[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Rules and Regulations]
[Pages 24268-24298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06902]



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Vol. 89

Friday,

No. 67

April 5, 2024

Part IV





Department of the Interior





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 Fish and Wildlife Service





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 402





Endangered and Threatened Wildlife and Plants; Regulations for 
Interagency Cooperation; Final Rule

  Federal Register / Vol. 89 , No. 67 / Friday, April 5, 2024 / Rules 
and Regulations  

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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-245-FF09E300000; 
Docket No. NMFS-240325-0087]
RIN 1018-BF96; 0648-BK48


Endangered and Threatened Wildlife and Plants; 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: Final rule.

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SUMMARY: FWS and NMFS (collectively referred to as the ``Services'' or 
``we'') finalize revisions to portions of our regulations that 
implement section 7 of the Endangered Species Act of 1973, as amended 
(``Act''). The revisions to the regulations clarify, interpret, and 
implement portions of the Act concerning the interagency cooperation 
procedures.

DATES: This final rule is effective May 6, 2024.

ADDRESSES: Public comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
are available online at https://www.regulations.gov at Docket No. FWS-
HQ-ES-2021-0104.

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 Secretaries of the Interior and Commerce (the ``Secretaries'') 
share responsibilities for implementing most of the provisions of the 
Endangered Species Act, as amended (hereafter referred to as ``ESA'' or 
``the Act;'' 16 U.S.C. 1531 et seq.), and authority to administer the 
Act has been delegated by the respective Secretaries to the Director of 
FWS and the Assistant Administrator for NMFS. Together, the Services 
have promulgated 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 ensure 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. These joint regulations, which are codified in 
the Code of Federal Regulations at 50 CFR part 402, were most recently 
revised in 2019 (84 FR 44976, August 27, 2019; hereafter referred to as 
``the 2019 rule''). Those revised regulations became effective October 
28, 2019 (84 FR 50333, September 25, 2019).
    Executive Order 13990 (hereafter, ``E.O. 13990''), which was 
entitled ``Protecting Public Health and the Environment and Restoring 
Science To Tackle the Climate Crisis,'' was issued January 20, 2021, 
and directed all departments and agencies to immediately 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 litigation over the 2019 rule, the Services proposed 
revisions to portions of the ESA implementing regulations at 50 CFR 
part 402.
    On June 22, 2023, we published in the Federal Register (88 FR 
40753) a proposed rule to amend portions of our regulations that 
implement section 7 of the Act. We accepted public comments on the June 
22, 2023, proposed rule for 60 days, ending August 21, 2023. The 
proposed rule included clarifying the definitions of ``effects of the 
action,'' ``environmental baseline,'' and ``reasonable and prudent 
measures''; removing Sec.  402.17, ``Other provisions,'' which had been 
promulgated with the intent of clarifying several aspects of the 
process of determining whether an activity or consequence is reasonably 
certain to occur; clarifying the responsibilities of the Federal agency 
and the Services regarding the requirement to reinitiate consultation; 
and revising the regulations at 50 CFR 402.02 and 402.14 regarding the 
scope of reasonable and prudent measures (RPMs) in an incidental take 
statement (ITS). The proposed rule also sought 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. The Services also conducted outreach to 
Federal and State agencies, industries regularly involved in section 
7(a)(2) consultation, Tribes, nongovernmental organizations, and other 
interested parties and invited their comment on the proposal.
    Following consideration of all public comments received in response 
to our proposed rule, we are proceeding to finalize revisions to our 
implementing regulations at 50 CFR part 402 as proposed, with no 
changes. The basis and purpose for this final rule are reflected in our 
explanation in the June 2023 proposed rule, the responses to comments 
below, as well as the 2019 final rule for those aspects of the 2019 
final rule we are not changing here. These revisions will further 
improve and clarify interagency consultation. With the exception of the 
revisions at 50 CFR 402.02 and 402.14 regarding the RPMs in an 
incidental take statement (ITS), the revisions do not make any changes 
to existing practice of the Services in implementing section 7(a)(2) of 
the Act.
    In the event any provision is invalidated or held to be 
impermissible as a result of a legal challenge, the ``remainder of the 
regulations could function sensibly without the stricken provision.'' 
Belmont Mun. Light Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022) 
(quoting MD/DC/DE Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 
2001)). Because each of the revisions stands on its own, the Services 
view each revision as operating independently from the other revisions. 
Should a reviewing court invalidate any particular revision(s) of this 
rulemaking, the

[[Page 24269]]

remaining portions would still allow the Services to issue biological 
opinions and incidental take statements that comprehensively evaluate 
the effects of federal actions on listed species and critical habitat 
and adequately address the impacts of incidental take that are 
reasonably certain to occur. Specifically, these distinct provisions 
include: (1) revisions to the definition of ``environmental baseline,'' 
(2) removal of section Sec.  402.17 and conforming revisions to the 
definition of ``effects of the action,'' (3) revisions to Sec.  402.16, 
and (4) revisions to the regulatory provisions regarding the scope of 
reasonable and prudent measures in incidental take statements 
(Sec. Sec.  402.02 and 402.14(i)). To illustrate this with one possible 
example, in the event that a reviewing court were to find the revision 
adopted in 2019 that described expedited consultations at Sec.  
402.14(l) is invalid, that finding would not affect the current 
revisions to the provisions for reinitiation of consultation at Section 
Sec.  402.16.
    The revisions to the regulations in this final rule are 
prospective; they are not intended to require that any previous 
consultations under section 7(a)(2) of the Act be reevaluated at the 
time this final rule becomes effective (see DATES, above).
    This rule is one of three rules publishing in today's Federal 
Register that make changes to the regulations that implement the ESA. 
Two of these final rules, including this one, are joint between the 
Services, and one final rule is specific to FWS.

Summary of Comments and Responses

    In our June 22, 2023, proposed rule (88 FR 40753), we requested 
public comments by August 21, 2023. We received more than 140,000 
comments by that date from individual members of the public, States, 
Tribes, industry organizations, legal foundations and firms, and 
environmental organizations. We received several requests for 
extensions of the public comment period. However, we elected not to 
extend the public comment period because we found the 60-day comment 
period provided sufficient time for a thorough review of the proposed 
revisions. The majority of the proposed revisions are to portions of 
the regulations that were previously revised in 2019, and we jointly 
announced in a public press release and on a Service website our 
intention to revise these regulations in June of 2021. The number of 
comments received indicated that members of the public were aware of 
the proposed rule and had adequate time to review it. In addition, we 
provided six informational sessions for a wide variety of audiences. 
Over 500 attendees participated in these sessions, and we addressed 
questions from the participants during each session. Finally, on our 
website, we provided additional information about the proposed 
regulations, such as frequently asked questions and a prerecorded 
presentation on the proposed revisions.
    Most of the comments we received were non-substantive, expressing 
either general support for, or opposition to, the proposed rule with no 
supporting information or analysis. Other comments expressed opinions 
beyond the scope of this rulemaking. We do not, however, respond to 
comments that are beyond the scope of this rulemaking action or that 
were not related to the 2019 rule. The vast majority of the comments 
received were nearly identical statements from individuals indicating 
their general support for the proposed revisions to the 2019 rule and 
concern for not including more revisions to the 2019 rule, but not 
containing substantive content. We also received approximately 95 
letters with detailed substantive comments with specific rationales for 
support of or opposition to specific portions of the proposed rule.
    Before addressing each of the comments, we reiterate the Services' 
intention to provide additional guidance in an updated ESA Section 7 
Consultation Handbook (Consultation Handbook) that we anticipate making 
available for public comment after the publication of this final rule. 
Related to topics addressed in this final rule, the additional guidance 
will address application of the definition of ``effects of the action'' 
and ``environmental baseline,'' examples for defining when an activity 
is reasonably certain to occur and guidance on application of the two-
part causation test, additional information on consulting 
programmatically, guidance on implementation of section 7(a)(1) of the 
Act, and implementation of the expanded scope of RPMs.
    Recognizing that the revisions to the regulatory provisions 
expanding the scope of RPMs represent a change to the Services' 
practice, we would also like to highlight some of the key aspects of 
that amendment, which are discussed in more detail in the response to 
comments below. First, the Services find that the revision allowing for 
the use of offsets as RPMs will more fully effectuate the conservation 
goals of the ESA by addressing impacts of incidental take that may not 
have been sufficiently minimized through measures confined to avoiding 
or reducing incidental take levels. In that regard, our prior approach, 
which restricted RPMs to measures that avoid or reduce incidental take, 
has led to the continued deterioration of the condition of listed 
species and their critical habitat through the accumulation of impacts 
from incidental take over time. Further, those impacts from incidental 
take may have been more adequately addressed through offsetting 
measures.
    Second, as explained in our response to comments below, the 
respective revisions to Sec.  402.02 and Sec.  402.14(i), which 
recognize the use of offsets as RPMs, are supported by the plain 
language of the ESA. The relevant language at ESA section 
7(b)(4)(C)(ii) plainly states that RPMs are to include measures that 
minimize the ``impacts'' of incidental take, not just incidental take 
itself. Like measures that avoid or reduce incidental take, offsetting 
measures also ``minimize'' the impacts of incidental take on the 
species. The legislative history of the 1982 amendments of the ESA also 
confirms that Congress did not intend to preclude the Services from 
specifying offsets as RPMs that minimize the impacts of incidental 
take. Lastly, the Services do not expect offsetting measures that occur 
outside the action area to violate the ``minor change rule.'' In most 
instances, offsetting measures operate as additional measures to 
minimize impacts of incidental take that would not prevent the action 
subject to consultation from proceeding essentially as proposed. 
Accordingly, text was added at 50 CFR 402.14(i)(2) to expressly 
recognize that offsets may occur within or outside the action area, 
consistent with the ``minor change rule'' (i.e., the requirement that 
RPMs specify only minor changes that do not alter the basic design, 
location, duration, or timing of the action).
    In addition, the Services would like to address a particular issue 
at the outset of this portion of the preamble. Several commenters 
asserted that a recent decision from the D.C. Circuit Court of Appeals, 
Maine Lobstermen's Association v. NMFS, 70 F.4th 582 (D.C. Cir. 2023) 
(``MLA''), weighs against the Services removing Sec.  402.17 from the 
section 7 regulations, especially the ``clear and substantial 
information'' standard that applies in determining if a consequence is 
reasonably certain to occur. We explain here our understanding of the 
decision and why it does not undermine our regulatory revision to 
remove Sec.  402.17. Because the subject consultation in the MLA 
litigation required NMFS to grapple with scientific uncertainties, we 
also offer additional explanation of how the

[[Page 24270]]

Services address such uncertainties, in general, consistent with the 
holding in MLA and section 7(a)(2) of the Act. We respond to some of 
the more specific comments in the responses section below.
    In MLA, lobster fishermen challenged a NMFS no-jeopardy biological 
opinion that analyzed the effects of authorizing the Federal lobster 
and Jonah crab fisheries in the Northeast on the highly endangered 
North Atlantic right whale. In developing the biological opinion, NMFS 
faced uncertainties in determining the anticipated level of right whale 
entanglements and any subsequent deaths the fishery was anticipated to 
cause over the next 50 years. The D.C. Circuit Court of Appeals found 
that NMFS impermissibly resolved these uncertainties by asserting the 
legislative history of the ESA required NMFS to apply worst case 
scenarios. See 70 F.4th at 597 (``When answering public comments the 
Service blamed the Congress, insisting that . . . the legislative 
history required it to deal in worst-case scenarios because `we need to 
give the benefit of the doubt to the species.' ''). The MLA court held 
that legislative history cannot ``compel a presumption in favor of the 
species not required by the statute'' and that, under the ESA, the 
Services facing scientific uncertainty may not simply resort to 
``worst-case scenarios or pessimistic assumptions,'' but must instead 
``strive to resolve or characterize the uncertainty through accepted 
scientific techniques.'' Id. at 586, 598, 600.
    That decision does not address the Services' discretion to resolve 
ambiguities in the best available scientific data generally, or the 
Services' decision to remove Sec.  402.17 from the section 7 
regulations. First, the court invalidated only the particular way in 
which NMFS resolved uncertainties in MLA--namely that the agency, in 
the court's view, made a legal determination that it had to give the 
benefit of the doubt to an endangered species, rather than making a 
scientific judgment based on the best available scientific data. The 
court stated, for example, that agencies may not ``jump to a 
substantive presumption [in favor of the endangered species] that 
distorts the analysis of effects and creates false positives.'' MLA, 70 
F.4th at 600. But the court also made clear that when agencies make ``a 
scientifically defensible decision'' by, for instance, ``striv[ing] to 
resolve or characterize the uncertainty through accepted scientific 
techniques,'' their ``predictions will be entitled to deference.'' Id. 
The court further anticipated that NMFS ``will be able to make'' such 
scientifically defensible decisions ``[i]n most realistic cases'' and 
thereby avoid the specific issues the court found problematic in MLA. 
Id. The Services historically have resolved ambiguities or 
uncertainties in the data based on such ``accepted scientific 
techniques.'' As a result, the Services anticipate that the MLA 
decision will have limited implications for the Services' overall 
implementation of section 7(a)(2).
    Second, MLA does not constrain the Services' decision to remove 
Sec.  402.17, contrary to some commenters' assertions. As discussed 
more fully below, the Services are removing the ``clear and substantial 
information'' requirement because it could be read as inappropriately 
restricting the scope of ``the best available scientific and commercial 
data'' by demanding a degree of certitude and quantification. The best 
available data are not always free of ambiguities and thus ``clear,'' 
nor are they invariably quantifiable or ``substantial'' in quantity. As 
the Services explained in the 2019 section 7 final rule: The best 
scientific and commercial data available is not limited to peer-
reviewed, empirical, or quantitative data but may include the knowledge 
and expertise of Service staff, Federal action agency staff, 
applicants, and other experts, as appropriate, applied to the questions 
posed by the section 7(a)(2) analysis when information specific to an 
action's consequences or specific to species response or extinction 
risk is unavailable. Methods such as conceptual or quantitative models 
informed by the best available information and appropriate assumptions 
may be required to bridge information gaps in order to render the 
Services' opinion regarding the likelihood of jeopardy or adverse 
modification. Expert elicitation and structured decision-making 
approaches are other examples of approaches that may also be 
appropriate to address information gaps. (84 FR 45000)
    MLA does not require a different view. In interpreting section 7(a) 
of the ESA, the court held that agencies must use ``the best available 
scientific data, not the most pessimistic.'' MLA, 70 F.4th at 599. The 
court did not hold that, within the best available scientific data, the 
statute permits reliance only on clear data that lack uncertainties or 
a substantial amount of such data. And while the court made a passing 
reference to Sec.  402.17, it did so to support the proposition that, 
even under the Services' own ``interpretive rules,'' NMFS's approach in 
that case fell short because, in the court's view, it lacked a clear 
and substantial basis for predicting reasonably certain effects. The 
court did not indicate the statute demands ``clear and substantial 
information.''
    That understanding is consistent with the statutory text, which 
provides that each federal agency shall ``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.'' 16 U.S.C. 1536(a)(2) (emphases added). As the 
Supreme Court has explained, ``insure'' in section 7(a)(2) means ``[t]o 
make certain, to secure, to guarantee.'' National Association of Home 
Builders v. Defenders of Wildlife, 551 U.S. 644, 667 (2008) (quotation 
marks omitted). Thus, agencies do not determine the effects of an 
action using ``the best scientific and commercial data available'' in a 
vacuum. Rather, the ESA envisions that agencies would make any such 
scientific judgments in service of their overarching responsibility to 
``make certain'' their actions are ``not likely'' to jeopardize 
protected species. Accordingly, a regulation that impairs agencies' 
ability to carry out that duty by requiring them to disregard any 
reasonably certain effects that have ambiguities in the underlying 
information or that may be based on less than substantial information 
could be inconsistent with the statute.
    We note that even with the removal of Sec.  402.17, the two-part 
causation test (i.e., the ``but for'' and ``reasonably certain to 
occur'' standards) for determining whether a particular activity or 
consequence falls under the definition of ``effects of the action'' 
remains in place. As the Services explained in the 2019 rule, the 
``reasonably certain to occur'' standard adds an element of 
foreseeability and a limitation to our causation standard for 
determining ``effects of the action.'' 84 FR at 44991. That standard 
prevents the Services from engaging in speculative analyses, though it 
does not require a guarantee that an effect will occur. See 51 FR 19926 
at 19932-19933; June 3, 1986 (1986 section 7 regulations final rule); 
80 FR 26832 at 26837; May 11, 2015 (incidental take statement final 
rule); 83 FR 35178 at 35183; July 25, 2018 (2018 proposed rule to 
update section 7 regulations). These safeguards ensure that when faced 
with scientific uncertainties, the Services will not automatically rely 
on ``worst-case scenarios.'' See 84 FR 44967 at 45000; August 27, 2019. 
Instead, consistent with the statute and our regulations, the Services 
will continue to evaluate the best available evidence to arrive at 
principled scientific determinations in rendering our opinion under 
section 7

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of the Act. Similarly, in rendering our opinion and resolving 
uncertainties, we will continue to be mindful of the fundamental duty--
required by the text of section 7(a)(2)--to ``insure'' the agency 
action is not likely to jeopardize species protected under the Act.
    Below, we summarize and respond to substantive and other relevant 
comments we received during the public comment period; we combined 
similar comments where appropriate.

