 
consultation when the requirements for reinitiation have been met. We 
explained that reference to the Service in that section does not impose 
an affirmative obligation on the Service to reinitiate consultation if 
the criteria have been met. Rather, this reference has always been 
interpreted by the Services to allow us to recommend reinitiation of 
consultation to the relevant Federal action agency if we have 
information that indicates reinitiation is warranted. It is ultimately 
the responsibility of the Federal action agency to request reinitiation 
of consultation with the relevant Service when warranted. See 84 FR 
44976 at 44980, August 27, 2019.
    The Services' attempt in the preamble of the 2019 rule to clarify 
the action agency's duty to reinitiate has not been sufficient to 
resolve this issue. See, e.g., Center for Biological Diversity v. U.S. 
Forest Service, CV-20-00020-TUC-DCB, 2020 WL 6710944 (D. Ariz. Nov. 16, 
2020) (interpreting the language of

[[Page 40757]]

the regulation to require that FWS had a duty to reinitiate 
consultation). As a result, we are proposing to remove the reference to 
the Service in Sec.  402.16(a) to conform to our longstanding practice 
and understanding of the limits of our authority under the Act. Under 
the statutory scheme of section 7 of the ESA, the Services lack the 
authority to require either the initiation of consultation or 
reinitiation of a completed consultation. See 51 FR 19926 at 19956, 
June 3, 1986 (consulting agencies lack the authority to require Federal 
agencies to reinitiate consultation if they choose not to do so). The 
legislative history of the ESA similarly reflects that it is the action 
agency that bears any duty to reinitiate consultation. See H.R. Rep. 
No. 97-567, at 27 (1982) (``if the specified impact on the species is 
exceeded, the Committee expects that the Federal [action] agency or 
permittee or licensee will immediately reinitiate consultation''). 
Similarly, the Services' Consultation Handbook recognizes that the 
Services cannot ``require Federal agencies to reinitiate consultation 
if they choose not to do so.'' Consultation Handbook (FWS and NMFS, 
March 1998) at 2-11.
    To attempt to reinitiate consultation unilaterally without a 
request for reinitiation and cooperation from the action agency is 
contrary to the fundamental nature of the consultation process under 
section 7--a provision that Congress entitled ``interagency 
cooperation.'' The responsibility and obligation to reinitiate that 
consultation lies with the Federal agency that retains discretionary 
involvement or control over its action. Our proposed alteration does 
not prevent the Services from notifying the Federal agency if we 
conclude that circumstances appear to warrant a reinitiation of 
consultation or engaging in a conversation with the Federal agency over 
that issue.

Section 402.17--Other Provisions

    In the 2019 rule, we added a new section, Sec.  402.17, ``Other 
provisions,'' which was intended to clarify several aspects of the 
process of determining whether an activity or consequence is reasonably 
certain to occur.
    Within this new section, paragraph (a) pertained to activities that 
are reasonably certain to occur, in order to clarify the application of 
the ``reasonably certain to occur'' standard to activities included in 
the definitions of ``effects of the action'' and ``cumulative effects'' 
in Sec.  402.02. This new provision applied only to activities caused 
by, but not part of, the proposed action captured in the definition of 
``effects of the action'' and future non-Federal activities under 
``cumulative effects.'' Consistent with the ESA, existing regulations, 
and agency practice, we noted that the reasonable certainty standard 
does not apply to whether aspects of the proposed action itself will be 
implemented, but again, only to the analysis of the effects caused by 
the action to the listed species and critical habitat. (See 83 FR 35178 
at 35189, July 25, 2018; also 84 FR 44976 at 44977-44978, August 27, 
2019.)
    In the 2019 rule, we also added Sec.  402.17(b) pertaining to 
consequences caused by the proposed action to emphasize other 
considerations when reviewing whether a consequence is not reasonably 
certain to occur. Similar to the provisions of Sec.  402.17(a), Sec.  
402.17(b)(1) through (b)(3) identified a list of factors that could be 
relevant to this inquiry. We explained that those factors were not 
exhaustive, new, or more stringent factors than what we have used in 
the past to determine if a consequence would or would not occur (84 FR 
44976 at 44981, August 27, 2019). They were not meant to imply that 
time, distance, or multiple steps inherently make a consequence not 
reasonably certain to occur, but that these are relevant 
considerations. See id.
    We also explained that each consultation will have its own set of 
evaluations and will depend on the underlying factors unique to that 
consultation. We used the following example in the 2019 rule: A Federal 
agency is consulting on the permitting of installation of an outfall 
pipe. A secondary, connecting pipe owned by a third party is to be 
installed and would not occur ``but for'' the proposed outfall pipe, 
and existing plans for the connecting pipe make it reasonably certain 
to occur (84 FR 44976 at 44981, August 27, 2019). Under our 2019 
definition for ``effects of the action,'' any consequences to listed 
species or critical habitat caused by the secondary pipe would be 
considered to fall within the effects of the agency action. However, we 
also recognized that there are situations, such as when consequences 
are so remote in time or location or are only reached following a 
lengthy causal chain of events, that the consequences would not be 
considered reasonably certain to occur.
    In both Sec.  402.17(a) and (b), we also added a sentence intended 
to describe the nature of the information needed to determine that 
either an activity (paragraph (a)) or a consequence (paragraph (b)) is 
reasonably certain to occur. This sentence required the conclusion of 
reasonably certain to occur to be based on clear and substantial 
information, using the best scientific and commercial data available.
    By adding this sentence, we explained that we did not intend to 
change the statutory requirement that determinations under the Act are 
made based on the best scientific and commercial data available. 
Rather, by clear and substantial information, we explained that the 
conclusion of reasonably certain to occur must be based on solid 
information and provide a firm basis for such conclusion (84 FR 44976 
at 44981, August 27, 2019). Lastly, we added Sec.  402.17(c) to 
reinforce that both the action agency and the Services must consider 
the framework provided by Sec.  402.17(a) and (b).
    Since the final rule was published in August 2019, the Services 
have noted several areas of potential confusion as to the intent and 
structure of Sec.  402.17. Because of these concerns, we propose to 
remove section Sec.  402.17 in its entirety.
    Specifically, one point of potential confusion and structural 
complexity was that the language of Sec.  402.17 included additional 
elements in the definition of ``effects of the action'' found in Sec.  
402.02. However, the definition in Sec.  402.02 should be self-
contained and complete on its own terms without the need to reference 
additional sections of the regulations. As described further below, we 
will address factors relevant for determining if a consequence is 
reasonably certain to occur in the more appropriate forum of a guidance 
document.
    Second, another point of potential confusion centered around our 
introduction of the phrase ``clear and substantial information'' in 
Sec.  402.17 to determine if an activity or consequence is reasonably 
certain to occur. This phrase has inadvertently created the 
misperception that it represents an additional, or different, standard 
upon which to base a conclusion as to whether an activity is reasonably 
certain to occur. That was not our intent. The standard regarding the 
information upon which to base such determinations, as noted in the 
phrase following ``clear and substantial information,'' is the 
statutory requirement of ``using the best scientific and commercial 
data available.'' The ``clear and substantial information'' standard 
was intended to indicate that any rationale regarding activities or 
consequences that are reasonably certain to occur needed to be solidly 
based on the ``best scientific and commercial data available.'' 
However, the addition of the ``clear and substantial information'' 
requirement

[[Page 40758]]

did not have the desired effect and, on reconsideration, we also find 
that it may be in tension with the statutory standard.
    Although we did not intend for the language in the 2019 rule to 
require a certain amount of numerical data or to provide a guarantee 
that a consequence was reasonably certain to occur (84 FR 44976 at 
44993, August 27, 2019), the preambular language that also described 
this standard as requiring a ``degree of certitude'' (e.g., p. 44981) 
could contribute to confusion over application of this terminology. 
Rather than promoting consistency in application of how we determine 
the scope of effects of the action, this language instead creates 
confusion. In addition to the information standard supplied by the ESA 
itself, the standards for rational agency decision-making under the 
Administrative Procedure Act (5 U.S.C. 551 et seq.) also apply and give 
courts the jurisdiction to review the Services' final agency actions on 
the basis of the relevant administrative record. Accordingly, by 
removing this section, we would not be changing the applicable 
standards for determining whether consequences may result from an 
agency action undergoing consultation but instead would be removing 
language that could otherwise contribute to inconsistent application of 
these standards.
    Third, we propose to capture the point in Sec.  402.17(a) that the 
``reasonably certain to occur'' standard does not apply to the proposed 
action itself, but instead to activities that are caused by the 
proposed action, by the addition of the phrase ``but that are not part 
of the action'' directly to the definition of ``effects of the action'' 
in Sec.  402.02, as discussed above.
    Fourth, the provisions set forth in Sec.  402.17(a)(1) through 
(a)(3) were an attempt to identify non-exclusive factors that could be 
examined to determine whether an activity is reasonably certain to 
occur. This language repeated elements that were similar to those 
mentioned in the preamble to the 1986 final rule on interagency 
cooperation (51 FR 19926 at 19933, June 3, 1986) and the Services' 1998 
Consultation Handbook (Handbook at 4-32). The text at Sec.  402.17(b) 
similarly described a non-exclusive list of factors to determine when a 
consequence may not be reasonably certain to occur. These are relevant 
considerations. However, on reconsideration, we find that this 
information would be better suited for discussion in a guidance 
document rather than regulations because these factors do not 
necessarily apply in all cases, and further explanation is needed on 
when and how these factors may be appropriately considered. We expect 
to address and expand on these factors in updates to the Services' 
Consultation Handbook. Additional explanation as to the appropriate 
application of the ``reasonably certain to occur'' standard may also be 
found in the preamble to the Services' 2015 ESA rulemaking in which the 
Services expressly adopted ``reasonably certain to occur'' as the 
standard for determining when incidental take is anticipated to occur 
(80 FR 26832 at 26837, May 11, 2015).
    Because Sec.  402.17(c) speaks directly to application of both 
Sec.  402.17(a) and (b), we propose to eliminate paragraph (c) as well. 
Therefore, we are proposing to remove the entire section from the 
regulations in part 402.
    The previously articulated bases for Sec.  402.17 will be addressed 
by alternative means either through these proposed regulatory text 
revisions or future guidance. This proposed regulatory revision 
simplifies the regulations and eliminates the need for any reader to 
consult multiple sections of the regulations to discern what is 
considered an ``effect of the action.''