Section 402.02--Definitions

Definition of ``Effects of the Action''

    As proposed, we are revising the definition of ``effects of the 
action'' by adding ``but that are not part of the action'' to the end 
of the first sentence and removing the parenthetical reference to Sec.  
402.17. The first sentence now reads: 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. The Services received a wide variety of comments on our 
proposed revisions to the definition of ``effects of the action.'' 
These comments ranged from support of the proposed revisions, requests 
to revert to the pre-2019 definition, and recommendations for 
modifications to the proposed definition, largely to incorporate 
portions of Sec.  402.17 in the ``effects of the action'' definition if 
that section is removed as had been proposed. Commenters in support of 
the revisions to the 2019 definition generally agreed with the 
reasoning of the Services but many requested additional guidance on the 
application of the definition. The Services intend to provide 
additional guidance in an updated Consultation Handbook, which we 
anticipate publishing in the Federal Register for public comment after 
issuance of this final rule.
    Commenters who requested the Services return to the pre-2019 
definition of ``effects of the action'' generally pointed to the 
removal of the terms ``direct,'' ``indirect,'' interrelated,'' and 
``interdependent'' and the use of the terms ``consequences'' and 
``other activities,'' as well as the two-part causation test as being a 
change in practice that narrows the scope of the ``effects of the 
action.'' The Services respectfully decline to return to the pre-2019 
definition of ``effects of the action.'' We reassert our position that 
the retained changes in the 2019 rule and the revisions adopted from 
the 2023 proposed rule maintain the pre-2019 scope of the effects 
analysis. These changes provide further clarity in the application of 
the longstanding practice of determining the full range of effects of a 
proposed action under consultation, including those that result from 
other activities that would not occur but for the proposed action. 
Under the pre-2019 definition, there was undue focus on categorizing 
the specific type of effect analyzed as part of the ``effects of the 
action'' (i.e., assigning effects to the categories of direct, 
indirect, interrelated, or interdependent). The changes promulgated in 
2019 to the definition avoided that exercise of categorizing the 
effects, but all these effects are, nevertheless, still analyzed as 
part of the ``effects of the action.'' Many commenters requested the 
Services retain the reference to Sec.  402.17 in the ``effects of the 
action'' definition and the content of Sec.  402.17. The comments 
related to Sec.  402.17 and the ``effects of the action'' definition 
centered on the two-part causation test, particularly the framework 
provided for determining whether an activity or consequence is 
reasonably certain to occur. Those comments that focused on Sec.  
402.17 are addressed below in the preamble to this final rule.
    Comment 1: One commenter recommended adding the word ``likely'' to 
the definition of ``effects of the action'' to assist in distinguishing 
that consequences of the action must be likely to occur in order to 
result in effects.
    Response: The current definition and the ``but for'' and 
``reasonably certain to occur'' causation provide a clear test of what 
constitutes an effect of the action, including for other activities 
caused by the action. Adding the term ``likely'' would add ambiguity 
rather than clarifying the test for an effect of the action. The 
Services respectfully decline this requested change to the definition 
of ``effects of the action.''
    Comment 2: Several commenters proposed incorporating the statutory 
requirement to use the best available scientific and commercial data 
into the ``effects of the action'' definition to support the two-part 
causation test.
    Response: The last sentence of section 7(a)(2) of the Act requires 
both the Federal action agencies and the Services to use ``the best 
scientific and commercial data available.'' This requirement applies to 
all aspects of the Services' application of section 7(a)(2) 
consultation, including determining what activities or consequences are 
considered reasonably certain to occur when analyzing the ``effects of 
the action'' and any ``cumulative effects.'' Therefore, we respectfully 
decline the suggestion to add ``using the best scientific and 
commercial data available'' to the ``effects of the action'' definition 
because using the best scientific and commercial data available is 
already an explicit requirement of the Act for agencies and 
incorporated into our formulation of the biological opinion under the 
regulations. See 16 U.S.C. 1536(a)(2), 50 CFR 402.14(g)(8).
    Comment 3: Commenters recommended modifications to the definition 
of ``effects of the action'' to distinguish ``activities'' from the 
proposed action in order to apply the two-part causation test to both 
``activities'' and ``consequences.''
    Response: The modification of the definition in the 2023 proposed 
rule to add ``but that are not part of the action'' addresses this 
recommendation so the Services did not further modify the ``effects of 
the action'' definition. The reference to ``activities'' in the first 
sentence of the 2019 ``effects of the action'' definition and in the 
revised version of the definition in this final rule is to those 
activities that are caused by, but are not part of, the proposed 
action. Under the pre-2019 definition, as described in the 2018 
preamble for the proposed rule to the 2019 rule, the intent in changing 
the definition to ``other activities'' that would have been considered 
``indirect effects'' or ``interrelated'' or ``interdependent'' actions 
was for consultations to focus on identifying the full range of the 
consequences rather than categorizing them (84 FR 44976-44977, August 
27, 2019; 83 FR 35178 at 35183, July 25, 2018). The two-part causation 
test is used to determine when a consequence of these other activities 
is caused by the proposed action because the other activities (and the 
consequences of them) would not occur ``but for'' the proposed action 
and are ``reasonably certain to occur.''
    Comment 4: Several commenters suggested returning to the 1986 
``effects of the action'' definition to use the terms ``direct,'' 
``indirect,'' ``interrelated,'' and ``interdependent.'' They believe 
the 2019 definition narrows the scope of ``effects of the action'' and 
argue that collapsing direct and indirect effects into a single 
``consequences'' requirement changes past practice because indirect 
effects did not require ``but for'' causation prior to 2019. Commenters 
noted that the 1998 Consultation Handbook required ``but for'' only in 
analyzing ``take'' resulting from the action, as well as interrelated 
and interdependent actions.
    Response: The 1986 definition of ``indirect effects'' referred to 
effects that are ``caused by'' the proposed action whereas the 
Services' 1998 Consultation

[[Page 24272]]

Handbook includes the phrase ``caused by or results from,'' both of 
which require an assessment of a causal connection between an action 
and an effect. The ``but for'' causation test in the 2019 revised 
definition of ``effects of the action'' and as modified in this final 
rule is similar to ``caused by'' or ``caused by or results from'' in 
that both tests speak to a connection between the proposed action and 
the consequent results of that action, whether they be (1) physical, 
chemical, or biotic consequences to the environment, the species or 
critical habitat, or (2) activities that would not occur but for the 
proposed action. Both tests require a determination of factual 
causation, and since 2019 we have not observed a change in the 
Services' practice in applying ``but for'' causation to consequences 
once termed ``indirect effects'' compared to the regulatory term 
``caused by.'' As we noted in the preamble of the 2018 proposed rule, 
``[i]t has long been our practice that identification of direct and 
indirect effects as well as interrelated and interdependent actions is 
governed by the `but for' standard of causation.'' Similarly, as 
defined in Sec.  402.02, ``incidental take refers to takings that 
result from . . . an otherwise lawful activity.'' 50 CFR 402.02 
(emphasis added). Moreover, our 1998 Consultation Handbook states: ``In 
determining whether the proposed action is reasonably likely to be the 
direct or indirect cause of incidental take, the Services use the 
simple causation principle: i.e., `but for' the implementation of the 
proposed action. . . .'' (1998 Consultation Handbook, page 4-47). For 
these reasons, the Services continue to maintain that the ``but for'' 
test reflects the Services' long-standing practice and has not changed 
the scope of our analyses. Therefore, we decline the commenters' 
request.
    Comment 5: Commenters recommended that consideration of effects of 
ongoing agency actions not be moved to the ``environmental baseline.'' 
They argued that, if ongoing agency actions are moved to the 
``environmental baseline,'' it will be difficult for the Services to 
determine whether a species already exists in a state of baseline 
jeopardy because of these previously authorized ongoing Federal 
actions.
    Response: The concept of ``baseline jeopardy'' originates from 
cases like Nat'l Wildlife Fed. v. NMFS, 524 F.3d 917, 930 (9th Cir. 
2008) (``[l]ikewise, even where baseline conditions already jeopardize 
a species, an agency may not take action that deepens the jeopardy by 
causing additional harm''). As we noted in our responses to comments in 
the 2019 rule and re-affirm here, the Services' position on ``baseline 
jeopardy'' remains that the statute and regulations do not contain any 
provisions under which a species should be found to be already (pre-
action) in an existing status of ``baseline jeopardy,'' such that any 
additional adverse impacts must be found automatically to meet the 
regulatory standards for ``jeopardize the continued existence of'' or 
``destruction or adverse modification.'' See 84 FR 44976 at 44987; 
August 27, 2019. Please see the responses to comments on the definition 
of ``environmental baseline'' below for more details.
    Comment 6: Commenters noted that, while the 2019 definition may 
reflect the Services' longstanding practice, codifying the two-pronged 
test affects agencies' ability to fulfill their duties under section 7. 
Many commenters reiterated concerns raised during rulemaking on the 
2019 rule that moving ongoing actions and their effects from the 
``effects of the action'' to the ``environmental baseline'' undermines 
the Services' ability to conduct a thorough jeopardy analysis. 
Commenters argue that moving ongoing activities to the ``environmental 
baseline'' will exclude them from the jeopardy analysis.
    Response: The Services respectfully disagree with the comments that 
use of the two-part causation test affects the ability of agencies to 
fulfill their section 7(a)(2) responsibilities. As we stated in 2019 
and in the preamble to the 2023 proposed rule, the use of the two-part 
causation test has been part of our practice since the 1986 final rule 
on interagency cooperation (51 FR 19926 at 19933; June 3, 1986) (the 
Services did not define ``effects of the action'' in the original 1978 
section 7 regulations (43 FR 870; January 4, 1978)). Consultation under 
the Act is conducted on the effects of the entire proposed action (all 
consequences caused by the proposed action). To further clarify, 
proposed actions for ongoing activities, even those that incrementally 
improve conditions may still have adverse effects (i.e., are not wholly 
beneficial), and require formal consultation. The analysis of an 
action's effects is fact-based and consultation-specific. In terms of 
the jeopardy and destruction-or-adverse-modification analyses, the 
Services consider the effects of the action added to the 
``environmental baseline'' and cumulative effects in light of the 
status of the species and critical habitat. Therefore, removing the 
``environmental baseline'' definition from the definition of ``effects 
of the action'' does not affect either jeopardy or destruction-or-
adverse-modification analyses, and the Services decline the suggestion 
to retain ``environmental baseline'' in the ``effects of the action'' 
definition. We provide additional discussion of how ``ongoing 
activities'' are considered for purposes of the ``environmental 
baseline'' in the ``environmental baseline'' section of this preamble 
below.
    Comment 7: Other commenters asserted that the ``effects of the 
action'' definition is overly broad and will unnecessarily restrict 
future projects requiring section 7 consultation because of the need 
for the Services and Federal action agencies to analyze an array of 
effects that are unrelated or only tangentially related to the proposed 
action. Conversely, several commenters asserted the proposed changes to 
the definition specific to the two-part causation test raise the bar 
for any future review of the effects of a proposed action without 
supporting rationale as to why a higher bar is needed. These commenters 
argue that the ``but for'' and ``reasonably certain to occur'' 
requirements of the two-part causation test are too high given that 
``may affect'' is the trigger for consultation.
    Response: The revisions made in the 2019 rule and the further minor 
revisions in this final rule will not shift the scope of effects we 
consider under our revised definition of ``effects of the action.'' 
Therefore, as explained in the 2019 rule, our analyses will neither 
raise nor lower the bar for the scope of analysis of effects that has 
been in place since 1986. All the effects of the action considered 
since the 1986 revisions to the definition are still included in the 
scope of ``effects of the action,'' and no other effects or activities 
that are not caused by the proposed Federal action will be included. To 
the extent that commenters are asserting we should further restrict the 
definition of ``effects of the action'' to only those effects within 
the jurisdiction or control of the Federal agency, we decline this 
request for the same reasons discussed in 2019. See 84 FR 44991, August 
27, 2019. The revisions to the definition and the changes made in 2019 
did not change existing practice in determining the effects of the 
action, which includes what were referred to as direct, indirect, 
interrelated, and interdependent in the 1986 definition of ``effects of 
the action.'' The improvements to the definition in the 2019 rule and 
in this revision include the explicit establishment of the two-part 
test for effects, which codifies the Services' longstanding analysis in 
a clear standard in order to be more consistent

[[Page 24273]]

and transparent. The Services do not find that the 2019 definition or 
the revised definition in this rule narrows or broadens the scope of 
the effects that would be considered in a section 7(a)(2) consultation. 
Similar comments were made relating to Sec.  402.17; please see our 
responses pertaining to comments on that section of the proposed rule 
below in this preamble.
    Comment 8: One commenter argued that removing the definition of 
``reasonably certain to occur'' while leaving in the concept that 
effects are not bound by time or space will create an unworkable burden 
on the consulting agency because an agency will not be able to evaluate 
all possible effects. Eliminating the definition of ``reasonably 
certain'' removes the two-tier system for identifying effects.
    Response: The Services are retaining ``reasonably certain to 
occur'' in the revisions to the ``effects of the action'' definition as 
part of the two-part causation test. As discussed above, the revisions 
to the definition in this final rule will not shift the scope of 
effects we consider in section 7(a)(2) consultations. In addition, 
while we provided guidance on the factors to consider when determining 
whether other activities are ``reasonably certain to occur,'' the 
Services did not define the term and do not intend to define it because 
we are not setting limits on the types of activities that are 
reasonably certain to occur. We intend to provide further guidance in 
an updated Consultation Handbook. See also our response to comments 
related to Sec.  402.17.
    Comment 9: Several commenters recommended retaining Sec.  402.17 
and the reference to it in the ``effects of the action'' definition or 
incorporating the content of Sec.  402.17 in the definition if the 
section is removed from the regulations. Commenters also recommended 
examples for defining when an activity is reasonably certain to occur 
and guidance for action agencies and the Services to ensure consistency 
in the application of the test. In addition, commenters suggested 
regulatory language that considers additional factors such as the 
proximity of the action in relation to the effect, geographical 
distribution of effects, timing of the effect in relation to sensitive 
periods of a species' life cycle, the nature and duration of the 
effect, and disturbance frequency as described in the 1998 Consultation 
Handbook discussion on the multi-factor tests to analyze the effects of 
a proposed action and related activities on species and critical 
habitat. Conversely, another commenter supported the removal of Sec.  
402.17 but encouraged the Services to work towards a stricter, 
quantifiable definition of ``reasonably certain to occur.''
    Response: The Services support the recommendation to provide 
examples for defining when an activity is reasonably certain to occur 
and guidance on application of the two-part causation test. We believe 
this information is more appropriately addressed in an update to the 
Consultation Handbook rather than regulatory text. The Services update 
to the Consultation Handbook will incorporate changes to the 
regulations since the handbook was issued in 1998. For comments related 
to Sec.  402.17, please see that section of the preamble below.
    Comment 10: Some commenters indicated that the proposed changes to 
the ``effects of the action'' definition will cause greater uncertainty 
in terms of what to include in the effects of the action. Several also 
noted that the addition of the phrase ``but that are not part of the 
action'' to the definition is unclear and recommended that guidance be 
created by the Services to ensure the interpretation of ``not part of 
the action'' is consistent across offices and to clarify the scope or 
extent of activities outside the proposed action that will be analyzed. 
Conversely, other commenters believe the addition of ``but that are not 
part of the action'' is a helpful clarification and recommend further 
modification of the definition to clarify that the two-part causation 
test does not apply to the proposed action itself (as opposed to other 
activities caused by, but that are not part of, the proposed action).
    Response: As discussed previously, the Services believe the minor 
revisions to the definition in this final rule will not shift the scope 
of effects considered in section 7(a)(2) consultations. The addition of 
``but that are not part of the action'' to the definition is meant to 
maintain the scope of the analysis of the effects by clarifying that it 
includes other activities caused by the proposed action that are 
reasonably certain to occur. The Services respectfully decline the 
suggestion to further refine the definition to explicitly state that 
the two-part causation test does not apply to the proposed action 
itself but agree that guidance on the application of the two-part 
causation test is warranted and anticipate including this information 
in the updated Consultation Handbook.
    Comment 11: One commenter argued that the ``but for'' causation 
standard casts a wider net than a ``proximate cause'' standard. The 
commenter maintains that a proximate cause is a cause that directly 
produces an event and without which the event would not have occurred. 
``But for'' causation treats the effects of an action as a series of 
events and circumstances that can be traced to a particular action but 
without regard to whether either the agency action is responsible for 
or the agency has jurisdiction or authority to control those events and 
circumstances. The Services should revise the proposed ``effects of the 
action'' definition to eliminate the ``but for'' causation language and 
adopt a proximate cause standard.
    Response: There is no Federal standard definition for ``proximate 
cause,'' a term that developed through judicial decisions. Proximate 
cause can differ if used for assigning liability in criminal action as 
compared to civil matters, neither of which is directly relevant in the 
section 7(a)(2) context of evaluating the anticipated effects of 
proposed Federal actions on listed species and critical habitat. We 
declined to include a proximate cause element in our definition of 
``effects of the action'' in 2019 and do so again here. See 84 FR at 
44990-44991, August 27, 2019. As discussed above, the ``but for'' 
causation standard is, in essence, a factual causation standard. As 
part of regular practice in conducting a complete analysis of the 
effects of proposed Federal actions, the Services' practice is to apply 
the concepts of ``but for'' causation and ``reasonably certain to 
occur'' when identifying the effects of the action. The changes to the 
``effects of the action'' definition in our 2019 rule merely made them 
explicit. The Services' scope of the effects analysis did not change 
with the 2019 change to the ``effects of the action'' definition, and 
we do not anticipate a change in scope because of the minor changes to 
the ``effects of the action'' in this final rule.
    Comment 12: Several commenters stated that the ``reasonably certain 
to occur'' limitation applied only to ``indirect effects'' and 
``cumulative effects'' prior to the 2019 rule's ``effects of the 
action'' definition. They noted that this situation leads to exclusion 
of effects, but that uncertainty or data gaps should not be used to 
limit consideration of effects of a proposed agency action. They 
further argue that the reasonable certainty standard could conflict 
with the requirement to use the best available scientific and 
commercial data, particularly where there may be incomplete information 
or emerging science.
    Response: We reaffirm what we stated in the 2019 rule, that the 
two-part effects test adopted at that time does not alter the scope of 
the Services' analysis.

[[Page 24274]]

The Services also agree that, in applying our two-part effects test, we 
must use the best available scientific and commercial data, which is 
expressly required by the statute and as part of our regulations at 50 
CFR 402.14(g)(8). Consistent with considering the best available 
information, we will necessarily be required to exercise scientific 
judgment to resolve uncertainties and information gaps in applying our 
effects test. This process does not ignore effects but instead ensures 
that we adequately consider the range of effects caused by the proposed 
action. For further discussion relevant to this comment, please see the 
responses to comments regarding Sec.  402.17.
    Comment 13: Several commenters noted that the proposed change to 
the ``effects of the action'' definition will remove the framework for 
determining whether an activity or consequence is ``reasonably certain 
to occur'' that is critical for determining what to include in an 
agency's effects analysis, including when applying the standard to 
larger scales such as a program.
    Response: The Services respectfully disagree with these comments; 
the definition and current practice adequately capture the ``reasonably 
certain to occur'' standard. As described in the 2019 rule, a section 
7(a)(2) consultation performed at the level of a regional or national 
program is often referred to as a programmatic consultation, and often 
the proposed action falls into the category referred to as a framework 
programmatic action described in our 2015 rule revising incidental take 
statement regulations (80 FR 26832, May 11, 2015). In these instances, 
the ``but for'' and ``reasonably certain to occur'' parts of the test 
extend to the consequences that would be expected to occur under the 
program generally, but not to the specifics of actual projects that may 
receive future authorization under the program. Effects analyses at 
this more generalized level are necessary because the Federal agency 
often does not have specific information about the number, location, 
timing, frequency, precise methods, and intensity of the site-specific 
actions or activities for their program. We are able to provide an 
informed effects analysis at a more generalized level by analyzing the 
project design criteria, best management practices, standards and 
guidelines, and other provisions the program adopts to minimize the 
impact of future actions under the program.
    Alternatively, some Federal agencies may be able to provide 
somewhat more specific information on, e.g., the numbers, timing, and 
location of activities under their plan or program. In those instances, 
we may have sufficient information to address not only the generalized 
nature of the program's effects but also the specific anticipated 
consequences that are reasonably certain to occur from specific actions 
that will be subsequently authorized under the program. Additional 
guidance regarding application of the two-part causation test (``but 
for'' and ``reasonably certain to occur'') and programmatic 
consultation will be included in the updated Consultation Handbook. For 
more general discussion of the removal of the ``reasonably certain to 
occur'' framework provided by Sec.  402.17, please see the responses to 
comments on that section in the preamble below.
    Comment 14: Several commenters noted that the requirement that a 
``reasonably certain to occur'' finding be based on ``clear and 
substantial information'' has created confusion and conflicts with the 
statutory requirement to use the ``best scientific and commercial data 
available'' and agreed with the removal of Sec.  402.17 in its 
entirety. Another commenter supported retaining all of Sec.  402.17, 
including the requirement to use ``clear and substantial information,'' 
noting that this language supports the requirement to use the ``best 
scientific and commercial data available.''
    Response: The Services are removing Sec.  402.17 via this final 
rule. The use of the terms ``clear and substantial information'' 
creates confusion with the statutory requirement to use the ``best 
scientific and commercial data available.'' We disagree with the 
comment that retaining the ``clear and substantial'' language in Sec.  
402.17 supports the required use of the ``best scientific and 
commercial data available.'' Please see the discussion of the term 
``clear and substantial'' provided in response to comments on Sec.  
402.17.