Additional Proposed Changes to 50 CFR Part 402

    In addition to the regulatory changes proposed in response to our 
review of the 2019 rule, we are also proposing changes to other aspects 
of part 402 that were not addressed in 2019. To change the Services' 
implementation of the ESA so that it better reflects congressional 
intent and better serves the conservation goals of the ESA, we are 
proposing amendments to the regulatory provisions relating to the scope 
of reasonable and prudent measures (RPMs) in an incidental take 
statement (ITS). Minimizing impacts of incidental take on the species 
through the use of offsetting measures can result in improved 
conservation outcomes for species incidentally taken due to proposed 
actions and may reduce the accumulation of adverse impacts, sometimes 
referred to as ``death by a thousand cuts.'' In addition, by allowing 
the Services to specify offsets outside the action area as RPMs, 
conservation efforts can be focused where they will be most beneficial 
to the species. For example, in some circumstances, offsetting measures 
applied outside the action area would more effectively minimize the 
impact of the proposed action to the subject species.
    RPMs authorized under ESA section 7(b)(4) are issued by the 
Services to minimize impacts to species from incidental take reasonably 
certain to occur from a Federal action analyzed in an ESA section 7 
biological opinion. The Services have previously taken the position 
that RPMs \1\ should be confined to only those measures that avoid or 
reduce incidental take and that occur inside the ``action area'' (which 
the ESA regulations define as ``all areas to be affected directly or 
indirectly by the Federal action,'' 50 CFR 402.02). For example, the 
Services' 1998 Consultation Handbook states:
---------------------------------------------------------------------------

    \1\ For the sake of brevity, this preamble will use the term 
``RPMs'' to encompass both the reasonable and prudent measures 
prescribed under ESA section 7(b)(4) and the terms and conditions 
that implement them, including monitoring and reporting 
requirements.

    Section 7 requires minimization of the level of take. It is not 
appropriate to require mitigation for impacts of incidental take. 
Reasonable and prudent measures can include only actions that occur 
within the action area, involve only minor changes to the project, 
---------------------------------------------------------------------------
and reduce the level of take associated with project activities.

FWS and NMFS, Final Endangered Species Act Consultation Handbook, 4-53 
(1998) (``Consultation Handbook'') (italics added).
    Thus, under this position taken in the Consultation Handbook, RPMs 
may not consist of measures that offset impacts from the taking of 
individuals through activities other than avoiding or reducing the 
level of incidental take. In addition, RPMs must occur within the 
action area.
    With the benefit of having conducted a careful review of the Act's 
text, the purposes and policies of the ESA, and the 1982 ESA 
legislative history, the Services propose revisions to the regulations 
to reflect a change in the Services' interpretation of the Act's 
provisions relating to RPMs. Under these proposed regulatory revisions, 
the Services would clarify that, after considering measures that avoid 
or reduce incidental take within the action area, the Services may 
consider for inclusion as RPMs measures that offset any remaining 
impacts of incidental take that cannot be avoided. For example, in 
instances where the impact to the species occurs as the result of 
habitat modifications or destruction within the action area and cannot 
be minimized within the project site or action area, offsetting 
measures could include restoring or protecting suitable habitat for the 
affected species (e.g., via a species conservation bank, conservation 
easement with endowment, in lieu fee program, restoration program, 
etc.).
    Such offsetting measures are not an alternative to RPMs that reduce 
or avoid