Definition of ``Environmental Baseline''

    As proposed, we are revising the third sentence of the definition 
of ``environmental baseline'' by replacing the term ``consequences'' 
with the word ``impacts,'' removing the term ``ongoing,'' and adding 
the term ``Federal'' in two locations. The third sentence now reads: 
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. The changes to the definition of 
``environmental baseline'' in this rule are narrow and serve to clarify 
the intended application and scope of the final sentence that was added 
in 2019. The Services received a wide variety of comments on our 
proposed revisions to the definition of ``environmental baseline,'' 
most of which were focused on the original change in the 2019 rule. 
These comments ranged from support of the 2023 proposed revisions, 
requests to retain the original final sentence of the 2019 definition, 
and requests to remove the entire 2019 definition and revert to the 
definition as it stood prior to the 2019 rule. Commenters in support of 
the proposed revisions to the 2019 definition generally agreed with the 
reasoning of the Services and in some cases requested additional 
guidance on the application of the definition. The comments in 
opposition to the proposed revisions to the 2019 definition generally 
fell under two main themes of comments--both generally focused on the 
final sentence of the 2019 definition. One group focused specifically 
on the Services' revisions to the final sentence of the 2019 definition 
and whether and how the role of Federal agency discretion should be 
considered during a section 7 consultation. The second group focused on 
the proposed language changes to the final sentence, with most 
attention on opposition to the removal of the word ``ongoing.'' With 
regard to the request for additional guidance, the Services intend to 
provide additional guidance and examples in an updated Consultation 
Handbook.
    Comment 1: Several commenters requested the Services revert 
entirely to the definition of ``environmental baseline'' as it stood 
prior to the 2019 regulations by either (1) pointing to other issues as 
described in other comments below or (2) attributing the entire 
definition to an earlier Presidential administration despite much of 
the text of the definition stemming from the pre-2019 regulations.
    Response: The Services decline to return to the pre-2019 
``environmental baseline'' definition for several reasons. First, the 
2019 definition retained much of the language of the pre-2019 
definition, while also making the definition a stand-alone definition 
within the Sec.  402.02 regulations. This regulatory change did not 
change the role of the ``environmental baseline'' in the section 7 
consultation analysis, and the Services also reaffirmed in Sec.  
402.14(g)(4) that the analysis presented in the biological opinion must 
add the ``effects of the action'' to the ``environmental baseline'' and 
``cumulative effects.'' This regulatory revision also removed a 
circular reference that occurred when the ``environmental baseline'' 
definition

[[Page 24275]]

was previously embedded within the ``effects of the action'' 
definition. By creating two separate definitions of ``effects of the 
action'' and ``environmental baseline,'' we are underscoring the 
separate nature of the analyses which are then to be combined into an 
aggregate assessment.
    Second, by clarifying that those portions of a Federal activity or 
facility that are outside the control of the Federal agency to modify 
are included in the ``environmental baseline,'' the Services 
highlighted that the effects of discretionary activities or facilities 
contained in the proposed action would be evaluated within the context 
of (added to) the baseline and ``cumulative effects'' in order to 
determine whether those added effects were or were not ``likely to 
jeopardize'' a species. Third, in the 2019 ``environmental baseline'' 
definition, the Services clarified that the primary purpose of the 
``environmental baseline'' is to present the condition of the listed 
species and critical habitat in the action area as impacted by the 
various factors of the ``environmental baseline.'' Prior 
interpretations of the pre-2019 definition could indicate that the 
baseline was simply a description of the impacts of those factors on 
the action area--missing the important connection to the condition of 
the species and critical habitat that may be further affected by the 
effects of a Federal action. With the 2019 rule, the Services 
highlighted two important elements: (1) That the purpose of the 
baseline was to assess the condition of the species and critical 
habitat and (2) that this condition assessment was taken into 
consideration prior to adding the consequences of the proposed action 
(which in some instances might be the future continued, discretionary 
operations of a facility such as a dam). These two elements provide the 
foundation to which the Services add the effects of the proposed 
action.
    Comment 2: Some commenters reiterated their 2019 comments that the 
2019 revised definition of ``environmental baseline'' hides or ignores 
the significant impacts of past and present activities and facilities, 
some of which may have played a significant role in the present status 
of the species and its critical habitat, asserting that the species is 
thus in ``baseline jeopardy.'' Further, commenters seem to imply that 
only large actions could then likely jeopardize listed species or 
destroy or adversely modify critical habitat.
    Response: The Services disagree and have revised the definition's 
final sentence to clarify those aspects of a Federal action involving 
Federal facilities and activities that are in the ``environmental 
baseline'' and those that will be considered as ``effects of the 
action.'' As required by the regulations, the ``effects of the action'' 
will be added to the ``environmental baseline,'' thus the effects to a 
listed species or critical habitat already impacted by the 
``environmental baseline'' will be considered in full light of the 
condition of that species and critical habitat. In addition to the 
overall status of the species, the relative health and viability of the 
species absent the proposed action in the action area is the starting 
point for the assessment and that condition informs the ability of the 
species to withstand further perturbations to its numbers, 
reproduction, and distribution. As we noted in our responses to 
comments in the 2019 rule and re-affirm here, the statute and 
regulations do not contain any provisions under which a species should 
be found to be already (pre-action) ``in baseline jeopardy,'' such that 
any additional adverse impacts must be found to meet the regulatory 
standards for ``jeopardize the continued existence of'' or 
``destruction or adverse modification.'' As we further noted in 2019, 
and reaffirm here, the Services do not dispute that some listed species 
are more imperiled than others, and that for some very rare or very 
imperiled species, the amount of adverse effects to the species or its 
critical habitat that can occur without triggering a jeopardy or 
``destruction or adverse modification'' determination may be small. See 
84 FR 44976 at 44987, August 27, 2019.
    Comment 3: A few commenters focused on the issue of Federal agency 
discretion and whether it was appropriate to further consider whether a 
Federal agency had discretion over some or all of its proposed action 
once consultation was initiated.
    Response: Consultation under section 7(a)(2) is required when a 
discretionary Federal action may affect a listed species or designated 
critical habitat. As part of that process, it is important that the 
Federal action agency and the Services correctly identify the Federal 
action. Following this step, it is then also important to assess the 
``effects of the action,'' which include the activities caused by (but 
are not part of) the proposed action and the effects of those 
activities. As the Services noted in the 2019 rule, and re-affirm here, 
the courts and the Services have concluded that, in general, the 
effects on listed species and critical habitat attributable to Federal 
agency activities and existing Federal agency facilities are part of 
the ``environmental baseline'' when the action agency has no discretion 
to modify them. For example, with respect to existing Federal 
facilities, such as a dam, courts have recognized that effects from the 
existence of the dam can properly be considered a past and present 
impact included in the ``environmental baseline'' when the Federal 
agency lacks discretion to modify the dam. See, e.g., Friends of River 
v. NMFS, 293 F. Supp. 3d 1151, 1166 (E.D. Cal. 2018). Under these lines 
of cases involving dams, when a Federal agency has authority for 
managing or operating a dam, but lacks discretion to remove or modify 
the physical structure of the dam, any impacts from the physical 
presence of the dam in the river are appropriately placed in the 
``environmental baseline'' and are not considered an ``effect of the 
action'' under consultation. Thus, it is important to note that the 
above analytical process for determining the ``effects of the action'' 
does not include consideration of the discretion of the Federal action 
agency over the activities or facilities of another Federal agency or 
any other third party. To the extent that any effects are caused by the 
proposed Federal action, per the ``but for'' and ``reasonably certain 
to occur'' standards of the ``effects of the action'' definition, they 
would be considered as ``effects of the action'' in the consultation 
analyses. Those effects that are not caused by the Federal action would 
be included in the ``environmental baseline'' or ``cumulative effects'' 
as appropriate.
    Comment 4: Several commenters advocated that the question of 
discretion should also apply to third party actions or the activities 
or facilities that are the subject of a Federal action, such as 
permitting or funding, with some commenters providing site-specific 
examples.
    Response: As we noted above in this preamble and in the proposed 
rule, this determination is made on a case-by-case basis as determined 
by discussions between the Services and the appropriate Federal agency 
on the basis of the information and evidence available at the time. In 
most section 7 consultations, the question of discretion is not a 
factor and, indeed, several examples raised by commenters were on 
large-scale Federal activities such as water operations or land 
management, which make up a relatively small portion of ESA section 7 
consultations. Many of the location-, activity-, or facility-specific 
concerns raised by some commenters are beyond the scope of this rule 
and best handled through site-specific consultations.
    To answer some of the general questions or points of confusion, the 
Services note that the current revisions

[[Page 24276]]

are minor in scope to further clarify the intent of the final sentence 
added to the ``environmental baseline'' definition in 2019 and retained 
in this rule. These revisions do not modify current practice related to 
how past and present non-Federal actions are represented in the summary 
of impacts of the ``environmental baseline'' on the condition of listed 
species and critical habitat. In addition, the revisions do not alter 
current practice related to the analysis of the effects of a proposed 
discretionary Federal action that involves the authorization or funding 
of an action taken by a non-Federal entity such as a private landowner. 
The Services decline to speculate or generalize in a response to public 
comments as to the breadth of scope of agency discretion in all of 
these actions as these are case-specific determinations.
    Comment 5: Some commenters requested additional discussion or 
guidance on how the determination of discretion would proceed. Another 
commenter argued that if discretion continues to be a factor when 
determining the ``environmental baseline'' the Services should retain 
the authority to make the determination on their own.
    Response: As we noted in the proposed rule, we will work closely 
with the Federal action agency to understand the scope of their 
discretion in a particular case to inform those aspects of a Federal 
agency activity or facility that are a part of the ``environmental 
baseline.'' See 88 FR 40753 at 40756, June 22, 203. Typically, Federal 
discretion over an action or facility is defined within all the laws 
and regulations under which the action will be taken. Where questions 
regarding discretion arise during a consultation, the supporting record 
of the consultation should include the documentation upon which the 
separation between discretionary Federal agency action and those non-
discretionary activities or facilities was made. While the Services 
ultimately determine the content and scope of the analyses in our 
biological opinions, generally we would defer to the Federal action 
agency's supported interpretation of their authorities for purposes of 
identifying what non-discretionary Federal facilities and activities 
are included in the ``environmental baseline.'' See id. As a general 
matter, the Services and an action agency can come to a specific 
understanding about the nature of an action agency's discretion and how 
to treat both effects of past and future actions stemming from the 
action agency's decisions.
    Comment 6: One commenter objected to the definitions of 
``environmental baseline'' and ``effects of the action'' because the 
commenter asserts that the effects of the action would include even 
those consequences of the Federal action that have occurred in the past 
and that the action agency and any proponent do not intend to change 
going forward and that the approach does not allow for adaptation due 
to climate change. The commenter also requested that the Services 
define the parameters of actions and effects for ongoing Federal 
project operations such that: (1) the proposed action should be the 
future discretionary actions related to the operation of the existing 
facilities in the existing environment; (2) the effects of the action 
should focus on the manner in which the current status of the species 
and existing condition of its habitat will be affected by the proposed 
future discretionary actions; and (3) the examination of effects of the 
discretionary proposed action does not include the baseline effects of 
or from the original construction of the facilities or the past 
operations and maintenance activities that have occurred.
    Response: The Services decline to define the parameters of the 
``environmental baseline'' and ``effects of the action'' as the 
commenter requests. The Services' definitions of ``effects of the 
action'' and ``environmental baseline'' are crafted to distinguish 
between those impacts that are properly considered as the 
``environmental baseline'' and those consequences of a proposed 
discretionary Federal action that would be considered the ``effects of 
the action.'' Further, the baseline includes the original construction 
of facilities and past operations and maintenance that have occurred. 
However, the proposed future discretionary actions are all of the 
discretionary actions that will occur--even those ongoing discretionary 
actions for which no changes are envisioned. As we noted in the 
proposed rule, ``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 the consequences of the proposed discretionary operations 
of the structure are ``effects of the action'' (88 FR 40753 at 40756, 
June 22, 2023). In other words, those future consequences of 
discretionary operations are properly considered ``effects of the 
action'' even if those similar operations that occurred in the past are 
included in the ``environmental baseline.'' A full assessment of the 
proposed Federal action will ultimately include the ``effects of the 
action'' added to the ``environmental baseline'' and any anticipated 
``cumulative effects.'' Regarding the comment about consideration of 
climate change and the consideration of action effects and the 
``environmental baseline,'' the Services note that climate change is 
considered as appropriate in all ESA section 7 consultations, including 
how past, present, and future conditions are impacted and the resulting 
``effects of the action'' in context with those impacts.
    Comment 7: One commenter requested information regarding future 
planned revisions to the ``environmental baseline'' definition.
    Response: The Services note that the commenter may have misread the 
proposed rule. We do not anticipate further refining the definition of 
``environmental baseline.''
    Comment 8: Several commenters raised the issue of existing 
structures and how they would be considered under these regulations. 
Commenters inquired whether the 2019 regulations and the regulations in 
this rule allow for all existing structures to be included in the 
``environmental baseline.'' Some commenters requested that the Services 
explicitly include that direction in the regulations. In other 
instances, commenters were concerned that the definition allows for 
past harms to the species and habitat to be ignored.
    Response: The Services note that neither the 2019 definition of 
``environmental baseline,'' nor the minor revisions adopted in this 
final rule, change current or past practice and thus do not treat 
existing structures differently than under the prior regulations. The 
final sentence of the definition in the 2019 rule was intended to 
clarify current practice and how the discretionary and non-
discretionary portions of a Federal activity or facility are considered 
in the baseline and ``effects of the action.'' The Services decline to 
state that all existing structures are included in the ``environmental 
baseline''; existing structures may be included in the analysis of the 
``effects of the action'' depending on the Federal action under 
consultation. Whether an existing structure is in the baseline is a 
case-specific determination that includes discretion, prior 
consultations, and temporal considerations.
    Regarding concerns that the current definition allows for past 
impacts to be ignored by residing in the baseline, the Services restate 
that the 2019 baseline definition revision, which primarily made the 
definition a stand-alone

[[Page 24277]]

definition versus an embedded definition within the ``effects of the 
action,'' along with current regulations as amended, clarifies 
longstanding past and current practice in the treatment of those 
impacts that are a part of the ``environmental baseline.'' Importantly, 
by accounting for these past and present impacts in the baseline and 
then adding the effects of the proposed action to the ``environmental 
baseline,'' the Services do not ``let Federal agencies off the hook,'' 
as suggested by some commenters, but instead consider the consequences 
of a Federal action in the context of the past and present impacts to 
listed species and critical habitat in the action area.
    The ESA section 7(a)(2) consultation process applies only when a 
Federal agency proposes to authorize, fund, or carry out a 
discretionary action that may affect a listed species or designated 
critical habitat. At that time, the effects of the proposed Federal 
action are analyzed and added to the impacts of the ``environmental 
baseline,'' which includes the past impacts raised by commenters. 
However, the section 7(a)(2) consultation process is not intended to 
``right the wrongs of the past'' but to ensure that proposed Federal 
actions are ``not likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse modification of 
critical habitat.'' As noted elsewhere, the health and viability of the 
species absent the proposed action is the starting point for the 
assessment and that condition informs the ability of the species to 
withstand further perturbations to its numbers, reproduction, or 
distribution. Thus, past impacts and the resulting condition of the 
listed species and critical habitat are crucial to the overall analysis 
in the section 7 consultation.
    Comment 9: A few commenters requested deletion of the final 
sentence of the ``environmental baseline'' definition given the 
purported confusion it creates or perceived inappropriate narrowing or 
expansion of the scope of the definition. Others suggested different 
revisions from the Services' proposed minor amendments to the language.
    Response: As noted previously, the sentence was added to 
distinguish those cases where an existing Federal facility or activity 
must be considered as part of the ``effects of the action'' versus past 
argued interpretations or confusion that all existing facilities and 
activities were de facto in the baseline. By evaluating the effects of 
discretionary actions against the backdrop of the ``environmental 
baseline'' and ``cumulative effects'' (future non-Federal activities 
that are reasonably certain to occur), the Services are able to assess 
whether the proposed action is ``likely to jeopardize a listed 
species'' or destroy or adversely modify critical habitat. This 
evaluation applies whether the proposed action is a novel action upon 
the landscape or a proposed action that includes another 10 years of 
the same types of consequences that have already led to species 
declines and habitat degradation.
    The Services appreciate the suggested revisions to the final 
sentence of the ``environmental baseline'' definition, which some 
commenters offered in the event that their requests to delete the 
sentence were declined. However, the suggested revisions 
unintentionally resulted in the very concerns raised by the commenters, 
and in one case, would have inappropriately narrowed the scope of the 
``environmental baseline.'' In that case, a commenter suggested not 
including in the ``environmental baseline'' past or completed Federal 
actions that have not undergone and completed section 7 consultation. 
The Services decline to accept this proposed revision, as it could have 
an unintended and significant negative effect on listed species and 
critical habitat. By removing from the ``environmental baseline'' the 
impacts of those past or completed Federal actions (some of which pre-
date the ESA itself and have no discretionary Federal action to trigger 
consultation), the Services would be restricted to looking at an 
incomplete ``environmental baseline,'' and thus an incomplete jeopardy 
analysis.
    Comment 10: The Services have revised the final sentence of the 
``environmental baseline'' definition to replace the term 
``consequences'' with ``impacts.'' We received comments both supporting 
and opposing this revision. While most understood the Services' intent 
to distinguish between those two terms, further explanation of the 
revision and the terms was requested.
    Response: The Services appreciate the support for this revision to 
the final sentence of the ``environmental baseline'' definition. The 
Services understand the concern about the initial confusion with use of 
the term ``consequences'' to refer to those effects of a Federal action 
that were caused by the Federal action. The Services proposed to change 
the word ``consequences'' to ``impacts'' in the final sentence of the 
``environmental baseline'' definition to address this confusion. More 
specifically, the ``environmental baseline'' and the ``effects of the 
action'' are two distinct assessments. Both are ultimately aggregated 
when the ``effects of the action'' are added to the ``environmental 
baseline.'' However, the Services sought to reduce confusion and 
overlap between the two definitions by retaining the use of 
``consequences'' when discussing the effects of the proposed Federal 
action and using ``impacts'' when discussing the ``environmental 
baseline,'' even though we consider ``consequences,'' ``impacts,'' and 
``effects'' to be equivalent terms.
    Comment 11: One commenter requested that the ``environmental 
baseline'' not be limited to Federal projects, but instead include all 
projects that pre-date the ESA and all projects that have previously 
undergone ESA section 7 consultation. Further, the commenter requested 
clarification regarding the treatment of existing non-Federal projects 
(e.g., residential or commercial piers and floats and private 
bulkheads), including the concept of ``useful life'' for both Federal 
and non-Federal actions.
    Response: The Services affirm that the current definition of 
``environmental baseline'' is not limited to just Federal projects, but 
we decline to state that ``all projects'' are automatically included in 
the ``environmental baseline.'' The definition includes (in relevant 
part,) ``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 process'' (50 CFR 402.02). The ``Federal projects'' in 
this excerpt refers to all actions proposed to be authorized, funded, 
or carried out by a Federal agency that have undergone consultation, 
which includes Federal permits for private or commercial actions. 
Because the definition of ``environmental baseline,'' including the 
minor revisions in this rule, does not change current practice, 
existing structures would be treated the same as they are under both 
current and prior practice (i.e., before the 2019 regulation 
revisions). The Services decline to speak to the ``useful life'' of 
structures and how that issue would be treated nationwide as both are 
beyond the scope of this rule and would be addressed on a case-specific 
basis.
    Comment 12: The Services received a wide range of comments on the 
proposed revision to the final sentence of ``environmental baseline'' 
to remove the word ``ongoing,'' and to insert the word ``Federal'' in 
two places. Some commenters opposed the revision