[[Page 40759]]

incidental take, but rather are additional measures to address the 
residual impacts to the species that remain after measures to avoid 
and, therefore, reduce incidental take are applied. These additional 
measures do not modify the action subject to consultation and may occur 
inside or outside of the action area. As a shorthand, the preamble will 
sometimes refer to ``offsetting measures'' or ``offsets'' as measures 
that address the remaining impacts of incidental take that cannot be 
avoided.
    To illustrate how offsetting measures may be applied under this 
proposal, assume a Federal agency consults on its issuance of a permit 
for a transmission line. The Service determines in a biological opinion 
the proposed action is not likely to jeopardize federally listed 
species. The project, as proposed, was designed to minimize impacts to 
the species, and incidental take would be kept to a minimum. When 
developing the incidental take statement, the Service then considers 
whether any RPMs could be applied within the action area to avoid and 
further reduce incidental take levels. Then, the Service considers 
whether any offsetting measures to minimize the remaining impacts to 
the species from incidental take could be applied, giving preference to 
offsets that can be applied within the action area. This offset would 
not be limited to the action area, and as mentioned previously, the 
offset could include the Federal agency or applicant restoring or 
protecting suitable habitat for the affected species though a 
conservation bank.
    As further explained below, the Services have significant 
discretion to specify offsetting measures as RPMs and offsets would not 
be required in every case. Their use would also be subject to several 
limitations. As with all RPMs, they would be limited by the existing 
``minor change rule'' in 50 CFR 402.14(i)(2). Offsetting measures would 
be considered for inclusion only in a sequence in which the Services 
first considered appropriate measures within the action area and may be 
included as RPMs for minimizing any remaining impacts that cannot 
otherwise be avoided. In addition, measures offsetting any remaining 
impacts of incidental take that cannot be avoided must be commensurate 
with the scale of the impact.
    ESA section 7(b)(4) provides the requirements for issuance of an 
ITS. If, after consultation, the Secretary concludes that the agency 
action will not violate section 7(a)(2) of the Act (i.e., will not 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of critical habitat), but 
incidental take of the listed species is anticipated,\2\ the Secretary 
must provide the agency with a written statement that includes certain 
components. The written statement must specify the impact of such 
incidental taking on the species and specify those reasonable and 
prudent measures that the Secretary considers necessary or appropriate 
to minimize such impact (16 U.S.C. 1536(b)(4)). ESA section 7(o) 
further provides that taking in compliance with the terms and 
conditions of the ITS is then exempt from the taking prohibitions of 
ESA section 9 (16 U.S.C. 1536(o)).
---------------------------------------------------------------------------

    \2\ Under the implementing regulations, an ITS is required if 
incidental take is ``reasonably certain to occur.'' 50 CFR 
402.14(g)(7).
---------------------------------------------------------------------------

    None of these provisions indicate the specific types of RPMs that 
may be used to minimize impacts of incidental take, nor do they require 
RPMs to occur within the action area. By referring to measures the 
Services deem ``necessary or appropriate,'' the Act provides the 
Services with substantial discretion to identify RPMs, and the Act 
plainly states that RPMs minimize the impacts of incidental take, not 
minimize incidental take itself. Thus, contrary to the position taken 
in the Consultation Handbook, RPMs are not limited to measures that 
avoid or reduce levels of incidental take. Moreover, nothing in the ESA 
indicates that RPMs are to be carried out in the action area.
    The proposed clarification would include a preferred order for 
RPMs. The Services would first consider and apply measures within the 
action area to minimize the impact of incidental take, including, as 
appropriate, measures to reduce or avoid incidental take of 
individuals. The Services may then consider measures within the action 
area that use offsets to further minimize any of the remaining impacts 
of incidental take. After fully considering these measures within the 
action area, the Services may then consider additional measures outside 
the action area that use offsets of take to further minimize any 
remaining impacts of incidental take. This approach allows the Services 
to implement our respective mitigation policies more effectively, as 
both policies are predicated on a mitigation hierarchy approach of 
avoiding impacts, and then addressing any remaining impacts that cannot 
be avoided.
    Under this proposal, RPMs would still need to be ``reasonable and 
prudent'' and, therefore, must be measures that are within the 
authority and discretion of the action agency or applicants to carry 
out. See Consultation Handbook at 4-53. In addition, such measures 
would remain subject to the longstanding regulatory requirement that 
these measures ``cannot alter the basic design, location, scope, 
duration, or timing of the action and may involve only minor changes.'' 
See 50 CFR 402.14(i)(2).
    Moreover, the measures would need to be appropriately scaled. In 
addition to the limitations of the minor change rule, the scale of the 
take caused by the action would provide an upper limit on the scale of 
any offsetting measures. The discretion to ``minimize'' the impacts on 
the species means that the measures in any case would not be more than 
necessary or appropriate to offset the impacts of taking of the species 
in the action area that had not already been addressed through 
avoidance measures. As always, the Services must determine the extent 
of RPMs that are ``necessary or appropriate.''
    This proposed change is compatible with other mitigation policies 
and guidance, including the Services' respective mitigation policies 
and the mitigation sequencing approach reflected in the Council on 
Environmental Quality's regulations implementing the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.). In fact, an 
additional reason for proposing this change is that it would allow the 
Services to adhere more effectively to the preferred sequence in the 
development of mitigation that aims to avoid impacts to the species 
first, and then potentially minimize residual impact to the species 
through offsets. Moreover, clarifying that RPMs are not restricted to 
the action area and may include offsets provides greater flexibility in 
meeting the statutory objective of minimizing the impact of take, which 
could be particularly helpful when incidental take cannot be avoided. 
In addition, if finalized, this change in our approach to RPMs would 
not affect the existing ability of action agencies to incorporate 
mitigative measures voluntarily as part of the proposed action being 
evaluated under ESA section 7(a)(2).
    None of this is meant to imply that the Services must require 
offsetting measures inside or outside the action area, only that they 
have discretion to do so. In proposing specific changes to the 
regulations and setting forth the justification for these changes in 
this preamble, the Services are proposing revisions that, if finalized, 
would apply prospectively. Thus, nothing would require that any 
previous consultations under section 7(a)(2) of the Act be reevaluated 
on the basis of these proposed revisions, in the event they are 
finalized.