[[Page 24278]]

because they opposed application of the standard to only Federal 
activities or facilities. A few commenters requested that ``ongoing'' 
be retained because they assert that all activities or facilities that 
are ``ongoing'' should be included in the ``environmental baseline.'' 
Some commenters opposed the revision because the result would be either 
that more activities and facilities would be ``hidden'' in the 
``environmental baseline'' and not in the ``effects of the action'' or 
fewer would be in the ``environmental baseline'' and included within 
the ``effects of the action.''
    Response: Both the 2019 regulations and the regulations in this 
rule clarify existing practice related to the ``environmental 
baseline.'' While we cannot comment on the fact or site-specific 
circumstances that some commenters raise, every ESA section 7(a)(2) 
consultation is unique and based on what has been proposed by a Federal 
agency to authorize, fund, or carry out and the nature of the Federal 
agency's discretion and authority. Some of the examples raised may have 
included consultations that appropriately identified the Federal action 
and ``effects of the action'' based upon specific facts, applicable 
laws or other authorities, and prior consultation history. Thus, the 
conclusions in those examples do not necessarily apply in other 
instances, and it is incumbent on the Services and the Federal action 
agency to carefully describe and discuss what the Federal action may be 
in any particular case.
    Several commenters were focused on the ``ongoing'' nature of an 
activity for determining whether that activity is evaluated in the 
environmental baseline. The Services proposed to remove the term 
``ongoing'' and insert the term ``Federal'' because our experience 
implementing the 2019 rule echoes this same unintended focus on 
``ongoing'' and not on the relevant portions of the sentence (i.e., the 
scope of the Federal agency's discretion). As explained in our proposed 
rulemaking, we found that removal of the term ``ongoing'' from the 
relevant portion of the regulatory definition of ``environmental 
baseline'' would, instead, shift the focus to the appropriate factor 
for determining whether an activity is part of the ``environmental 
baseline''--whether or not the action agency has discretion to modify 
that activity. The Services decline to reinstate the term ``ongoing'' 
or remove the term ``Federal'' to avoid this improper focus in the 
future.
    The Services also re-affirm that the pre-2019 definition, the 2019 
definition, and the minor revisions in this rule maintain the same 
standards for the Federal, State, private, and other human activities 
that are considered in the ``environmental baseline'' and the scope of 
the effects of proposed Federal actions that will be analyzed as 
``effects of the action.'' Existing non-Federal structures and 
activities occurring within an ``action area'' are a part of the 
``environmental baseline,'' unless a Federal agency proposes to 
authorize, fund, or carry out an action related to the structure or 
activity. At that time, the non-Federal structure or activity may be 
subject to an ESA consultation if the proposed Federal action ``may 
affect'' listed species or designated critical habitat. Nothing in the 
revised ``environmental baseline'' definition changes this requirement 
of the statute. Despite the assertion of some commenters, if a Federal 
agency is proposing to authorize, fund, or carry out a repair or 
modification to a non-Federal structure, the consultation must evaluate 
the effects of the action, including all consequences to listed species 
or critical habitat caused by the proposed action.
    Although commenters cite an example from the 1998 Consultation 
Handbook, that example fails to account for the wide variety of Federal 
actions that may occur related to an existing Federal facility, and 
thus one approach does not fit all situations. The Services again 
decline to universally state that all ``ongoing'' facilities or 
activities are in the ``environmental baseline.'' First, the term 
``ongoing'' itself creates confusion when a longstanding operation that 
is within the discretionary authority of a Federal agency is being 
proposed for renewal. The prior operations are within the 
``environmental baseline,'' but the future operations, which are part 
of the discretionary proposed action, are properly considered as 
effects of the action. In addition, the Services and Federal action 
agencies should work closely to examine and understand the consequences 
of a proposed Federal action. In some instances, the nature of the 
action may indeed result in a similar finding as the turbine example 
cited from the 1998 Consultation Handbook (See 1998 ESA Consultation 
Handbook, Chapter 4, Interrelated and Interdependent Actions p. 4-27). 
In other instances, the nature of the action may encompass more of the 
operations or even structure of the facility itself. It is beyond the 
scope of this rule to provide examples that cover all such 
possibilities. Case-specific circumstances must be considered and 
should be done in collaboration between the Services and the Federal 
action agency as discussed in the 2019 rule and the 2023 proposed rule.
    The Services also clarify that the 2019 regulatory amendments, and 
the minor revisions in this final rule, do not remove existing 
structures and operations from the baseline as some commenters 
suggested. Similarly, the 2019 and 2023 revisions do not move most 
structures and operations to the proposed action if they are not either 
the proposed action itself or activities caused by the proposed action. 
The full definition of the ``environmental baseline'' includes those 
past impacts or Federal, State, and private actions in the action area. 
The final sentence is intended to address questions that have arisen 
regarding the consideration of the non-discretionary aspects of Federal 
facilities or activities. In general, Federal permitting and 
authorization of existing non-Federal facilities and activities is a 
discretionary action and requires section 7(a)(2) consultation if the 
proposed action may affect listed species or critical habitat. The past 
impacts of non-Federal facilities or non-Federal activities would be 
included in the ``environmental baseline'' whereas future consequences 
of the proposed Federal authorization action for that facility or 
activity would be the subject of the consultation and ``effects of the 
action'' analysis. In some instances, an effects analysis may need to 
assess the future and extended life of a structure, yet the past 
existence and impacts of the structure are included in the 
``environmental baseline.''
    The 2019 and current revisions to the ``environmental baseline'' 
definition do not prescribe particular assumptions that would be 
applied to all repair, maintenance, or modification activities proposed 
for authorization, funding, or implementation by a Federal agency. The 
consequences of such activities, including whether a proposed action 
extends the life of a structure or operation, would be reviewed per the 
standards of the ``effects of the action'' definition and may differ 
significantly from case to case. Further, what was or was not 
considered in prior consultations, if any, may also vary. The 
definition also does not prescribe how the effects of structures past 
their useful life would be analyzed as part of the ``environmental 
baseline.'' If those structures are not the subject of the consultation 
and are causing impacts to the condition of listed species and critical 
habitat in the action area, they would be included in the baseline, but 
it is beyond the scope of this rule to further describe or prescribe 
how that analysis would be done.

[[Page 24279]]

    Comment 13: The Services received several comments specific to 
consultations on projects in the Salish Sea of Washington, an existing 
programmatic consultation, a NMFS 2018 internal guidance document, and 
the Puget Sound Nearshore Habitat Conservation Calculator.
    Response: Generally, these comments are outside the scope of this 
rulemaking action, and given that the regulations do not alter current 
practice, the regulations are not expected to alter the consultations 
and tools raised by the commenters. Regarding the National Marine 
Fisheries Service, West Coast Region, Internal Guidance on Assessing 
the Effects of Structures in Endangered Species Act Section 7 
Consultation (April 18, 2018), NMFS withdrew this guidance after 
issuance of the January 2022, Department of the Army (Civil Works) and 
the National Oceanic and Atmospheric Administration Memorandum. The 
2022 Memorandum, which is based on existing legal requirements, is 
national in scope and clarifies potential differences between the U.S. 
Army Corps of Engineers Civil Works projects and Regulatory Program 
projects based on agency discretion. The 2022 memorandum is fully 
consistent with the Services' section 7 regulations, including the 
definitions of ``effects of the action'' and ``environmental baseline'' 
as revised in this final rule. The memorandum does not impose any new 
or additional requirements on action agencies, applicants, or NMFS, and 
does not alter the existing requirements relative to section 7 
consultations. Commenters are correct that future Federal actions 
related to Federal or non-Federal facilities may trigger an ESA 
consultation on the proposed Federal action, but it is beyond the scope 
of this rule to speculate whether that consultation would require 
mitigation under existing programmatics or RPM offsetting measures, 
costly or otherwise.
    Comment 14: One commenter questioned whether the modification to 
the final sentence of the ``environmental baseline'' definition 
forecloses the consideration of what used to be considered 
``interrelated'' and ``interdependent'' actions as ``effects of the 
action.''
    Response: The Services appreciate the commenter's perspective on 
the possible interpretation of the revised sentence. If the activities 
of other Federal agencies would be caused by the proposed Federal 
action that is subject to consultation, then they would properly be 
considered as ``effects of the action'' and those Federal agencies 
should be action agencies in the section 7(a)(2) consultation. Further, 
in situations where there are multiple Federal agencies taking actions 
(authorizing and funding, for example) on the same non-Federal action, 
an efficient consultation process could include all of these agencies 
(even if one is designated as the lead agency). Our interpretation and 
application of the ``environmental baseline'' and ``effects of the 
action'' definitions would not be a change in practice. In most cases, 
other Federal agency activities or facilities that are not caused by 
the proposed Federal action would be included within the 
``environmental baseline'' (or subject to their own ESA consultation as 
needed). The Services decline to further revise the final sentence but 
note the commenter's concern for potential inclusion in further 
guidance.
    Comment 15: One commenter was concerned that the addition of 
``Federal'' in the final sentence of the ``environmental baseline'' 
definition restricted the ``effects of the action'' to only the 
consequences where the Federal action agency has the discretion to 
modify the activity or facility.
    Response: Commenters misconstrue the effect of this revision. The 
Services are clarifying that the scope of application in the final 
sentence of ``environmental baseline'' is to Federal action agency (or 
agencies) activities and facilities. The inclusion of the word 
``Federal'' does not alter the scope of the definition of ``effects of 
the action.'' As discussed in the ``effects of the action'' section 
above, if an activity or consequence meets the two-part test for an 
effect, then it is considered an ``effect of the action'' regardless of 
whether that activity or consequence is within the control of the 
Federal agency.
    Comment 16: One commenter was concerned that the revision to the 
final sentence of ``environmental baseline'' implies that facilities 
such as irrigation, diking, and drainage infrastructure are not within 
the ``environmental baseline,'' and any future Federal permitting, even 
for maintenance and repair of existing infrastructure, would require 
costly mitigation.
    Response: Existing Federal and non-Federal facilities and their 
operations are a part of the ``environmental baseline,' as described in 
the definition (in relevant part): ``The environmental baseline 
includes the past and present impacts of all Federal, State, or private 
actions and other human activities in the action area'' (50 CFR 
402.02). Commenters are correct that future Federal actions related to 
Federal or non-Federal facilities may require consultation under 
section 7(a)(2) of the ESA on the proposed Federal action, including a 
full analysis of the consequences of the Federal actions and activities 
caused by the Federal action. If consultation is required under section 
7(a)(2) of the Act, it would be subject to the revisions of the 
implementing regulations at 50 CFR part 402 by this final rule, 
including revisions to the scope of RPMs. However, it is beyond the 
scope of this rule to speculate whether that consultation would require 
RPMs with offsetting measures that are costly or otherwise.
    Comment 17: One commenter suggested a revision to the final 
sentence for ``environmental baseline.'' The commenter recommended 
changing ``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.'' to ``The ongoing impacts to listed species or 
designated critical habitat from existing facilities or activities that 
are not caused by the proposed action or that are not within the 
Federal action agency's discretion to modify are part of the 
environmental baseline.''
    Response: The Services decline to accept the suggested edits to the 
third sentence of the ``environmental baseline'' definition. As we 
described in the proposed rule, the original sentence inadvertently 
caused confusion and a focus on the term ``ongoing'' instead of the 
Federal agency's discretion to modify their own facilities and 
activities. However, the commenter's suggested language would 
inadvertently include in the ``environmental baseline'' those 
facilities and activities that are caused by the proposed action if the 
Federal agency has no discretion to modify them. Further, the language 
suggested by the commenter could be read also to include all or 
portions of the very activities or facilities that are the subject of 
the proposed Federal action of funding or permitting. Both results 
would improperly limit the scope of the jeopardy or adverse 
modification analysis. The Services' definition clarifies that the past 
and present impacts of existing activities and facilities entirely 
unrelated to the Federal action in the action area would be in the 
``environmental baseline'' whether they are Federal, State, private, or 
other human activities.

Section 402.16--Reinitiation of Consultation

    As proposed, we are revising the text at Sec.  402.16(a) by 
deleting the words ``or by the Service'' to clarify that the 
responsibility and obligation to reinitiate consultation lies with the

[[Page 24280]]

Federal agency that retains discretionary involvement or control over 
its action. The text at Sec.  402.16(a) now reads: 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 . . . This revision will not 
prevent the Services from notifying the Federal agency if we conclude 
that circumstances appear to warrant a reinitiation of consultation.
    Comment 1: Multiple commenters opposed the deletion of the phrase 
``or by the Service,'' multiple other commenters supported the removal 
of ``or by the Service,'' and others noted that the Services are able 
to provide technical assistance to Federal action agencies when 
reinitiation is appropriate and requested that the regulations clarify 
the roles of the Services and action agencies in the ``Reinitiation of 
Consultation'' section (50 CFR 402.16(a)).
    Response: We are removing the language ``or by the Service'' 
because the sentence as written creates confusion as to the scope of 
the authorities and roles of the Services relative to the Federal 
action agency. As explained in our 2019 rule and 2023 proposed rule, 
only the Federal action agency has the authority and responsibility to 
initiate or reinitiate consultation when warranted. The Services do not 
have the power to order other agencies to initiate or reinitiate 
consultation (Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 
1987); Defs. of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 
2005); 51 FR 19949, June 3, 1986); instead, we are able to recommend 
that the Federal action agency reinitiate consultation. Because the act 
of reinitiating consultation is solely the responsibility of the 
Federal action agency, removing ``or by the Service'' in this portion 
of the regulations clarifies that responsibility. As noted in the 2023 
proposed rule, the Services may still notify the Federal agency if 
circumstances warrant a reinitiation of consultation. The Services 
conclude that no additional regulatory language is needed to address 
this ability.
    Comment 2: Two commenters suggested that it would be appropriate to 
delete Sec.  402.16(b): One believes that the regulations in that 
paragraph exceed the Services' authority to choose when to reinitiate, 
and the other believes that identifying only these exceptions is 
arbitrary. Both stated that Sec.  402.16(b) is ``bad conservation 
policy.''
    Response: Section 402.16(b) was added in the 2019 rule to address 
issues arising under Cottonwood Environmental Law Center v. U.S. Forest 
Service, 789 F.3d 1075 (9th Cir. 2015), and to comport with the 
Wildfire Suppression Funding and Forest Management Activities Act, H.R. 
1625, Division O, which was included in the Omnibus Appropriations bill 
for fiscal year 2018. The 2018 statute exempted land management plans 
prepared pursuant to the Federal Land Policy Management Act (FLPMA), 43 
U.S.C. 1701 et seq., and the National Forest Management Act (NFMA), 16 
U.S.C. 1600 et seq., from reinitiation of consultation when a new 
species is listed or new critical habitat is designated provided that 
any authorized actions under the plan that may affect listed species or 
critical habitat are subject to their own site-specific consultations. 
We respectfully disagree that Sec.  402.16(b) is ``bad conservation 
policy'' because the regulations in that paragraph allow the Services 
to focus our limited resources on those site-specific actions that may 
cause effects to listed species and designated critical habitat. As we 
noted in the 2019 rule, the Bureau of Land Management and the U.S. 
Forest Service (USFS) are required to periodically update their land 
management plans, at which time they would consult on any newly listed 
species or critical habitat.
    Comment 3: One commenter recommended that reinitiation of 
consultation because of a new species listing or critical habitat 
designation be limited to that species or critical habitat, unless one 
of the other conditions for triggering reinitiation has been met.
    Response: Informal or formal consultations that are reinitiated on 
the basis that the action may affect newly listed species or newly 
designated critical habitat are, in fact, limited to evaluating the 
effects of the action on that species or critical habitat, unless 
another regulatory condition requiring reinitiation applies.
    Comment 4: The Services received several comments urging us to make 
changes to the 2019 regulatory revision clarifying that the duty to 
reinitiate consultation does not apply to certain existing programmatic 
land management plans prepared pursuant to the FLPMA or the NFMA when a 
new species is listed or new critical habitat is designated that may be 
affected by the plan. Some of the comments maintained that the revision 
exceeded our authority under the Act and did not support the 
conservation purposes of the Act.
    Response: The Services decline to make changes to the 2019 
regulatory revision exempting certain land management plans from the 
requirement to reinitiate consultation. The 2019 regulatory revision 
essentially incorporates the exemption (and the statutory conditions 
for applying that exemption) enacted by Congress in the 2018 Wildfire 
Suppression Funding and Forest Management Activities Act as part of the 
2018 Omnibus Appropriations Act. Although the 2019 regulatory revision 
extended the exemption to land management plans issued under FLPMA, 
which were not addressed in the 2018 Omnibus Appropriations Act, the 
Services disagree that we lack authority to exempt these plans from the 
reinitiation requirement established by our regulations, not by 
statute. Because our regulations clarify that the exemption applies 
only if any action taken under a FLPMA or NFMA land management plan 
that may affect a newly listed species or newly designated critical 
habitat can be evaluated in a separate section 7 consultation, we find 
that this regulatory provision is consistent with ESA section 7 and the 
overarching conservation purposes of the ESA.

Section 402.17--Other Provisions

    As proposed, in this final rule, we are removing Sec.  402.17 in 
its entirety. This 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.'' 
The previously articulated basis for Sec.  402.17 will be addressed in 
an updated Consultation Handbook.
    Comment 1: Several commenters disagreed with removal of Sec.  
402.17. They supported retaining the requirement that for an activity 
or consequence to be considered reasonably certain to occur it ``must 
be based on clear and substantial information.'' The commenters 
asserted that removing Sec.  402.17 would lead to less clarity and more 
confusion.
    Response: In the proposed rule, the Services articulated several 
reasons why removing Sec.  402.17 is preferable, including unnecessary 
confusion and regulatory complexity and potential inconsistency with 
the statutory requirement to use ``the best scientific and commercial 
data available.''. These reasons adequately explain why removal of 
Sec.  402.17 is warranted. First, removing Sec.  402.17 simplifies the 
structural complexity of the ``effects of the action'' definition. 
Currently, the term ``effects of action'' is defined in Sec.  402.02, 
but that definition cross-references Sec.  402.17. Removing Sec.  
402.17 would make the ``effects of the action'' definition self-
contained within

[[Page 24281]]

Sec.  402.02 without requiring reference to a separate regulatory 
provision.
    Second, section 7(a)(2) of the Act requires both the Federal action 
agencies and the Services to use ``the best scientific and commercial 
data available.'' This requirement applies to all aspects of section 
7(a)(2), including determining what activities or consequences are 
considered reasonably certain to occur when analyzing the ``effects of 
the action'' and any ``cumulative effects.'' The requirement that such 
analysis must also be based on ``clear and substantial information'' 
creates an additional standard that could be read to limit what ``best 
scientific and commercial data available'' the Services may consider. 
Rather than focusing on the ``best available'' data, the ``clear and 
substantial information'' requirement would appear to circumscribe that 
data to only that which meets those heightened requirements.
    Third, when read in combination with the preamble discussion in the 
2019 final rule that emphasized a need for a ``degree of certitude'' in 
determining effects of the action that are reasonably certain to occur, 
Sec.  402.17 could be construed as narrowing the scope of what 
constitutes the ``best available scientific and commercial data.'' In 
other words, in light of the ``degree of certitude'' discussion in the 
preamble of the 2019 rule, Sec.  402.17's ``clear and substantial 
information'' standard could be read to suggest that even if particular 
data were considered the best available, they potentially should not be 
relied upon if they lacked a heightened degree of certitude. The best 
available data will not always be free of uncertainty and often may be 
qualitative in nature, and, under the requirements of section 7(a)(2), 
are to be used by the Services in fulfilling their consultative role 
under the Act. For these reasons and also as discussed further below, 
we are removing 50 CFR 402.17 from the section 7 regulations.
    Comment 2: Some commenters supported removing Sec.  402.17, 
particularly the ``clear and substantial information'' standard, 
asserting that it conflicts with the statute, including the ``best 
scientific and commercial data available'' requirement, and 
inappropriately limits the effects analysis.
    Response: The Services agree that removing Sec.  402.17 is 
appropriate for the reasons discussed in this final rule.
    Comment 3: Some commenters asserted the Services had not adequately 
explained how Sec.  402.17 creates the potential for confusion.
    Response: The Services' response above and in the preamble of our 
proposed rule (88 FR 40753, June 22, 2023) explains why Sec.  402.17 
has the potential to create confusion. As explained, Sec.  402.17 
creates potentially competing requirements between its ``clear and 
substantial information'' standard and the statutory requirement to use 
the best scientific and commercial data available. Such competing 
mandates necessarily contribute to confusion on the part of agencies 
and applicants who are forced to reconcile them in carrying out their 
obligations under section 7(a)(2). Additionally, as discussed more 
fully below, the factors identified in Sec.  402.17, particularly Sec.  
402.17(b), are circular in nature, making them potentially unhelpful or 
confusing as to when an activity is or is not reasonably certain to 
occur.
    Comment 4: As mentioned above, several commenters asserted that the 
recent MLA decision, weighs against the Services removing Sec.  402.17 
from the section 7 regulations. They contend that the decision supports 
the following: the notion that effects must be ``likely'' to occur, the 
requirement of ``clear and substantial information,'' and limitations 
on engaging in speculation. They also asserted that the Services should 
look to the MLA decision for direction in any guidance documents the 
Services develop.
    Response: For the reasons discussed above, the MLA decision does 
not undermine the Services' decision to remove Sec.  402.17. To the 
extent the MLA decision raises questions about how the Services resolve 
uncertainty, the Services reiterate that we will continue to follow 
accepted scientific methods and evaluate all lines of best available 
evidence to arrive at principled scientific determinations, including 
as to what consequences are or are not reasonably certain to occur. 
This is our longstanding approach to performing the section 7(a)(2) 
inquiry, and the MLA court did not reject this approach. The narrow 
adverse holding of MLA did not speak to the Services' ability to remove 
Sec.  402.17 from the section 7 regulations for all the reasons stated 
in the preamble. As with other court decisions, the Services will give 
appropriate consideration to MLA as applicable when developing future 
guidance.
    Comment 5: Some commenters asserted that removing Sec.  402.17 and 
the requirement of ``clear and substantial information'' is 
inconsistent with the Act and the best available science standard and 
would be problematic for consultations that involve assumptions and 
projections in areas of scientific uncertainty.
    Response: As stated above, removing Sec.  402.17 and the ``clear 
and substantial information'' standard does not change the fundamental 
``reasonably certain to occur'' test, which will continue to be applied 
by the Services in our analyses, including those involving scientific 
uncertainty. Moreover, the 2019 rule specifically stated that the 
regulatory changes made in that rule were clarifications and did not 
``lower or raise the bar on section 7 consultations,'' and did not 
``alter what is required or analyzed during a consultation.'' 84 FR 
44976 at 45015, August 27, 2019. While that was the intent of the 2019 
rule, for the reasons discussed above, there are concerns that the 
``clear and substantial information'' standard itself can cause 
confusion and could be read to be in tension with the Act's ``best 
available scientific and commercial data'' requirement. For all these 
reasons and as discussed throughout, removing Sec.  402.17 is 
consistent with the Act.
    Comment 6: Some commenters urged the Services to retain the factors 
set forth in Sec.  402.17(a) and (b), rather than address them in a 
future guidance document.
    Response: As stated in the proposed rule, the Sec.  402.17(a) and 
(b) factors are a non-exclusive list of relevant considerations for 
determining whether an activity (Sec.  402.17(a)) or a consequence 
(Sec.  402.17(b)) is reasonably certain to occur. Because they are non-
exclusive, general in nature, and read more as suggestions than 
regulatory requirements, they are more appropriately addressed in an 
update to the Services' Consultation Handbook than in regulatory text. 
A discussion in the updated Consultation Handbook will lend itself to a 
more appropriate treatment of these factors and their relevance to 
identifying activities and consequences that are reasonably certain to 
occur. Moreover, factors similar to those in Sec.  402.17(a) are 
already set forth in the Services' original 1998 Consultation Handbook. 
See Services' 1998 Consultation Handbook at 4-32. And while the Sec.  
402.17(b) factors (remoteness in time, remoteness in geographic 
location, and lengthy causal chain) were not specifically discussed in 
the 1998 Consultation Handbook, the factors themselves are tautological 
or circular in nature, i.e., each falls back on the concept of what is 
not reasonably certain to occur to satisfy the factor (e.g., a 
consequence is too remote in time if it is not reasonably certain to 
occur). At the same time, this portion of Sec.  402.17 has the 
potential to