[[Page 40760]]

    These proposed revisions would not alter the way that the impacts 
of incidental taking are currently specified in an ITS. Under current 
regulations, the impact of incidental taking is expressed in terms of 
``amount or extent'' of such taking. See 50 CFR 402.14(i). Amount or 
extent may be expressed by specifying the number of individuals taken, 
or through an appropriate surrogate (e.g., similarly affected species 
or habitat or ecological conditions). Id. Nor do the Services propose 
to change the requirement for reinitiation of consultation any time 
``the amount or extent of taking specified in the incidental take 
statement is exceeded.'' 50 CFR 402.16(a). All that would change is a 
recognition that the ESA does not prohibit RPMs outside the action area 
and that such measures may, where necessary or appropriate, include 
minimization of the impacts of the taking on the species through 
offsets.
    Based upon the above discussion, we are proposing the following:

Section 402.02--Definitions

Definition of ``Reasonable and Prudent Measures''
    The current definition of ``reasonable and prudent measures'' 
provides that reasonable and prudent measures refer to those actions 
that the Director believes necessary or appropriate to minimize the 
impacts, i.e., amount or extent, of incidental take.
    In our proposed revisions, we would revise the definition to adhere 
more closely to the statute. We would do so by replacing the term 
``believes'' with ``considers.'' In addition, we would replace the 
clause ``impacts, i.e., amount or extent, of incidental take'' with 
``impact of the incidental take on the species.'' This proposed change 
would more closely track the statutory language at section 7(b)(4); 
further, regulatory language in 50 CFR 402.14 already provides that the 
impact on the species is to be specified in terms of the amount or 
extent of incidental take caused by the action.

Section 50 CFR 402.14--Formal Consultation

    We propose revising Sec.  402.14(i)(1)(i) and (ii) to reflect our 
interpretation that RPMs are not limited solely to reducing incidental 
take and may occur outside of the action area. In addition, a new 
paragraph at (i)(3) is proposed to clarify that offsets within or 
outside the action area can be required to minimize the impact of 
incidental taking on the species. This proposed regulation specifies 
the sequence in which such measures will be considered, giving priority 
to measures that avoid or reduce incidental take, followed by 
consideration of measures that offset the remaining impacts of 
incidental take that cannot be avoided.