[[Page 24282]]

create the misperception that the presence of any of the factors alone 
indicate that a consequence is not reasonably certain to occur, but the 
fact that a consequence may be remote in time, for instance, is not 
dispositive of whether it is not reasonably certain to occur. These 
potential problems with Sec.  402.17(b) raise the question of whether 
the factors, in fact, provide much in the way of effective guidance. A 
more detailed discussion in the updated Consultation Handbook can 
remedy this potential deficiency.
    An additional reason to remove the identified factors is how each 
set of factors is introduced in the regulatory text. For both Sec.  
402.17(a) and (b), they are described as factors to evaluate whether 
``activities'' or ``consequences'' are ``caused by the proposed 
action,'' which is governed by the two-part test of ``but for'' 
causation and reasonably certain to occur. Yet the factors themselves 
speak only to what may be considered reasonably certain and ignore what 
may be relevant for evaluating the ``but for'' prong of the test. While 
this potential shortcoming might be addressed through further 
regulatory revision, we believe removal of Sec.  402.17 is the 
preferred solution for all the reasons stated.
    Comment 7: Some commenters supported removing the factors set forth 
in Sec.  402.17. They asserted that the factors like those found in 
Sec.  402.17(b) are one-sided and lean only toward negating 
consideration of certain effects as opposed to also including factors 
that weigh in favor of considering effects. They assert that such an 
approach risks inappropriately limiting the effects analysis and 
species protections, which they consider at odds with the purpose of 
the ESA. They also question the utility of guidance that might repeat 
the identified deficiencies.
    Response: The Services agree that the removal of Sec.  402.17 is 
advisable for the reasons stated elsewhere in this final rule. We will 
take into consideration the commenter's suggestion to potentially 
broaden the scope of any guidance on factors relevant to what 
activities or consequences are considered ``reasonably certain to 
occur'' in developing our updated Consultation Handbook.
    Comment 8: Some commenters recommended adding the factors listed in 
Sec.  402.17(b) as part of the definition of ``effects of the action.''
    Response: The Services respectfully decline this suggestion. For 
the reasons discussed above, we are removing the non-exclusive list of 
factors in Sec.  402.17(b) from the regulations. Additionally, 
including these non-exclusive, general factors in the definition of 
``effects of the action'' would add unnecessary complexity to the 
definition.
    Comment 9: Some commenters asserted that removing Sec.  402.17 will 
lead to delays, increased costs for stakeholders, less efficient 
consultation processes, increased regulatory burdens, and inconsistent 
outcomes. They also assert that, without Sec.  402.17, the Services 
would be free to presume consequences regardless of their likelihood or 
``degree of certitude.''
    Response: We respectfully disagree with the commenters. For the 
various reasons discussed in this preamble, the Services conclude that 
removing Sec.  402.17 overall will be more consistent with the Act, 
resolve potential confusion, and remove regulatory text that is better 
addressed in an updated Consultation Handbook. As referenced in the 
preamble of the 2019 rule, the 2019 regulatory changes to the section 7 
regulations did not lower or raise the bar on section 7 consultations 
or alter the scope of analysis. The fundamental test of ``reasonably 
certain to occur'' remains, which places limitations on the scope of 
our causation analysis and avoids speculation. To the extent that some 
commenters are suggesting that one may read Sec.  402.17 to heighten 
the requirements for determining what activities or consequences are 
reasonably certain to occur, such heightened requirements (as discussed 
above) may well be inconsistent with the statutory mandate to use the 
``best scientific and commercial data available.'' In particular, the 
agencies have a fundamental duty to ``insure that any action 
authorized, funded, or carried out by [an action] agency is not likely 
to jeopardize the continued existence of a list species.'' 16 U.S.C. 
1536(a)(2). Unduly limiting the scope of ``the best scientific and 
commercial data available'' that an agency may consider could undermine 
the agency's duty to ``insure''--i.e., ``to make certain,'' Home 
Builders, 551 U.S. at 667--that an action is not likely to jeopardize. 
Because the fundamental causation test remains, removal of the ``clear 
and substantial information'' standard will reduce, not increase, 
confusion. And, we expect the non-exclusive factors set forth in Sec.  
402.17 will be addressed and expanded upon in the updated Consultation 
Handbook. As a result, we do not anticipate removal of Sec.  402.17 
will lead to delays, increased costs or regulatory burdens for 
stakeholders, or less consistent outcomes.
    Comment 10: Some commenters expressed a preference for the factors 
identified in Sec.  402.17(a) and (b) to be addressed in rulemaking 
rather than guidance. These commenters claimed that rulemaking affords 
the public with opportunities to comment and requires additional 
process to revise the regulatory text compared to non-binding guidance. 
One commenter also asserted the Services should not remove Sec.  402.17 
until after public comment on any updated draft Consultation Handbook. 
Commenters also expressed a concern about how long it will take the 
Services to issue any updated guidance.
    Response: The Services intend to provide an opportunity for public 
comment on any updated Consultation Handbook, which we anticipate 
making available after this final rule. Therefore, the public will have 
an opportunity to review and comment on guidance developed based on the 
factors identified in Sec.  402.17. While any future Consultation 
Handbook is not expected to be binding, the non-exclusive, general 
nature of the factors found in Sec.  402.17 make their regulatory 
effect to be of, at most, limited import. As for timing, the reasons 
discussed above explain why it is appropriate to remove Sec.  402.17 
now, including the factors of Sec.  402.17(a) and (b). The Services 
therefore respectfully decline the request to delay their removal.
    Comment 11: One commenter opposed the 2019 rule's expansion of the 
``reasonably certain to occur'' standard beyond indirect effects and 
relatedly urged the Services not to adopt guidance perpetuating the 
expansion. If guidance is necessary on an analytical framework for how 
to reasonably predict future effects, the commenter urged the Services 
to adopt an approach similar to the Department of the Interior 
Solicitor's M-Opinion (Department of the Interior, Office of the 
Solicitor, Opinion M-37021 (Jan. 16, 2009)) regarding the term 
``foreseeable future'' in the context of species listing.
    Response: For the reasons discussed in the 2019 rule and elsewhere 
in this rule, we choose to keep our two-part causation test including 
``reasonably certain to occur'' (which collapsed the concepts of direct 
effects, indirect effects, and interrelated and interdependent 
activities). Because we are keeping our two-part test, we expect to 
provide guidance in an updated Consultation Handbook on appropriate 
considerations. We will consider all credible sources, including the 
2009 Solicitor M-Opinion, as we prepare helpful guidance on what is 
``reasonably certain to occur.''

[[Page 24283]]

Sections 402.02 and 402.14--Scope of RPMs

    As proposed, we are revising the definition of ``reasonable and 
prudent measures'' to adhere more closely to the statute by replacing 
the term ``believes'' with ``considers'' and replacing the clause 
``impacts, i.e., amount or extent, of incidental take'' with ``impact 
of the incidental take on the species.'' The definition now reads: 
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. We are also revising Sec.  
402.14(i)(1)(i) and (ii) to reflect the above change. To recognize that 
RPMs are not limited solely to reducing incidental take and may occur 
outside of the action area, we are also adding the following language 
to the end of Sec.  402.14(i)(2): ``and may include measures 
implemented inside or outside of the action area that avoid, reduce, or 
offset the impact of incidental take.'' Further, we are adding to Sec.  
402.14 a new paragraph at (i)(3) to clarify that offsets within or 
outside the action area can be required to minimize the impact of 
incidental taking on the species: 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.
    Comments were received on a variety of aspects of the above changes 
that expand the scope of RPMs but can be grouped under the following 
two general categories: authority and application.

Authority

    Comment 1: Some commenters contended that the Services' proposal 
allowing for the use of offsets as RPMs conflicts with the plain 
language of ESA section 7(b)(4)(C)(ii). Specifically, these commenters 
asserted that ESA section 7(b)(4)(C)(ii) requires RPMs to ``minimize'' 
the impacts of incidental take rather than to compensate for or 
eliminate those impacts through offsetting measures.
    Response: The Services disagree that the RPM regulatory revision 
conflicts with the plain language of ESA section 7(b)(4)(C)(ii), and, 
in fact, assert the opposite. As discussed more fully below, the plain 
language of section 7(b)(4)(C)(ii) supports the use of offsets as RPMs. 
The relevant language plainly states that RPMs are to include measures 
that minimize the impacts of incidental take, not incidental take 
itself. Like measures that avoid or reduce incidental take, offsetting 
measures also minimize the impacts of incidental take on the species.
    Regarding these commenters' specific assertion that ESA section 
7(b)(4)(C)(ii) used the term ``minimize'' rather than ``eliminate'' or 
``compensate for,'' these commenters appear to view the use of 
``minimize'' as reflecting congressional intent to preclude the 
Services from using offsets that minimize the impact of incidental 
taking to the degree that it is eliminated or compensated for. We note, 
however, that the ordinary meaning of ``minimize'' found in dictionary 
definitions does not refer to any specific quantum that may be reduced. 
Some definitions, in fact, indicate that the term means ``[t]o reduce 
(esp. something unwanted or unpleasant) to the smallest possible 
amount, extent, or degree.'' Minimize, Oxford English Dictionary, 
https://www.oed.com/search/dictionary/?scope=Entries&q=minimize (last 
accessed on October 26, 2023). The ESA, similarly, does not specify the 
extent to which impacts are to be minimized. Accordingly, offsets may 
minimize the impacts of incidental take on the species through measures 
that counterbalance the loss of individuals taken as a result of the 
action subject to consultation (e.g., through restoration of habitat 
anticipated to result in the replacement of the individuals that were 
taken). Such offsetting measures must be proportional to the impact of 
incidental take that cannot be avoided or reduced, with the amount or 
extent of the taking (as described in the incidental take statement) 
representing the upper limit on the scale of any offsetting measures.
    Comment 2: Many commenters maintained that Congress intended 
offsetting measures to address impacts from incidental take under ESA 
section 10, not ESA section 7. ESA section 10(a)(2)(B)(ii) authorizes 
the Services to issue incidental take permits if, among other things, 
applicants' conservation plans ``minimize and mitigate'' impacts from 
incidental take. Because ESA section 7(b)(4)(C)(ii), unlike ESA section 
10(a)(2)(B)(ii), specifies that RPMs are to ``minimize'' impacts of 
incidental take, these commenters asserted that Congress did not intend 
for RPMs to also ``mitigate'' impacts through offsetting measures. 
These commenters further argued that the proposal allowing for the use 
of offsets under ESA section 7 impermissibly conflated ``minimize'' 
with ``mitigate.''
    Response: The Services disagree that the statutory criteria for 
issuing incidental take permits under ESA section 10 indicates that 
Congress intended to require mitigation from private applicants in the 
context of section 10, but specifically limited the use of such 
measures when addressing the same impacts in the context of section 7. 
The plain language of the ESA indicates that Congress considered the 
terms ``minimize'' and ``mitigate'' to have overlapping meaning when 
those terms were added as part of the 1982 ESA amendments.
    In 1982, when Congress added the provisions for reasonable and 
prudent measures and ESA section 10 incidental take permits, Congress 
also revised the process by which a Federal agency, State, or applicant 
may seek an exemption from the requirement in ESA Section 7(a)(2) to 
ensure against the likelihood of jeopardy or adverse modification. See 
H.R. Rep. No. 97-56, at 28 (May 17, 1982) and S. Rep. No. 97-418, at 19 
(May 26, 1982). Included in the amendments adopted by Congress were 
additional criteria to be considered by the Endangered Species 
Committee in granting an exemption. See 16 U.S.C. 1536(h)(1) (ESA 
section 7(h)(1)). Specifically, these amendments provided that the 
Endangered Species Committee can issue an exemption if, among other 
things, it ``establishes such reasonable mitigation and enhancement 
measures, including, but not limited to, live propagation, 
transplantation, and habitat acquisition and improvement, as are 
necessary and appropriate to minimize the adverse effects of the agency 
action.'' 16 U.S.C. 1536(h)(1)(B) (ESA section 7(h)(1)) (emphasis 
added). Thus, in the same section of the Act as the RPMs provision, 
Congress specifically described mitigation measures that offset adverse 
effects as measures that minimize such effects. This provision provides 
strong support that Congress considered the terms ``minimize'' and 
``mitigate'' to have overlapping meaning and that mitigative measures 
also encompass measures that minimize the impacts of incidental take 
and vice versa.
    This reading of the 1982 ESA amendments is also supported by the 
ordinary meaning of the terms ``minimize'' and ``mitigate,'' which have 
a substantial degree of overlap. For example, as mentioned above, the 
Oxford English Dictionary defines the term ``minimize'' as ``[t]o 
reduce (esp. something unwanted or unpleasant) to

[[Page 24284]]

the smallest possible amount, extent, or degree.'' Minimize, Oxford 
English Dictionary, https://www.oed.com/search/dictionary/?scope=Entries&q=minimize (last assessed on October 26, 2023). 
Similarly, the term ``mitigate'' means ``[t]o alleviate or give relief 
from (an illness or symptom, pain, suffering, sorrow, etc.); to lessen 
the trouble caused by (an evil or difficulty).'' Mitigate, Oxford 
English Dictionary, https://www.oed.com/dictionary/mitigate_v?tab=meaning_and_use#36427497 (last accessed on October 26, 
2023).
    The Services' view of the proper interpretation of section 10 and 
section 7 is longstanding. For instance, the Services' position that 
Congress did not intend for section 10 to establish more rigorous 
criteria for addressing the same impacts of incidental take than 
section 7 is found in the preamble to the 1989 rule that finalized 
revisions to the implementing regulations for addressing incidental 
take of marine mammals under the Marine Mammal Protection Act and the 
ESA. See Incidental Take of Endangered, Threatened, or Other Depleted 
Marine Mammals, Final Rule, 54 FR 40338 at 40346, September 29, 1989. 
In the response to public comments, the Services specifically rejected 
a comment suggesting that ESA section 10(a)(1)(B) provided for 
heightened requirements over section 7(a)(2). See id. The Services 
stated the two sections were intended to provide ``the same level of 
protection for endangered and threatened species.'' Id. According to 
the Services, these comments ``misconstrued the purpose and effect of 
section 10 provisions relating to private actions'' because they 
implied that ``private activities are subject to stricter protection 
standards than activities with Federal involvement.'' Id. As the 
Services further explained, there was ``no indication in the ESA or its 
legislative history that Congress intended to set up substantially 
different or stricter protection standards for private activities by 
requiring a conservation plan.'' Id.
    For these reasons, section 10's reference to measures that 
``minimize and mitigate'' impacts from incidental take should not be 
read to limit the Services' ability to specify offsets as RPMs to 
minimize the same impacts in the context of section 7.
    Comment 3: We received some comments indicating the Services' 
current approach that confines RPMs to measures that avoid and reduce 
incidental take levels proposed is consistent with the legislative 
history of the 1982 amendments to the ESA.
    Response: The Services disagree with these comments. Review of the 
legislative history of the 1982 ESA amendments demonstrates that 
Congress considered, but rejected, competing bill language to amend the 
ESA that would have required reasonable and prudent measures under 
section 7 and habitat conservation plans under section 10 to minimize 
``incidental take,'' rather than minimize the ``impacts'' from 
incidental take. S. 2309, 97th Cong. section 6(2) (May 26, 1982). As 
alluded to above, the 1982 ESA amendments changed section 7(b) to 
include provisions concerning incidental taking of listed species. The 
new provisions included in sections 7(b)(4) and 7(o)(2) were aimed at 
addressing a situation in which the Service's biological opinion 
advises a Federal agency and an applicant (if any) that the proposed 
action, or the adoption of reasonable and prudent alternatives, will 
not violate ESA section 7(a)(2), but is still likely to result in 
taking individuals in violation of ESA section 9. See H.R. Conf. Rep. 
No. 97-835, (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2868 (Federal 
agencies receiving a favorable biological opinion still may be 
subjected to citizen suits or civil or criminal penalties for violating 
section 9 of the Act). To remedy this potential conflict, the 1982 ESA 
amendments contained an exemption to the ESA's prohibition on ``take'' 
of listed species for takings that comply with any terms and conditions 
specified in the incidental take statement to carry out the reasonable 
and prudent measures required by the Service. See 16 U.S.C. 1536(b)(4) 
(ESA section 7(b)(4)) and 16 U.S.C. 1536(o)(2) (ESA section 7(o)(2)).
    The two bills under consideration by Congress in reauthorizing and 
amending the ESA in 1982 were H.R. 6133 and S. 2309. Both bills were 
reported out of the respective committees to the full House and Senate 
with important differences in defining the scope of reasonable and 
prudent measures. See H.R. Rep. No. 97-567 (May 17, 1982) and S. Rep. 
No. 97-418 (May 26, 1982). As reported out of the House Committee on 
Merchant Marine and Fisheries, H.R. 6133 contained the language that 
Congress ultimately adopted in the ESA to describe the scope of 
reasonable and prudent measures intended to address the impact of the 
taking on the species: ``those reasonable and prudent measures that the 
Secretary considers necessary or appropriate to minimize such impact.'' 
H.R. 6133, 97th Cong. section 3(2) (May 17, 1982) (emphasis added).
    In contrast, S. 2309, as reported out of the Committee on the 
Environment and Public Works, explicitly directed that these measures 
be confined to reducing incidental take. S. 2309, in relevant part, 
provided ``those reasonable and prudent measures that must be followed 
to minimize such takings of such species.'' S. 2309, 97th Cong. section 
6(2) (May 26, 1982) (emphasis added). Unlike H.R. 6133, this Senate 
bill was explicitly directed at the incidental take itself, rather than 
the impacts on the species.
    In resolving the differences between the House and Senate, the 
Conference Committee chose the House provisions requiring reasonable 
and prudent measures to minimize the impact of the take on the species, 
rather than the Senate amendments that restricted the measures to 
minimizing the levels of take. See H.R. Conf. Rep. No. 97-835, (1982), 
reprinted in 1982 U.S.C.C.A.N. 2860, 2868. On September 20, 1982, and 
September 30, 1982, the Senate and House, respectively, agreed to the 
Conference Report on H.R. 6133. See 128 Cong. Rec. S 11822-24 
(September 20, 1982) and 128 Cong. Rec. H 8040-42 (September 30, 1982). 
H.R. 6133 was subsequently signed by the President and became law on 
October 13, 1982. See Endangered Species Act Amendments of 1982, Pub. 
L. 97-307, 96 Stat, 1411 (October 13, 1982).
    Given that Congress considered and rejected specific language that 
would have restricted reasonable and prudent measures to activities 
aimed at reducing incidental take, the legislative history reveals a 
purposeful choice of Congress in favor of the authority of the Services 
to select measures that address ``impacts to the species'' from 
incidental take, rather than confining these measures to reducing 
incidental take levels only. Consistent with this legislative history, 
all incidental take statements will continue to retain the requirement 
to describe the amount or extent of incidental take for the purpose of 
establishing a clear and transparent measure for re-initiating 
consultation. Thus, impacts on the species, expressed in terms of the 
amount or extent of incidental take, may be minimized by measures that 
not only avoid or reduce incidental take levels, but that also offset 
any residual impacts that cannot be feasibly avoided or reduced. For 
example, if an incidental take statement quantified the amount or 
extent of take as the death of 10 individuals of the species and the 
take of those individuals cannot be avoided or reduced, the Services 
may minimize the loss of those individuals by specifying offsetting 
RPMs such as habitat improvements that would result in the anticipated 
addition of up to 10 individuals

[[Page 24285]]

(provided other regulatory requirements are satisfied).
    Comment 4: Some commenters questioned why the Services were 
proposing to change their long-established position that section 7 
requires minimization of the level of incidental take and that it is 
not appropriate to require mitigation for impacts from incidental take. 
Other commenters noted, however, that no rationale has previously been 
provided to support restricting RPMs to measures that solely avoid or 
reduce incidental take levels.
    Response: We agree with the comments that observed the sparse 
rationale underpinning our prior approach in restricting RPMs to 
avoiding or reducing incidental take within the action area. With this 
rulemaking, however, the Services take this opportunity to explain why 
a change is justified.
    In over 30 years of practice, we have found that there have been 
instances in which impacts from incidental take could not be feasibly 
minimized through measures that avoid or reduce impacts within the 
action area. In some of those instances, the impacts potentially could 
have been minimized through offsetting measures, providing a better 
conservation outcome for the species. Overall, our prior approach of 
focusing solely on reducing the amount or extent of incidental take 
within the action area has led to the continued deterioration of the 
condition of listed species and their habitats and has not sufficiently 
minimized the impact of incidental take. In recognition that our prior 
approach was unnecessarily restrictive in carrying out ESA Section 
7(b)(4)(ii)'s direction to specify those measures that are ``necessary 
or appropriate'' to minimize the impacts of incidental take on the 
species, the Services are, therefore, revising the section 7 
implementing regulations to expand the scope of RPMs to allow for the 
use of offsetting measures. These measures will further minimize the 
impacts of incidental take caused by the action that cannot be feasibly 
avoided or reduced. Under this regulatory change, the amount or extent 
of take described in the incidental take statement will be the maximum 
level of impacts to minimize.
    As explained above, this regulatory revision is based upon a 
careful review of the Act's text, the purposes and policies of the ESA, 
and the 1982 ESA legislative history. Based upon that review, we find 
that this change more fully effectuates the intent of Congress and 
better serves the conservation goals of the ESA. See, e.g., 16 U.S.C. 
1531(b) (describing the conservation purposes of the Act). This 
regulatory revision will allow the Services to specify measures to 
offset residual impacts of incidental take that cannot otherwise be 
feasibly addressed through avoidance and reduction measures. In 
allowing for residual impacts to be addressed, this revision may reduce 
the accumulation of adverse impacts to the species that is often 
referred to as ``death by a thousand cuts,'' which can undermine the 
Act's overarching goal of providing for the conservation of listed 
species.
    As explained in the proposed rule, this approach for identifying 
RPMs will also allow the Services to adhere more effectively to the 
preferred sequence or hierarchy in the development of mitigation. That 
preferred sequence or hierarchy aims to avoid or reduce impacts to the 
species first, and then potentially minimize residual impact to the 
species through offsets.
    Comment 5: Several commenters maintained that the proposal allowing 
for use of offsetting measures as RPMs violates the ``minor change 
rule,'' which requires RPMs to specify only minor changes that do not 
alter the basic design, location, duration, or timing of the action. 
For example, some noted that offsets occurring outside of the action 
area would necessarily violate the ``minor change rule.''
    Response: The Services disagree that the revision allowing for RPMs 
to consist of offsets violates the ``minor change rule.'' Because, in 
most instances, they operate as additional measures to minimize impacts 
of incidental take that cannot be avoided, offsets (regardless of 
whether they occur within or outside of the action area) would not be 
expected to result in any modifications that would prevent the action 
subject to consultation from proceeding as essentially proposed. For 
example, a consultation on a residential development may include RPMs 
that offset the take of members of a listed species through 
contributions to a conservation bank established to repair habitat for 
that species outside of the action area. In this example, the offset 
would not result in any changes to the development, including its 
location, and the development would be able to proceed as planned. On 
the other hand, RPMs that include measures designed to avoid and reduce 
incidental take may result in direct changes to the subject action. In 
the example involving the residential development, for instance, RPMs 
that specify re-routing an access road to skirt the edge of wetland 
habitat for a listed species would result in less incidental take. 
Because the measure directly modifies the design of the residential 
development, the Services would need to consider whether this change 
would be ``minor,'' in compliance with the ``minor change rule.'' If 
the measure would not alter the fundamental design of the development 
project, the action would go forward as essentially planned, and the 
change in design would not violate the ``minor change rule.''
    Because we do not expect offsetting measures that occur outside of 
the action area to violate the ``minor change rule,'' we are adopting 
clarifying language at 50 CFR 402.14(i)(2), which expressly recognizes 
that offsets may occur within or outside of the action area.
    Comment 6: The Services received comments asserting that the 
proposal relating to RPMs should be carried out under section 7(a)(1), 
not section 7(a)(2), of the Act. Additionally, one commenter sought 
specific regulatory changes withholding issuance of an incidental take 
statement unless the relevant action agency has an ESA section 7(a)(1) 
conservation program in place for species covered under the subject 
incidental take statement.
    Response: Although section 7(a)(1) and section 7(a)(2) have 
complementary roles in fulfilling the ESA's conservation goal (see ESA 
section 2(b)), section 7(a)(1) is not the preferred statutory mechanism 
to carry out the Services' revision relating to the use of offsets to 
minimize impacts of incidental take.
    The regulatory changes we are adopting in this final rule relating 
to offsetting RPMs are based on statutory language arising from the 
process set forth in section 7 for the issuance of biological opinions 
and incidental take statements, especially section 7(b). Section 
7(a)(1) provides separate authority not directly related to these 
changes. We, therefore, decline the commenters' request.
    In addition, the ESA provides no authority for the Services to 
require Federal action agencies to have a conservation program under 
ESA section 7(a)(1) as a condition of an incidental take statement. See 
16 U.S.C. 1536(b)(4) (setting forth the conditions for issuance of 
incidental take statements). Therefore, we decline to adopt the 
commenter's recommendation, as it conflicts with the plain language of 
section 7(b)(4) of the Act.
    Comment 7: The Services received comments that claimed the proposal 
recognizing the use of offsets as RPMs could violate the Takings Clause 
of the Fifth Amendment of the United States Constitution. Some of these 
comments urged the Services to withdraw the

[[Page 24286]]

proposal based upon the same concerns raised in the 2018 notice 
announcing the withdrawal of the 2016 FWS Endangered Species Act 
Compensatory Mitigation Policy (83 FR 36469, July 30, 2018).
    Response: In light of the statutory and regulatory requirements in 
place for issuing RPMs, the concerns that the use of offsets as RPMs 
may lead to unconstitutional takings are misplaced. The grounds for 
withdrawing the 2016 FWS Endangered Species Act Compensatory Mitigation 
Policy centered on the notion that offsite mitigation raises concerns 
of whether a sufficient ``nexus'' exists establishing that the relevant 
impact caused by the specific project proponent (rather than some other 
actor) is being addressed through the requested mitigation. See 83 FR 
36469, July 30, 2018. In addition, according to the withdrawal notice, 
mitigation that adhered to the FWS's policy goal of achieving a ``net 
conservation benefit'' (which is no longer in effect) could potentially 
run afoul of Supreme Court precedent requiring ``rough 
proportionality'' between the government's requested mitigation and the 
impact being remedied.
    Under this revision, however, any offsetting measures, regardless 
of whether they are applied within or outside of the action area, must 
be ``necessary or appropriate'' to minimize the impacts of incidental 
take on the species caused by the action that is subject to 
consultation. To be in accordance with this statutory requirement, all 
RPMs (including offsets) must have the requisite nexus between the 
impacts of incidental take caused by the action and measures that 
minimize those impacts. In other words, any offsetting measures that 
are ``necessary or appropriate'' would necessarily target the impacts 
of incidental take caused by the proposed Federal action, though such 
offsets may occur in locations that have been subject to impacts from 
other activities. As previously explained, the Services may minimize 
the impacts of incidental take by specifying offsetting measures (such 
as habitat improvements) that would result in the anticipated addition 
of individuals estimated in the incidental take statement to be taken 
by the proposed action.
    With regard to the concern that mitigation (particularly mitigation 
with the goal of achieving a ``net conservation gain'') will fail to be 
proportional to the harm, offsets specified as RPMs must be 
commensurate with the impact of the incidental taking caused by the 
action. As explained in the preamble of the proposed rule (88 FR 40753, 
June 22, 2023), the scale of the impacts from incidental take will 
serve as the upper limit for the scale of the offset. Importantly, the 
Services are not specifying RPMs with the goal of achieving ``net 
conservation gain,'' which was the planning goal referenced in the 2016 
FWS Endangered Species Act Compensatory Mitigation Policy but is no 
longer the goal used by FWS.
    Comment 8: Some commenters suggested that the proposal to consider 
offsetting measures to minimize the impacts of incidental take exceeds 
the agencies' authority under the ESA. Quoting the decision in Maine 
Lobstermen's Association v. NMFS, 70 F.4th 582, 596 (D.C. Cir. 2023), 
these commenters maintain that Congress intended the Services to have a 
more limited role under section 7 that involves providing expert 
assistance to the Federal action agency, rendering an opinion, and if 
the conclusion is no jeopardy, issuing the incidental take statement.
    Response: The Services disagree that the revision recognizing that 
RPMs may include offsetting measures to minimize impacts of incidental 
take caused by the action subject to consultation represents a broad 
expansion of power in contravention of the ESA. The Act plainly 
authorizes the Services to issue measures that are necessary or 
appropriate to ``minimize'' the impacts of incidental take. As 
explained above, offsetting measures, like measures that avoid and 
reduce incidental take, also minimize the impacts of incidental take on 
the species.
    Under many circumstances, measures that avoid and reduce incidental 
take will be all that is necessary or appropriate to minimize the 
impacts of incidental take. However, in those circumstances when 
impacts from incidental take cannot feasibly be minimized through 
measures that avoid and reduce incidental take, this revision would 
allow the Services to consider offsetting measures for inclusion as 
RPMs. This approach is fully consistent with the Services' statutory 
authority, and the MLA case (which did not address the Services' 
authority with regard to RPMs) does not stand for a contrary position. 
For additional discussion of the MLA case and the requirements of 
section 7, please see the discussion of the case at the beginning of 
the ``Summary of Comments and Responses'' section and the specific 
discussion relating to the removal of Sec.  402.17 above.
    For all the reasons mentioned above, we find that the revision 
recognizing the use of offsets as RPMs is consistent with the plain 
language of the Act, a better reflection of Congressional intent, and 
better serves the conservation goals of the Act.
    Comment 9: We received several comments questioning the 
relationship between the ``minor change rule,'' the Services' 
mitigation policies, and costs of offsets as RPMs.
    Response: Please see our response to comment 5 above regarding the 
relationship between the ``minor change rule'' and the use of offsets 
as RPMs. As a matter of practice, when offsetting measures are 
applicable to a specific formal consultation, the Services will 
identify potential offsetting measures and work with the action agency 
(and applicant, if applicable) when developing RPMs (including offsets) 
to determine, among things, the economic feasibility of these measures. 
Thus, any costs associated with the offsetting measures would be 
considered during development of the measure, in coordination with the 
Federal action agency (and applicant, if applicable), to ensure that 
the offsetting measure is reasonable and prudent. Measures that are 
cost-prohibitive in view of the nature of the action may not be 
considered reasonable and prudent.
    With respect to the Services' consideration of their respective 
mitigation policies, these policies will help inform the development of 
offsetting measures but will not change the statutory or regulatory 
requirements that apply to all RPMs. Offsetting measures will be 
proportionate to the impact of the taking. In addition, monitoring and 
reporting requirements, as part of the terms and conditions, will 
continue to be used to verify implementation and efficacy of RPMs, 
including offsets.

Application

    Comment 1: Several commenters questioned how offsets would be 
developed and state that the relationship of habitat and critical 
habitat to offsetting measures is unclear. Some commenters asked 
whether the Services would use habitat types and ratios to determine 
appropriate offsets.
    Response: RPMs that include offsetting measures will be species-
specific and will depend upon the factual circumstances surrounding the 
consultation. Implementing the offsets specified by the Services would 
be the responsibility of the action agency or applicant. In specifying 
offsetting measures to minimize the impacts of incidental take, the 
Services may identify offsetting measures that are implemented through 
various types of

[[Page 24287]]

mechanisms such as conservation banks, in-lieu fee programs, and other 
kinds of mitigation devices established previously by project 
proponents. However, any offsetting measures included as RPMs would be 
designed to minimize the impact of the incidental take resulting from 
the proposed action to the subject species, and there are 
scientifically recognized techniques and methodologies that have been 
used to determine the appropriate level of offsets for species 
commensurate with the impact of the take to the species. Offsetting 
measures may consist of purchasing, preserving, or restoring the 
habitat of the applicable species impacted by incidental take caused by 
the action. However, offsets do not necessarily have to be applied 
within critical habitat designated for the relevant species. In 
addition, RPMs that include offsetting measures may be directed at 
improving the habitat of the relevant species, regardless of whether 
the proposed action resulted in impacts to that species' habitat. 
Offsets may be based on habitat ratios, equivalency modeling, or one-to 
one replacement, for example. Consistent with the ESA and its 
implementing regulations, offsets will be necessary or appropriate for 
minimizing the impacts of incidental take. In all cases, the impact of 
the take caused by the action, as expressed in the ITS as the amount or 
extent of incidental take, would provide an upper limit on the scale of 
any offsetting measures.
    Comment 2: Several comments requested information on what specific 
mechanisms may be used to deliver offsets, and whether these mechanisms 
may be sponsored by third parties or undertaken by the project 
proponent.
    Response: Some potential mechanisms that could be used to deliver 
offsets include conservation banks, in-lieu fee programs, and 
restoration programs. Other mechanisms that may be considered are 
described in the Services' mitigation policies. Mechanisms that may be 
considered by the Services could be sponsored by third parties or be 
the responsibility of the project-proponent. In addition to the 
Services' mitigation policies that provide guidance in the selection of 
mechanisms to deliver offsets, the FWS, pursuant to the 2021 National 
Defense Authorization Act (Pub. L. 116-283), is preparing a rule 
regarding conservation banking and other mechanisms that, if finalized, 
will address specific criteria and requirements of those mechanisms to 
receive FWS approval.
    Comment 3: Several commenters expressed concern regarding the lack 
of existing mitigation banks or in-lieu fee programs for various 
species or parts of the country, which they contend may result in a 
delay in completing consultation and implementing their project.
    Response: The Services do not anticipate that the lack of available 
offsetting mechanisms would result in delays to completing 
consultations in a timely manner or within the statutory or regulatory 
time frames. The Services understand the current availability of third-
party offset mechanisms (e.g., conservation banks and in lieu fee 
programs) varies greatly across the country and by species, and we will 
consider the availability of these mechanisms when identifying RPMs. If 
these mechanisms to deliver offsets are not available, the Services 
anticipate that such measures would generally not be identified as an 
RPM. However, more banks and in-lieu fee programs are being established 
each year as identified in the Regulatory In-lieu Fee and Bank 
Information Tracking System (U.S. Army Corps of Engineers, RIBITS: 
Regulatory In-lieu Fee and Bank Information Tracking System, last 
accessed November 8, 2023. https://ribits.ops.usace.army.mil/ords/f?p=107:2:5966340072209). Again, the availability of existing 
mechanisms is one important factor the Services will consider when 
determining whether measures are necessary or appropriate to minimize 
the impact of incidental take.
    Comment 4: Some commenters recommended avoiding redundant, 
additional layers of regulation and multiple mitigation mandates.
    Response: The Services disagree that the regulatory change to the 
scope of RPMs will create redundant regulation and additional 
mitigation mandates. On the contrary, this regulatory change is in 
alignment with our initiatives to develop efficiencies and holistic 
approaches to conserving federally listed species. This regulatory 
change was developed in consideration of existing regulatory frameworks 
(e.g., Clean Water Act Section 404(b)(1) Guidelines) used by permitting 
agencies with whom the Services have routinely worked in the 
conservation of listed species. Mitigation associated with other 
existing regulatory frameworks is often included in the proposed action 
by the action agency requesting consultation. The effect of these 
mitigation measures is considered in the jeopardy analysis and can also 
minimize the impacts of incidental take caused by the proposed action. 
When the proposed action includes mitigation measures, there may be no 
need to include additional offsets as RPMs. As part of the Services' 
initiatives aimed at leveraging other conservation efforts and building 
consistency and efficiencies in planning and implementing resource 
offsets, this regulatory revision promotes conservation at a landscape 
scale to help achieve the conservation purposes of the ESA. In 
promoting these purposes, the revision would provide flexibility to the 
Services to specify measures to address impacts from incidental take 
that cannot be feasibly addressed through measures that avoid or reduce 
incidental take. As mentioned in the preamble of the proposed rule (88 
FR 40753, June 22, 2023), impacts from incidental take that are not 
addressed can accumulate over time, potentially leading to more severe 
impacts on the species (sometimes referenced as ``death by a thousand 
cuts''). In addition, to the extent that RPMs may not be feasible 
within the action area, this revision provides the flexibility to 
specify measures within locations outside of the action area that serve 
as important corridors for species survival, reproduction, or 
distribution, providing benefits to the species on a landscape scale.
    Comment 5: A few commenters asked for clarification or a definition 
of the term ``feasibly'' proposed in the RPM regulatory revisions at 50 
CFR 402.14(i)(3): 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.
    These commenters requested the Services describe the circumstances 
under which the Services will determine that the impacts of the agency 
action ``cannot feasibly'' be ``avoided or reduced'' within the action 
area.
    Response: The term ``feasibly'' should be understood to have the 
same ordinary meaning found in the dictionary definition of that term. 
For instance, ``feasibly'' is the adverb form of the term ``feasible,'' 
which means ``[o]f a design, project, etc.: [c]apable of being done, 
accomplished or carried out; possible, practicable''. Feasible, Oxford 
English Dictionary, https://www.oed.com/search/dictionary/?scope=Entries&q=feasible (last accessed on November 5, 2023). We, 
therefore, do not find that a regulatory definition is needed. The 
Services may find measures that avoid or reduce incidental take cannot 
feasibly minimize the impacts of incidental take when such measures 
would violate the

[[Page 24288]]