Request for Comments

    We are seeking comments from all interested parties on the proposed 
revisions to 50 CFR part 402, as well as on any of our analyses or 
preliminary conclusions in the Required Determinations section of this 
document. While comments on all aspects of this proposed rule are 
solicited, we particularly note that the public is invited to comment 
on revisions to the regulations in 50 CFR 402.02 and 402.14 regarding 
the scope of RPMs in incidental take statements, given that this was a 
topic not raised in the 2019 rule revisions. We will also accept public 
comment on all aspects of the 2019 rule, including whether any of those 
provisions should be rescinded in their entirety (restoring the prior 
regulatory provision) or revised in a different way. All relevant 
information will be considered prior to making a final determination 
regarding the regulations for interagency cooperation. Depending on the 
comments received, we may change the proposed regulations based upon 
those comments.
    You may submit your comments concerning this proposed rule by one 
of the methods listed in ADDRESSES. We request that you send comments 
only by the methods described in ADDRESSES. Comments sent by any other 
method, to any other address or individual, may not be considered.
    Comments and materials we receive will be posted and available for 
public inspection on https://www.regulations.gov. This generally means 
that we will post any personal information you provide us. If you 
provide personal identifying information in your comment, you may 
request at the top of your document that we withhold this information 
from public review. However, we cannot guarantee that we will be able 
to do so. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this proposed rule is significant.
    Executive Order 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O 13563 and states that regulatory 
analysis should facilitate agency efforts to develop regulations that 
serve the public interest, advance statutory objectives, and be 
consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum 
of January 20, 2021 (Modernizing Regulatory Review). Regulatory 
analysis, as practicable and appropriate, shall recognize distributive 
impacts and equity, to the extent permitted by law. E.O. 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
proposed rule in a manner consistent with these requirements. This 
proposed rule is consistent with E.O. 13563, including the requirement 
of retrospective analysis of existing rules, designed ``to make the 
agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''
    We are proposing revisions to the Services' implementing 
regulations at 50 CFR 402. Specifically, the Services are proposing 
changes to implementing regulations at: (1) Sec.  402.02, definitions; 
(2) Sec.  402.16, reinitiation of consultation; (3) Sec.  402.17, other 
provisions; and (4) Sec.  402.14(i)(1), formal consultation. The 
preamble to this proposed rule explains in detail why we anticipate 
that the regulatory changes we are proposing will improve the 
implementation of the Act.
    When we made changes to Sec. Sec.  402.02, 402.16, and 402.17 in 
2019, we compiled historical data for a variety of metrics associated 
with the consultation process in an effort to describe for OMB and the 
public the effects of those regulations (on https://www.regulations.gov, see Supporting Document No. FWS-HQ-ES-2018-0009-
64309 of Docket No. FWS-HQ-ES-2018-0009; Docket No. 180207140-8140-01). 
We presented various metrics related to the regulation revisions, as 
well as historical data supporting the metrics.
    For the 2019 regulations, we concluded that because those revisions 
served to clarify rather than alter the standards for consultation 
under section 7(a)(2) of the Act, the 2019 regulation revisions were 
substantially unlikely to affect our determinations as to whether 
proposed Federal actions are likely to jeopardize listed species or 
result in the

[[Page 40761]]

destruction or adverse modification of critical habitat.
    As with the 2019 regulations, the revisions we are now proposing, 
as described above, are intended to provide transparency and clarity 
and align more closely with the statute--not only to the public and 
stakeholders, but also to the Services' staff in the implementation of 
the Act. As a result, we do not anticipate any substantial change in 
our determinations as to whether or not proposed actions are likely to 
jeopardize listed species or result in the destruction or adverse 
modification of critical habitat.
    Similarly, although the proposed revisions to the regulatory 
provisions relating to RPMs are amendments not considered in the 2019 
rulemaking, this change, if finalized, would align the regulations with 
the plain language of the statute. This change would not affect most 
consultations under section 7(a)(2) of the Act. This is because most 
consultations are completed informally, and this change would only 
apply to formal consultations that require an ITS containing RPMs. Even 
among formal consultations that require an ITS containing RPMs, some of 
these consultations will be able to address impacts of incidental take 
through measures that avoid or reduce incidental take within the action 
area, and the change would not apply to those consultations. As 
explained in the preamble language above, the use of offsetting 
measures in RPMs would not be required in every consultation. As with 
all RPMs, these offsetting measures must be commensurate with the scale 
of the impact, subject to the existing ``minor change rule,'' be 
reasonable and prudent, and be necessary or appropriate to minimize the 
impact of the incidental taking on the species. Lastly, several 
different action agencies in various locations throughout the country 
readily include offsetting measures as part of their project 
descriptions. This practice of including offsets as part of the 
proposed action being evaluated in a consultation is not uncommon. The 
Services may find that offsets included in the proposed action 
adequately minimize impacts of incidental take, thus obviating the need 
to specify additional offsets as RPMs. Examples of these types of 
consultations that incorporate offsetting measures into the proposed 
action include programmatic consultations, certain consultations 
regarding transportation projects, and Army Corps of Engineers Clean 
Water Act section 404 permit projects.
    It is not possible to know how many formal consultations will 
include offsetting measures as RPMs due to the tremendous variation in 
Federal actions subject to formal consultation, the specific impacts 
from these actions, and the affected species that may be analyzed. 
Although we cannot predict the costs of the RPM proposal due to these 
variable factors associated with formal consultations, any costs would 
be constrained by the statutory and regulatory requirements that RPMs 
are ``reasonable and prudent,'' commensurate with the residual impacts 
of incidental take caused by the proposed action, and subject to the 
``minor change rule.'' Similarly, while we cannot quantify the benefits 
from this proposal, some of the benefits include further minimization 
of the impacts of incidental take caused by the proposed action, which, 
in turn, further mitigates some of the environmental ``costs'' 
associated with that action. In allowing for residual impacts to be 
addressed, the proposal may also reduce the accumulation of adverse 
impacts to the species that is often referred to as ``death by a 
thousand cuts.'' Sources of offsetting measures, such as conservation 
banks and in-lieu fee programs, have proven in other analogous contexts 
to be a cost-effective means of mitigating environmental impacts and 
may have the potential to enhance mitigative measures directed at the 
loss of endangered and threatened species when they are applied 
strategically. See, e.g., U.S. Fish and Wildlife Service Mitigation 
Policy and Endangered Species Act Compensatory Mitigation Policy, 
Appendix 1, 501 FW 3 (May 15, 2023) or NOAA Mitigation Policy for Trust 
Resources, NOA 216-123 (July 22, 2022).
    These changes provide transparency, clarity, and more closely 
comport with the text of the ESA. We, therefore, do not anticipate any 
material effects such that the rule would have an annual effect that 
would reach or exceed $200 million or would adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, territorial, or Tribal governments or communities.