``minor change rule.'' Or, in some cases, the Services may determine 
that specifying measures that avoid or reduce incidental take within 
the action area as RPMs would not be feasible because the degraded 
condition of the area would require cost prohibitive measures that are 
not reasonable and prudent. Under these types of limited circumstances, 
the Services may consider minimizing the impacts from incidental take 
caused by the proposed action through offsetting measures that occur 
within or outside of the action area.
    Comment 6: We received several comments related to the preferred 
order of RPMs and a request for clarification of the term ``priority.'' 
Many commenters supported a preferred order/hierarchy, while others 
wanted more flexibility.
    Response: Under this regulatory change expanding the scope of RPMs, 
the Services will place a priority on measures that avoid or reduce 
incidental take over offsetting measures. In recognition of the 
Services' preference to specify measures that prevent incidental take 
from occurring in the first instance, we will first consider measures 
that avoid or reduce incidental take in the action area. See 88 FR 
40753, June 22, 2023. If impacts from incidental take cannot be 
feasibly minimized through measures that avoid or reduce incidental 
take, the Services will then consider offsetting measures to minimize 
the residual impacts of incidental take in the action area. After 
considering whether offsetting measures can feasibly be applied within 
the action area, the Services may then consider specifying offsets 
outside of the action area to minimize the impacts of incidental take 
caused by the action subject to consultation. In summary, the steps are 
as follows:
    1. Avoid or reduce, within the action area, the impact of 
incidental taking on the species.
    2. Offset, within the action area, the impact of incidental taking 
on the species.
    3. Offset, outside the action area, the impact of incidental taking 
on the species.
    Comment 7: One commenter stated that the determination of whether 
offsetting RPMs are or are not reasonably available in the action area 
may depend in part on whether the action area is broadly or narrowly 
defined and how well the site-specific effects of the proposed Federal 
action are identified and analyzed in the biological opinion. The 
commenter asked the Services to clarify how they will ensure that an 
action area is properly drawn and keyed to the actual impacts of the 
agency action and that the effects of the action are properly analyzed 
at a site-specific level, to minimize the potential for arbitrary 
determinations that off-site mitigation is necessary.
    Response: The Services do not define the action area broadly or 
narrowly for the purpose of ensuring that RPMs are available in the 
action area. In accordance with the regulatory definition of ``action 
area,'' the action area must be based upon the specific action subject 
to the consultation and must consist of ``all areas to be affected 
directly or indirectly by the Federal action and are not merely the 
immediate area involved in the action.'' 50 CFR 402.02. The Services 
did not propose any changes to the definition of ``action area'' or the 
process of defining it. Thus, the Services will continue to ensure that 
an action area is properly drawn and keyed to the actual impacts of the 
agency action and that the effects of the action are properly analyzed 
within the defined action area. Regarding application of offsetting 
measures, the Services clarify that offsetting measures could be 
included as RPMs inside and outside the action area. As previously 
explained in comment 6 above, the Services will follow a preferred 
sequence for developing RPMs that is set forth in Sec.  402.14(i)(3) of 
the implementing regulations. Under this preferred order for specifying 
RPMs, we anticipate that offsetting measures outside of the action area 
will be specified under limited circumstances when, for instance, RPMs 
within the action area would violate the ``minor change rule'' or would 
not be economically or technologically feasible.
    Comment 8: Several commenters requested additional detailed 
information on the specific timing for implementing offsetting measures 
to minimize the impacts of incidental take.
    Response: Ideally, offsetting measures would be implemented in 
advance of the impact from the action occurring in order to reduce risk 
and uncertainty and reduce the temporal impacts from incidental take. 
However, the timing of implementation will be determined on a case-by-
case basis and will depend upon various factors such as the 
availability of existing mechanisms to offset impacts from incidental 
take (e.g., conservation banks) and the best scientific and commercial 
data available.
    Comment 9: Several commenters requested additional detailed 
information on the location of offsetting measures outside of the 
action area.
    Response: As stated above, the specific location of offsetting 
measures will be determined on a case-by-case basis and will depend 
upon various factors such as the availability of existing mechanisms to 
offset impacts from incidental take and the best scientific and 
commercial data available.
    Comment 10: Many commenters supported the application of RPMs 
outside the action area when such application would create efficiencies 
and be beneficial.
    Response: The Services appreciate the commenters' support, and we 
agree that the regulatory change allowing for the application of RPMs 
outside the action area will provide additional conservation benefits 
to affected species and create efficiencies in extending these 
benefits. For example, additional benefits would be provided to the 
affected species when measures that avoid or reduce incidental take 
could not feasibly be applied. The regulation can also create 
efficiencies by using established mechanisms to deliver offsets, such 
as specifying the purchase of an offsetting credit from a conservation 
bank already established and approved in connection with a habitat 
conservation plan (HCP).
    Comment 11: One commenter expressed concern that allowing RPMs to 
go outside the action area may be in conflict with County, State, and 
Tribal mitigation programs that require offsets to be implemented 
locally.
    Response: As stated previously, all RPMs must be reasonable and 
prudent and within the authority of the action agency to implement. If 
there are laws that apply to the proposed action that require all 
mitigative measures to be located within a specific geographic area 
(locally) and offsetting measures outside of that area would violate 
those legal restrictions, then the offsets would not be within the 
action agency's (or applicant's) authority to implement.
    Comment 12: One commenter contends that offsetting measures should 
not be required for biological opinions that use surrogates to express 
the amount or extent of anticipated take because it is hard to 
determine if take even occurs since the ``reasonable certainty'' 
standard does not require a guarantee that take will occur.
    Response: The Services decline to adopt the commenter's suggestion 
to exclude the use of offsetting measures when a surrogate is used to 
express the amount or extent of the taking caused by the action. This 
suggestion conflicts with the ESA's requirement to specify RPMs that 
are necessary or appropriate to minimize the impacts of incidental

[[Page 24289]]

take on the species. The implementing regulations governing the use of 
surrogates in estimating the amount or extent of incidental take is 
found at Sec.  402.14(i)(1)(i). When using surrogates, the Services are 
required to ensure they establish a clear standard for determining when 
the level of anticipated take has been exceeded. Because many 
offsetting measures are likely to be habitat-based and the Services 
often use impacts to habitat as a surrogate for estimating the amount 
or extent of incidental take, the metrics used to identify a surrogate 
can be useful and appropriate for establishing offsetting measures as 
RPMs. For example, if a surrogate for take of a cryptic listed insect 
is identified by the number of host trees lost that the species uses 
for reproduction and survival, measures to conserve the amount of host 
trees lost due to the action could also serve as offsetting RPMs.
    Comment 13: Some commenters stated that monitoring and reporting on 
the implementation of the offsetting measures is needed.
    Response: As with all incidental take statements, monitoring and 
reporting are required parts of the terms and conditions to implement 
RPMs, pursuant to ESA section 7(b)(4)(iv) and its implementing 
regulations. This statutory and regulatory requirement would still 
apply to the terms and conditions to carry out offsetting measures, and 
this rulemaking does not make any changes to that requirement. 
Regardless of whether third-party mitigation arrangements or project 
proponent mitigation is used, these mechanisms for delivering offsets 
must satisfy any monitoring and reporting requirements contained in the 
terms and conditions of the incidental take statement.
    Comment 14: Some commenters requested that specific actions be 
excluded from the Services' ability to impose additional RPMs that 
offset impacts. One example mentioned by commenters as warranting 
exclusion from imposition of additional RPMs involves consultations on 
habitat restoration projects that have net benefits to habitat 
functions or services.
    Response: Identifying specific types of actions for exclusion in 
this rulemaking may be in conflict with the requirements of section 7 
and cannot be predicted in advance. Thus, we decline to specify such 
actions. However, in practice, the Services have found that project 
proponents of these types of specific actions often voluntarily include 
measures that minimize the impacts of incidental take, potentially 
eliminating the need for additional RPMs.
    Comment 15: One commenter stated they ``oppose perpetual offsets in 
situations where a species is not meeting recovery goals and there is 
not a clear or quantifiable link to pesticides as a stressor.''
    Response: We interpret that this commenter intended to oppose 
offsets that are perpetual in nature for species in decline and offsets 
that are not directly linked to the amount or extent of incidental take 
identified in the incidental take statement. However, it is important 
to note that RPMs are required to be ``necessary or appropriate'' to 
minimize the impacts of incidental take that is reasonably likely to 
occur from the proposed action. To be in accordance with these 
statutory and regulatory requirements, all RPMs (including offsets) 
must have the requisite nexus between the impacts of incidental take 
caused by the action and the measures that minimize those impacts. 
Thus, offsetting measures, as with all RPMs, would not address impacts 
caused by other activities that are not the subject of the 
consultation. RPMs, including offsets (if appropriate), whether 
perpetual or not, will be determined on a case-by-case basis.
    Comment 16: Several commenters asked for sideboards that limit the 
extent of offsetting measures and how the Services will minimize 
uncertainty, prevent inconsistency, and ensure that offsetting RPMs are 
not arbitrary. Other commenters stated that offsets should achieve a 
``no net loss,'' or even a net gain, with no upper limit.
    Response: As explained in the preamble of the proposed rule (88 FR 
40753, June 22, 2023) and elsewhere in this final rulemaking, there are 
several statutory and regulatory standards that will govern the 
application of offsetting measures. First, only after fully considering 
measures that will avoid or, reduce incidental take would the Services 
consider specifying measures that offset the residual impacts of 
incidental take that cannot feasibly be avoided. In most cases, 
measures that avoid or reduce incidental take within the action area 
will be preferred in minimizing the impacts of incidental take, 
consistent with the preferred sequence at 50 CFR 402.14(i)(3) and as 
further described in the response to comment number 6 above.
    Second, the Services will coordinate as appropriate with the action 
agency and applicant, if any, on development of offsetting measures. As 
always, this coordination is essential to ensure that RPMs are within a 
Federal action agency's, and applicant's (if any), authority or 
discretion to implement. All RPMs, including offsetting measures, must 
be reasonable and prudent; any RPMs, including those consisting of 
offsetting measures, that are not within a Federal action agency's, and 
applicant's (if any), authority or discretion to implement would not be 
reasonable and prudent. Measures that are cost-prohibitive may also not 
be reasonable and prudent to minimize the impacts of incidental take.
    Third, the impact of the incidental take on the species caused by 
the action will provide the upper limit on the scale of any offsetting 
measures. Only offsetting measures that are necessary or appropriate to 
minimize the impacts of incidental take will be specified as RPMs. 
Thus, RPMs, including those consisting of offsetting measures, will be 
proportional to the impacts of incidental take caused by the action and 
not be required to provide a net benefit to the species.
    Fourth, as with all RPMs, monitoring and reporting requirements 
will be required as part of the terms and conditions of the ITS.
    Lastly, this revision to the scope of RPMs does not change the 
Services' long-standing practice of working with Federal action 
agencies and applicants in developing ``conservation measures,'' as 
defined in the 1998 Consultation Handbook, that may be voluntarily 
incorporated as part of the ``action'' to minimize adverse effects. In 
fact, the Services have a long history of working with Federal action 
agencies and applicants to develop these voluntary measures, some of 
which include offsets, to produce strong conservation outcomes. The 
Services' expertise gained in developing offsetting measures that may 
be incorporated as part of the action will be used in the development 
of offsets included as RPMs.
    Comment 17: We received comments questioning whether offsetting 
RPMs would be applied to consultations on listed plant species and 
critical habitat.
    Response: As with all RPMs, RPMs that consist of offsets, are 
specified to minimize the impacts of incidental take of wildlife (not 
plants or critical habitat) caused by the action. Because incidental 
take statements are issued only for incidental take of wildlife, this 
regulatory revision allowing for offsetting measures as RPMs would not 
apply to plants or critical habitat.
    Comment 18: Several commenters shared concerns regarding the costs 
of offsetting measures. Some stated the costs would be significant to 
the regulated community and some stated

[[Page 24290]]

the cost is unpredictable, but the range of potential costs is 
substantial.
    Response: Offsetting measures, as with all RPMs, do have an 
associated cost. However, we anticipate offsetting measures will be 
used in limited circumstances. For example, most consultations are 
completed informally, and this regulation would apply only 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 offsets would be considered only if measures that avoid or 
reduce incidental take cannot feasibly minimize the impacts of 
incidental take caused by the proposed action. Although we anticipate 
that offsetting measures will be used under limited circumstances when 
measures that avoid or reduce incidental take cannot feasibly be 
applied, 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 ``necessary or appropriate,'' commensurate with the residual 
impacts of incidental take caused by the proposed action. In addition, 
as previously mentioned, the Services consider the economic feasibility 
of any RPMs.

All Other Aspects of the 2019 Rule

    As stated earlier, the proposed rule also sought comment on all 
aspects of the 2019 rule. Although the vast majority of the comments 
received on all other aspects of the 2019 rule were non-substantive, we 
did receive substantive comments and other relevant comments warranting 
response on the topics of the definition of ``destruction or adverse 
modification,'' programmatic consultations, non-Federal 
representatives, Sec.  402.13(c)(2) informal consultation timelines, 
Sec.  402.14(h)(3) and (4) adoption of analysis, section 7(a)(1) 
(programs for the conservation of listed species), project 
modifications, the geographic scope of section 7(a)(2), and ``small 
Federal handle.'' Our responses to the comments on these topics and 
others are provided below.

Destruction or Adverse Modification

    Comment 1: Commenters request the removal of the phrase ``as a 
whole'' from the definition of destruction or adverse modification. 
These commenters assert that the phrase undermines conservation and 
recovery of species because it would allow more piecemeal, incremental 
losses of critical habitat over time that would add up cumulatively to 
significant losses or fragmentation (referred to by many comments as 
``death by a thousand cuts''). Furthermore, they contend the phrase 
``as a whole'' limits the Services' ability to analyze impacts and 
lacks scientific justification.
    Response: As discussed in the 2019 rule (see 84 FR 44976 at 44983-
44985, August 27, 2019), the Services again decline to remove the 
phrase ``as a whole'' from the definition of destruction or adverse 
modification. The definition of ``destruction or adverse modification'' 
is focused first on the critical habitat itself, and then considers how 
alteration of that habitat affects the ``conservation'' value of 
critical habitat. The phrase ``as a whole'' will not reduce or alter 
how the Services consider the effects of small changes to critical 
habitat. This approach is fully consistent with the nature of critical 
habitat and the duty to avoid destruction or adverse modification of 
critical habitat under the Act, as well as the scientific principles 
underlying those provisions.
    Additionally, this approach does not limit our ability to analyze 
impacts to critical habitat using the best available scientific and 
commercial information. As discussed in the 2019 rule, consistent with 
longstanding practice and guidance, the Services must place impacts to 
critical habitat into the context of the entire designation to 
determine if the overall value of the critical habitat is likely to be 
appreciably reduced, but this consideration does not mean that the 
entirety of the designated critical habitat must be affected by the 
proposed action. This situation could occur where, for example, a 
smaller affected area of habitat is particularly important for the 
conservation of a species (e.g., a primary breeding site). Thus, the 
size or proportion of the affected area is not determinative; impacts 
to a smaller area may in some cases result in a determination of 
destruction or adverse modification, while impacts to a large 
geographic area will not always result in such a finding.
    Moreover, with regard to concerns of ``death by a thousand cuts,'' 
the regulations require the Services' biological opinion to assess the 
status of the critical habitat (including threats and trends), the 
``environmental baseline'' of the action area, and cumulative effects. 
The Services' summary of the status of the affected species or critical 
habitat considers the historical and past impacts of activities across 
time and space for the entire listed entity and critical habitat 
designation. In this context, the effects of any particular action and 
``cumulative effects'' are added to those impacts identified in the 
``environmental baseline.'' This analytical process avoids situations 
where each individual action, when viewed in isolation, may cause only 
relatively minor adverse effects but, over time, accumulated effects of 
these actions would erode the conservation value of the critical 
habitat. In the 2019 rule, we clarified the text in Sec.  402.14(g)(4) 
regarding status of the species and critical habitat to better 
articulate the analytical process used to determine whether an action 
is likely to jeopardize the continued existence of listed species or 
result in the destruction or adverse modification of critical habitat. 
The clarification helped to ensure the ``incremental losses'' described 
by the commenters are appropriately considered in our jeopardy and 
``destruction or adverse modification'' determinations.
    Comment 2: Some commenters asserted that inclusion of ``as a 
whole'' in the definition of destruction or adverse modification is 
inconsistent with case law.
    Response: None of the cases cited favorably by commenters directly 
address the issue of the appropriate scale of the ``destruction or 
adverse modification'' analysis. And while commenters may disagree with 
the holding, the Ninth Circuit Court of Appeals has specifically 
endorsed the approach of analyzing the impacts to critical habitat at 
the scale of the entire designation. See Butte Envtl Council v. U.S. 
Army Corps of Eng'rs, 620 F.3d 936, 947-48 (9th Cir. 2010) (citing the 
Services' 1998 Consultation Handbook at 4-34).
    Comment 3: Some commenters asserted that inclusion of ``as a 
whole'' does not adequately afford protection to critical habitat of 
species that are wide-ranging and migratory.
    Response: As discussed above, the Services' approach to analyzing 
impacts to portions of a critical habitat provides a full assessment of 
individual actions by relying on the jeopardy and

[[Page 24291]]

destruction/adverse modification framework. That framework considers 
the overall status of the critical habitat, and in that context, adds 
the effects of any particular action and any ``cumulative effects'' to 
those impacts identified in the ``environmental baseline.'' Thus, under 
this analytical framework, incremental impacts from prior actions are 
not ignored, and the overall conservation value of critical habitat is 
appropriately preserved for the benefit of the listed species. This 
same framework applies to species with expansive critical habitat 
designations and ensures any impacts to particular areas are 
appropriately considered within the context of the respective critical 
habitat designation as a whole.

Programmatic Consultation

    Comment 1: One commenter requested revision of the definition of 
``programmatic action'' to clarify whether programmatic consultations 
are required, how programmatic consultations can be used, and the roles 
of multiple Federal agencies, and of non-Federal applicants.
    Response: Given the nature of programmatic consultation and the 
significant flexibilities provided by section 7 of the ESA, additional 
details regarding the specifics and scope of programmatic consultation 
are better addressed through updates to the Consultation Handbook 
rather than additional regulatory text. The current definition of 
``programmatic consultation'' is quite broad and covers a broad suite 
of actions that could constitute a program, plan, policy, or regulation 
providing a framework for future proposed actions. See 50 CFR 402.02. 
Although broad, the examples of actions included in the definition are 
not intended to identify every type of program or set of activities 
that may be consulted on programmatically. The programmatic 
consultation process offers great flexibility and can be strategically 
developed to address multiple listed species and multiple Federal 
agencies, including applicants as appropriate, for both informal and 
formal consultations. We encourage Federal agencies and applicants to 
reach out to the Services to discuss the potential ways to structure a 
consultation (such as the use of programmatic consultations) to 
streamline the consultation process.

Non-Federal Representative

    Comment 1: One commenter suggested agencies allow the developer to 
be designated as a ``non-federal representative'' for purposes of 
consultation to prepare the biological assessment and hold pre-
application meetings. The commenter also suggested that NMFS help with 
communication and resolving fundamental questions.
    Response: Regulations at 50 CFR 402.08 allow a Federal agency to 
designate a non-Federal representative for conducting informal 
consultation or preparing a biological assessment. The Services may 
provide technical assistance to the non-Federal representative, in 
coordination with the Federal action agency, to address questions 
regarding the consultation process, but the section 7(a)(2) 
consultation responsibility ultimately lies with the Federal action 
agency.

Section 402.13(c)(2)--Informal Consultation Timelines

    Comment 1: Some commenters advocated for the removal of the 60-day 
timeline in Sec.  402.13(c)(2). Those commenters stated that according 
to information included in the preamble to the 2018 draft revisions, 
only 3 percent of informal consultations take more than 3 months to 
complete, and therefore there is no rational justification to adopt a 
timeline to address this low number of informal consultations, nor is 
there reason to believe that this small number of informal 
consultations lasting longer than 3 months causes a problem for action 
agencies. The commenters ask the Services to focus on addressing the 
small number of lengthier informal consultations rather than imposing 
an across-the-board timeline.
    Response: The Services are retaining the 60-day timeline for 
issuing a concurrence or non-concurrence for informal consultations. 
The Services' intention with this timeline is to increase regulatory 
certainty and timeliness for Federal agencies and applicants. Based 
upon more than 3 years of implementing this provision, the Services 
find that the 60-day timeline is justified to promote the goals of 
increasing regulatory certainty and timeliness. As stated in the 
preamble and response to comments in the 2019 rule, the 60-day timeline 
begins only after receipt of information sufficient for the Services to 
determine whether to concur. See Sec.  402.13(c)(2) (requiring 
information similar to the types of information needed to initiate 
formal consultation). The Services typically review all initiation 
request packages within 30 days. In addition, should more time be 
required for the Services' determination, Sec.  402.13(c)(2) provides 
for a 60-day extension upon mutual consent. We anticipate that this 
provision will continue to provide greater certainty for Federal 
agencies and applicants, while ensuring that the Services have 
sufficient information and time to reach an informed decision. Finally, 
we have not experienced problems in practice with Sec.  402.13(c)(2) 
under the 2019 rule; this provision's assurances for regulatory 
certainty and timeliness outweigh any concerns with implementation.