Regulatory Flexibility Act

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this proposed rule would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this proposed rule would not impose a cost of $100 
million or more in any given year on local or State governments or 
private entities. A small government agency plan is not

[[Page 40762]]

required. As explained above, small governments would not be affected 
because the proposed rule would not place additional requirements on 
any city, county, or other local municipalities.
    (b) This proposed rule would not produce a Federal mandate on 
State, local, or Tribal governments or the private sector of $100 
million or greater in any year; that is, this proposed rule is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. This proposed rule would impose no additional management or 
protection requirements on State, local, or Tribal governments.

Takings (E.O. 12630)

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

Federalism (E.O. 13132)

    In accordance with E.O. 13132, we have considered whether this 
proposed rule would have significant federalism effects and have 
determined that a federalism summary impact statement is not required. 
This proposed rule pertains only to improving and clarifying the 
interagency consultation processes under the ESA and would not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

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

Government-to-Government Relationship With Tribes

    In accordance with E.O. 13175 ``Consultation and Coordination with 
Indian Tribal Governments,'' the Department of the Interior's manual at 
512 DM 2, and the Department of Commerce (DOC) ``Tribal Consultation 
and Coordination Policy'' (May 21, 2013), DOC Departmental 
Administrative Order (DAO) 218-8, and NOAA Administrative Order (NAO) 
218-8 (April 2012), we are considering possible effects of this 
proposed rule on federally recognized Indian Tribes and Alaska Native 
Corporations. This proposed rule is general in nature and does not 
directly affect any specific Tribal lands, treaty rights, or Tribal 
trust resources. Therefore, we preliminarily conclude that this 
proposed rule does not have ``tribal implications'' under section 1(a) 
of E.O. 13175. Thus, formal government-to-government consultation is 
not required by E.O. 13175 and related policies of the Departments of 
Commerce and the Interior. We will continue to collaborate and 
coordinate with Tribes and Alaska Native Corporations on issues related 
to federally listed species and their habitats. See Joint Secretaries' 
Order 3206 (``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act,'' June 5, 1997) and 
Joint Secretaries' Order 3225 (``Endangered Species Act and Subsistence 
Uses in Alaska (Supplement to Secretarial Order 3206'')).

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

National Environmental Policy Act

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

Endangered Species Act

    In developing this proposed rule, the Services are acting in their 
unique statutory role as administrators of the Act and are engaged in a 
legal exercise of interpreting the standards of the Act. The Services' 
promulgation of interpretive rules that govern their implementation of 
the Act is not an action that is in itself subject to the Act's 
provisions, including section 7(a)(2). The Services have a historical 
practice of issuing their general implementing regulations under the 
ESA without undertaking section 7 consultation. Given the plain 
language, structure, and purposes of the ESA, we find that Congress 
never intended to place a consultation obligation on the Services' 
promulgation of implementing regulations under the Act. In contrast to 
actions in which we have acted principally as an ``action agency'' in 
implementing the Act to propose or take a specific action (e.g., 
issuance of section 10 permits and actions under statutory authorities 
other than the ESA), here, the Services are carrying out an action that 
is at the very core of their unique statutory role as administrators--
promulgating general implementing regulations interpreting the terms 
and standards of the statute.

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

    E.O. 13211 requires agencies to prepare statements of energy 
effects when undertaking certain actions. The proposed revised 
regulations are not expected to affect energy supplies, distribution, 
and use. Therefore, this action is a not a significant energy action, 
and no statement of energy effects is required.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;

[[Page 40763]]

    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Authority

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

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Proposed Regulation Promulgation

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

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

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

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

Subpart A--General

0
2. Amend Sec.  402.02 by revising the definitions of ``Effects of the 
action'', ``Environmental baseline'', and ``Reasonable and prudent 
measures'' to read as follows:


Sec.  402.02  Definitions.

* * * * *
    Effects of the action are all consequences to listed species or 
critical habitat that are caused by the proposed action, including the 
consequences of other activities that are caused by the proposed action 
but that are not part of the action. A consequence is caused by the 
proposed action if it would not occur but for the proposed action and 
it is reasonably certain to occur. Effects of the action may occur 
later in time and may include consequences occurring outside the 
immediate area involved in the action.
    Environmental baseline refers to the condition of the listed 
species or its designated critical habitat in the action area, without 
the consequences to the listed species or designated critical habitat 
caused by the proposed action. 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 in process. The impacts to listed species or designated 
critical habitat from Federal agency activities or existing Federal 
agency facilities that are not within the agency's discretion to modify 
are part of the environmental baseline.
* * * * *
    Reasonable and prudent measures refer to those actions the Director 
considers necessary or appropriate to minimize the impact of the 
incidental take on the species.
* * * * *

Subpart B--Consultation Procedures

0
3. Amend Sec.  402.14 by revising paragraph (i) to read as follows:


Sec.  402.14  Formal consultation.

* * * * *
    (i) Incidental take. (1) In those cases where the Service concludes 
that an action (or the implementation of any reasonable and prudent 
alternatives) and the resultant incidental take of listed species will 
not violate section 7(a)(2), and, in the case of marine mammals, where 
the taking is authorized pursuant to section 101(a)(5) of the Marine 
Mammal Protection Act of 1972, the Service will provide with the 
biological opinion a statement concerning incidental take that:
    (i) Specifies the impact of incidental taking as the amount or 
extent of such taking. A surrogate (e.g., similarly affected species or 
habitat or ecological conditions) may be used to express the amount or 
extent of anticipated take, provided that the biological opinion or 
incidental take statement: Describes the causal link between the 
surrogate and take of the listed species, explains why it is not 
practical to express the amount or extent of anticipated take or to 
monitor take-related impacts in terms of individuals of the listed 
species, and sets a clear standard for determining when the level of 
anticipated take has been exceeded.
    (ii) Specifies those reasonable and prudent measures that the 
Director considers necessary or appropriate to minimize such impact of 
incidental taking on the species.
    (iii) In the case of marine mammals, specifies those measures that 
are necessary to comply with section 101(a)(5) of the Marine Mammal 
Protection Act of 1972 and applicable regulations with regard to such 
taking.
    (iv) Sets forth the terms and conditions (including, but not 
limited to, reporting requirements) that must be complied with by the 
Federal agency or any applicant to implement the measures specified 
under paragraphs (i)(1)(ii) and (iii) of this section.
    (v) Specifies the procedures to be used to handle or dispose of any 
individuals of a species actually taken.
    (2) Reasonable and prudent measures, along with the terms and 
conditions that implement them, cannot alter the basic design, 
location, scope, duration, or timing of the action, may involve only 
minor changes, and may include measures implemented inside or outside 
of the action area that avoid, reduce, or offset the impact of 
incidental take.
    (3) Priority should be given to developing reasonable and prudent 
measures and terms and conditions that avoid or reduce the amount or 
extent of incidental taking anticipated to occur within the action 
area. To the extent it is anticipated that the action will cause 
incidental take that cannot feasibly be avoided or reduced in the 
action area, the Services may set forth additional reasonable and 
prudent measures and terms and conditions that serve to minimize the 
impact of such taking on the species inside or outside the action area.
    (4) In order to monitor the impacts of incidental take, the Federal 
agency or any applicant must report the progress of the action and its 
impact on the species to the Service as specified in the incidental 
take statement. The reporting requirements will be established in 
accordance with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 216.105 and 
222.301(h) for NMFS.
    (5) If during the course of the action the amount or extent of 
incidental taking, as specified under paragraph (i)(1)(i) of this 
section, is exceeded, the Federal agency must reinitiate consultation 
immediately.
    (6) Any taking that is subject to a statement as specified in 
paragraph (i)(1) of this section and that is in compliance with the 
terms and conditions of that statement is not a prohibited taking under 
the Act, and no other authorization or permit under the Act is 
required.
    (7) For a framework programmatic action, an incidental take 
statement is not required at the programmatic level; any incidental 
take resulting from any action subsequently authorized, funded, or 
carried out under the program will be addressed in subsequent section 7

[[Page 40764]]

consultation, as appropriate. For a mixed programmatic action, an 
incidental take statement is required at the programmatic level only 
for those program actions that are reasonably certain to cause take and 
are not subject to further section 7 consultation.
* * * * *
0
4. Amend Sec.  402.16 by revising the introductory text of paragraph 
(a) to read as follows:


Sec.  402.16  Reinitiation of consultation.

    (a) Reinitiation of consultation is required and shall be requested 
by the Federal agency, where discretionary Federal involvement or 
control over the action has been retained or is authorized by law and:
* * * * *


Sec.  402.17  [Removed]

0
5. Remove Sec.  402.17

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

Richard Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere, NOAA 
Administrator, National Oceanic and Atmospheric Administration.
[FR Doc. 2023-13054 Filed 6-21-23; 8:45 am]
BILLING CODE 3510-22-4333-15-P