Section 402.14(h)--Adoption of Analysis

    Comment 1: Some commenters expressed concern that the 2023 proposed 
regulations make no change to the 2019 revisions at 50 CFR 
402.14(h)(3)(i) allowing the Services to adopt, as part of their 
biological opinions, all or part of a Federal action agency's 
consultation initiation package. These commenters claim that in doing 
so the Services abdicate their statutory consultation duty in violation 
of ESA section 7(b)(3)(A) (requiring the Services to issue an opinion 
to the action agency).
    Response: The Services disagree that adoption of part or all of the 
information in an action agency's initiation package, including 
biological analyses, violates the ESA. Furthermore, under the 
provision, the Services will not indiscriminately adopt analyses or 
documents from non-Service sources. Rather, the Services perform their 
statutory consultative function, adopting analyses provided in the 
initiation package only after we have conducted an independent 
evaluation to determine whether the analyses meet statutory and 
regulatory requirements, including the requirement to use the best 
scientific and commercial data available. As we expressed in our 
response to comments on the proposed rule to the 2019 rule, the intent 
of this provision is to avoid needless duplication of analyses and 
documents that already meet applicable statutory and regulatory 
standards. In some situations, the Services may supplement or revise 
these analyses or documents to merit inclusion in our letters of 
concurrence or biological opinions, but even in those situations, 
adopting useful existing information makes the consultation process 
more efficient and streamlined.
    In the 2019 rule, we explained that it was already common practice 
for the Services to adopt portions of biological analyses and 
initiation packages in our biological opinions. The codification of 
that practice created a more collaborative process and incentive for 
Federal agencies to produce high-quality analyses and documents 
suitable for inclusion in biological opinions, which streamlines the 
timeframe for

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completion of the consultation. The Services continue to exercise their 
independent judgment and biological expertise in reaching conclusions 
under the ESA.
    Comment 2: Commenters representing the pesticide manufacturing and 
end user communities remained supportive of those provisions of Sec.  
402.14(h)(3) and (4) allowing for a collaborative process and the 
adoption of biological analyses provided by action agencies, explaining 
that adoption of such analyses produced by the Environmental Protection 
Agency (EPA) would further increase collaboration between the Services 
and Federal action agencies, consistent with the commenters' long-
standing advocacy for greater coordination in this vein.
    Response: We agree that Sec.  402.14(h)(3) and (4) continue to add 
value by promoting increased collaboration and allowing for the 
adoption of biological analyses provided by a Federal agency, where 
appropriate and in line with the Services' scientific standards. The 
Services are maintaining these provisions, as they further expediency, 
collaboration, and the use of sound science.

Section 402.14(l)--Expedited Consultation

    Comment 1: Some commenters advocated for the removal of 50 CFR 
402.14(l), which provides for the Services to enter into expedited 
consultation upon mutual agreement with a Federal agency. Commenters 
argued that the Services provided no evidence to support the claim in 
the 2019 rule that the new expedited process ``will benefit species and 
habitats by promoting conservation and recovery through improved 
efficiencies in the section 7 consultation process,'' or ``will still 
allow for the appropriate level of review.'' 84 FR 44976 at 45008, 
August 27, 2019. Commenters noted that the Services provided only one 
example of an action that could benefit from expedited consultation and 
included no qualifying criteria for such projects. The commenters 
express concern that a lack of guidelines on when to apply this 
provision will cause confusion and arbitrary application of the 
regulation.
    Response: The Services' intention in retaining Sec.  402.14(l) is 
to allow for an optional process that is intended to streamline the 
consultation process for those projects that have minimal adverse 
impact but still require a biological opinion and incidental take 
statement and for projects where the effects are either known or are 
predictable and unlikely to cause jeopardy or destruction or adverse 
modification. As we explained in our response to comments in the 2019 
rule, many of these projects historically have been completed under the 
routine formal consultation process and statutory timeframes, and this 
provision will expedite the timelines of the formal consultation 
process for Federal actions while still requiring the same information 
and analysis standards. While less time may be necessary to analyze 
projects that fit under the provision due to their primarily beneficial 
nature or their known and predictable effects, the Services must still 
apply all required analysis to the actions under consideration. We 
simply expect that given the nature of the actions, a streamlined 
process would allow for a better use of our limited resources, yet 
still be consistent with section 7 of the ESA.
    The Services have not included specific qualifying criteria for 
expedited consultations because there is a range of different actions 
or classes of actions that may qualify. Acceptance into expedited 
consultation will require the exercise of independent judgment and 
discretion on the part of the Services for each such request. We also 
note, as we expressed in our response to comments on the 2019 rule, 
that a key element for successful implementation of this process is 
mutual agreement between the Services and Federal agency (and applicant 
when applicable). The mutual agreement will contain the specific 
parameters necessary to complete each step of the process, such as the 
completion of a biological opinion.
    The Services strive to complete consultations within the 
established regulatory deadlines and continue to identify ways to 
improve efficiencies. Section 402.14(l) provides one such streamlining 
mechanism intended to improve efficiencies in the section 7(a)(2) 
consultation process for the Services, Federal agencies, and their 
applicants while ensuring full compliance with the responsibilities of 
section 7. One example of an expedited formal consultation process 
agreed to by the FWS and the USFS is the programmatic consultation for 
the Rangewide Conservation Activities Supporting Whitebark Pine 
Recovery Project (Project). The Project includes ongoing and future 
activities proposed by the USFS to support the conservation of 
federally threatened whitebark pine (Pinus albicaulis) across its 
range, specifically cone collection, scion collection, pollen 
collection, operational seedling production, genetic white pine blister 
rust screening, planting, insect prevention and control, selection and 
care of mature trees with white pine blister rust resistance, 
protection of healthy and unsuppressed regenerating stands, clone 
banks, seed and breeding orchards, genetic evaluation plantations, 
development of seed production areas, surveys, and research, 
monitoring, and education. While these activities are intended to be 
beneficial to whitebark pine, some adverse effects are anticipated to 
occur because of the Project. This expedited consultation process 
reduced the consultation timeline allowing beneficial actions to move 
forward more quickly.
    Comment 2: Commenters representing the pesticide manufacturing and 
end user communities remained supportive of those provisions of Sec.  
402.14(l) allowing for expedited consultation and encourage the 
Services to work with Federal agencies to streamline initiation 
packages by using templates and guidance. Commenters also requested the 
Services reconsider and re-promulgate 50 CFR part 402, subpart D, 
regarding pesticide consultations, following adverse litigation.
    Response: The Services agree that the expedited consultation 
provisions of Sec.  402.14(l) are a potentially valuable tool for 
creating efficiency in the consultation process, including efficiencies 
that could potentially be applied in pesticide consultations. We will 
continue to work with Federal action agencies and applicants to help 
them develop strong biological analyses that can allow for expedited 
consultation. We acknowledge the commenters' request for 
reconsideration of subpart D, which was not the subject of any 
regulatory changes in the 2019 rule and thus outside the scope of this 
rulemaking. Any such changes would require a separate rulemaking 
process, which would first require careful consideration and 
consultation with the EPA and others.

Section 7(a)(1) of the ESA

    Comment 1: Some commenters requested that the Services develop and 
finalize implementing regulations for section 7(a)(1), which requires 
Federal agencies in consultation with the Services to utilize their 
authorities to establish programs for the conservation of listed 
species.
    Response: At this time, because there are no implementing 
regulations for section 7(a)(1), the Services expect to include 
guidance on section 7(a)(1) in an updated Consultation Handbook and 
develop additional guidance as necessary. We recognize there are 
opportunities for Federal action agencies to proactively support 
species conservation, consistent with their

[[Page 24293]]

authorities, and we anticipate that providing additional guidance 
regarding section 7(a)(1) will help further those efforts.

Project Modifications

    Comment 1: One commenter raised issues related to project 
modifications that happen during a consultation, as well as once 
consultation has been completed and a biological opinion or letter of 
concurrence has been issued. The commenter requested that consultation 
continue even if a proposed action has been modified and that changes 
in the action could be reflected in future consultations as part of the 
``environmental baseline.'' The commenter also requested that the 
Services indicate that no further consultation would be needed if an 
action was subsequently modified in such a way that does not increase 
the amount or extent of incidental take.
    Response: The Services note that the commenter's request relates to 
the existing regulations regarding reinitiation of consultation at 
Sec.  402.16. As the commenter noted, criteria exist for the 
reinitiation of completed consultations with issued biological opinions 
or letters of concurrence: These include whether incidental take is 
exceeded; if new information reveals effects of the action that may 
affect listed species or critical habitat in a manner or to an extent 
not previously considered; if the identified action is subsequently 
modified in a manner that causes an effect to the listed species or 
critical habitat that was not considered in the biological opinion or 
written concurrence; or if a new species is listed or critical habitat 
designated that may be affected by the identified action.
    These criteria are independent of one another; thus, modification 
of the action may trigger reinitiation of an already completed 
consultation if the manner of effects changes, even when the extent of 
those effects is not greater. This determination is case-specific, and 
it is beyond the scope of this rule to state that only those cases 
where anticipated incidental take is exceeded would trigger 
reinitiation.
    The commenters also provide an example of a consultation that was 
restarted due to modification of the proposed action as a result of 
``new'' information. With regard to changes to the action or new 
information that arises during a pending consultation, the Services 
typically coordinate with the action agency and any applicant to 
determine the significance of any change or new information and the 
needed response. Although case specific, the responses range from minor 
supplements to the existing initiation package to withdrawal and 
resubmittal of the entire package. This practice ensures the final 
concurrence letter or biological opinion is based on up-to-date 
information, including a correct description of the proposed action.

Geographic Scope of Section 7(a)(2)

    Comment 1: One commenter suggested the Services revise 50 CFR part 
402 to restore the full geographic scope of the Services' 
implementation of the ESA with respect to consultations under section 7 
of the Act.
    Response: This request is beyond the scope of the proposed rule and 
would require a new rulemaking process. The current geographic scope of 
the section 7 regulations as reflected in the definition of ``action'' 
is appropriate, and the Services do not anticipate revisiting this 
issue. See 50 CFR 402.02; 51 FR 19926 at 19930-31, June 3, 1986 
(discussing geographic scope of section 7 of the ESA).

Small Federal Handle

    Comment 1: One commenter suggested that the Services promulgate 
regulations clarifying the scope of ``small Federal handle'' projects 
affording project proponents input into whether to become part of a 
consultation where the Federal agency has only limited authority over 
significant aspects of a larger project.
    Response: The Services decline to adopt regulations clarifying the 
scope of ``small federal handle'' projects. As discussed in the 2019 
rule, when the Services write an incidental take statement for a 
biological opinion under section 7(b)(4)(iv) of the Act, they can 
assign responsibility for specific terms and conditions of the 
incidental take statement to the Federal action agency, the applicant, 
or both, taking into account their respective roles, authorities, and 
responsibilities. The Services have worked with Federal action agencies 
in the past, and will continue to do so into the future, to ensure that 
a reasonable and prudent measure assigned to a Federal action agency 
does not exceed the scope of a Federal action agency's authority.

Other Comments

    Comment 1: One commenter suggested changing the regulatory 
threshold for consulting on federally listed plant species to only 
situations where the project is likely to jeopardize the listed plant.
    Response: The commenter misconstrues the consultation regulations, 
and no regulatory change is needed. The purpose of consultation is for 
the Services to assist the Federal agency in meeting their obligation 
to ensure their action is not likely to jeopardize the continued 
existence of listed species or destroy or adversely modify designated 
critical habitat. Consultation is the process by which the Services 
determine whether the action is likely to jeopardize the listed plant.
    Comment 2: One commenter suggested revisions that would allow 
applicants to choose their method of ESA compliance through a 
programmatic HCP to take advantage of the streamlining opportunity it 
provides rather than being directed into programmatic consultations.
    Response: The Services' existing regulations and practice allow for 
this approach and, in many situations, an applicant's compliance with 
ESA section 7(a)(2) requirements through an existing incidental take 
permit under an ESA section 10 HCP can be achieved. In these cases, 
Federal agencies can meet their separate section 7(a)(2) 
responsibilities using a simple expedited process. Thus, no regulatory 
changes are necessary.
    Comment 3: One commenter suggested that the Services align ESA 
terms similar to terminology in the National Environmental Policy Act 
(NEPA), e.g., ``mitigation,'' and that we use consistent language in 
regulations and not switch between the terms ``effects'' and 
``impacts.''
    Response: The Services decline to undertake the action recommended 
by this commenter. ESA section 7(a)(2) and its implementing regulations 
include specific terms of art that are not interchangeable with terms 
used in other statutory contexts such as NEPA. See above in the 
``environmental baseline'' section for discussion of the Services' use 
of the terms ``effects'' and ``impacts.''
    Comment 4: A couple of commenters stated the ESA Compensatory 
Mitigation Policy was issued without opportunity for public notice and 
comment.
    Response: The FWS ESA Compensatory Mitigation Policy (Appendix 1, 
501 FW 3 https://www.fws.gov/policy-library/a1501fw3) provides 
internal, non-binding guidance and does not establish legally binding 
rules. Because the policy is guidance rather than a rule, there are no 
requirements for public review and comment. Nonetheless, the FWS 
solicited public comment during three separate public comment periods 
related to the 2016 FWS mitigation policies. The initial public comment 
periods solicited input on the proposed revisions to the Mitigation 
Policy (81 FR 12380, March 8, 2016), and on the draft

[[Page 24294]]

ESA Compensatory Mitigation Policy (81 FR 61031, September 2, 2016). 
The FWS later requested additional public comment on the mitigation 
planning goal within both mitigation policies that had already been 
finalized (82 FR 51382, November 6, 2017). The documents, comments, and 
process related to prior revisions may be viewed within docket number 
FWS-HQ-ES-2015-0126 (mitigation) and docket number FWS-HQ-ES-2015-0165 
(compensatory mitigation) on https://www.regulations.gov. The final ESA 
Compensatory Mitigation Policy is substantively similar to the 2016 
policy and reflects input from those previous public-comment 
opportunities.

Comments on Determinations

    Comment 1: One commenter asserted the need to complete intra-
service consultation pursuant to section 7 of the Act on the issuance 
of the final regulations.
    Response: We have addressed this issue in our Required 
Determinations section of the preamble to this final rule.
    Comment 2: Several commenters requested additional economic 
analyses pursuant to Executive Order (E.O.) 12866 and related E.O.s. 
Some commenters suggested that the Services characterize the rulemaking 
as a ``significant regulatory action'' and that we must include an 
economic analysis as specified in Office of Management and Budget (OMB) 
Circular A-4. Several commenters expressed concern with potential costs 
associated with the RPM revisions.
    Response: Although OMB determined that the proposed revisions to 50 
CFR part 402 were a significant regulatory action pursuant to E.O. 
12866, OMB agreed with the Services' assessment that the expected 
effects of the proposed rule did not fall within the scope of E.O. 
12866 section 3(f)(1) and did not warrant an analysis as specified in 
OMB Circular A-4. We do not anticipate the revisions to result in any 
substantial change in our determinations as to whether proposed actions 
are likely to jeopardize listed species or result in the destruction or 
adverse modification of critical habitat. None of these changes are 
expected to result in delays to completing consultations in a timely 
manner or within the statutory or regulatory timeframes. And, although 
offsetting measures as RPMs can be associated with costs, those 
measures must be constrained by the statutory and regulatory 
requirements of RPMs, as we have noted in response to previous 
comments. It is worth noting that any economic analysis of the 
revisions to RPMs would be limited by substantial uncertainty about 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 of RPMs as described above and in the proposed 
rule. Thus, because consultations under section 7(a)(2) are so highly 
fact-specific, it is also not possible to specify future benefits or 
costs stemming from this rulemaking.
    Comment 3: Several commenters believed the Services' findings under 
the Regulatory Flexibility Act (RFA) and consideration of 
responsibilities under Executive Order (E.O.) 13132 (Federalism) and 
E.O. 13211 (Effects on the Energy Supply) were insufficient or 
incorrect. Commenters claimed that modifying existing consultation 
requirements will likely result in increased compliance costs and 
delays for projects involving small entities. The commenters also 
disagreed with our finding for E.O. 12630 (Takings) that the proposed 
rule would not have significant takings implications and that a takings 
implication assessment is not warranted. They urged us to conduct 
additional assessments before finalizing the rule.
    Response: Regarding all required determinations for the rulemaking, 
all the revisions provide transparency and clarity to the consultation 
process under section 7(a)(2) of the Act and align the regulations with 
the plain language of the statute. As a result, we do not anticipate 
any substantial change in our determinations as to whether proposed 
actions are likely to jeopardize listed species or result in the 
destruction or adverse modification of critical habitat. Regarding the 
revisions to RPMs, most consultations under section 7(a)(2) will not be 
affected since most consultations are completed informally, and this 
change would apply only 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.
    Regarding the RFA and E.O. 13211, this final rule which contains 
revisions that provide transparency, clarity, and more closely comport 
with the text of the ESA, will not have a significant economic impact 
on a substantial number of small entities or any other entities and is 
unlikely to cause any adverse effects on energy supply, distribution, 
or use (including a shortfall in supply, price increases, and increased 
use of foreign supplies). An analysis of small entity impacts is 
required when a rule directly affects small entities. However, Federal 
agencies are the only entities directly affected by this rule, and they 
are not considered to be small entities under SBA's size standards. No 
other entities will be directly affected by this rulemaking action. 
While some commenters suggested that the rule may impact small entities 
indirectly as applicants to Federal actions subject to ESA section 
7(a)(2), we are unaware of any significant economic effect on a 
substantial number of small entities. Although we received comments 
raising generalized concerns about alleged potential effects on small 
entities, none of these comments described direct, concrete economic 
effects on small entities, much less ``significant'' economic effects 
on a ``substantial'' number of small entities.
    Regarding E.O. 13132, ``Policies that have federalism 
implications,'' that Executive Order includes federalism implications 
from regulations, legislative comments or proposed legislation, and 
other policy statements or actions that have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. This rulemaking has no such 
federalism implications. Federal agencies are the only entities that 
are directly affected by this rule, as a Federal nexus is necessary for 
requiring consultation under section 7(a)(2) of the ESA. In addition, 
as stated for E.O. 13132 in the Required Determinations section of this 
preamble, this 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.
    Regarding E.O. 12630, as discussed in the proposed rule, this 
rulemaking will not directly affect private property, nor will it cause 
a physical or regulatory taking. It will not result in a physical 
taking because it will not effectively compel a property owner to 
suffer a physical invasion of property. Further,

[[Page 24295]]

the rulemaking will not result in a regulatory taking because it will 
not deny all economically beneficial or productive use of the land or 
aquatic resources. This rule will substantially advance a legitimate 
government interest (conservation and recovery of endangered species 
and threatened species) and will not present a barrier to all 
reasonable and expected beneficial use of private property.

Required Determinations

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

    Executive Order 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 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 
final rule in a manner consistent with these requirements.
    Revisions to 50 CFR part 402. Specifically, the Services are 
revising the 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 the proposed rule explains in detail why 
we anticipate that the regulatory changes we are proposing will improve 
the implementation of the Act (88 FR 40753, June 22, 2023).
    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 destruction or adverse modification of critical habitat.
    As with the 2019 regulations, the revisions in this rule, as 
described above, are intended to provide transparency and clarity and 
align more closely with the statute. As a result, we do not anticipate 
any substantial change in our determinations as to whether proposed 
actions are likely to jeopardize listed species or result in the 
destruction or adverse modification of critical habitat.
    Similarly, although the revisions to the regulatory provisions 
relating to RPMs in this final rule are amendments that were not 
considered in the 2019 rulemaking, this final rule will align the 
regulations with the plain language of the statute. These changes will 
not affect most consultations under section 7(a)(2) of the Act because 
most consultations are completed informally, and this regulation will 
apply only 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 offsets would be considered only if 
measures that avoid or reduce incidental take cannot feasibly minimize 
the impacts of incidental take caused by the proposed action. As 
explained in the preamble language above, the use of offsetting 
measures in RPMs will 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 activities authorized by the 
U.S. Army Corps of Engineers under Section 404 of the Clean Water Act 
(33 U.S.C. 1344).
    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 regulation 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 rule, 
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 rule 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).
    The regulatory changes in this rule 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

[[Page 24296]]

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) 
directly affected by the rule. However, no regulatory flexibility 
analysis is required if the head of an agency, or that person's 
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 certified at the proposed rule stage that this rule would 
not have a significant economic impact on a substantial number of small 
entities (88 FR 40761). We received no information that changes the 
factual basis of this certification.
    This rulemaking revises and clarifies existing requirements for 
Federal agencies, including the Services, under section 7 of the ESA. 
Federal agencies are the only entities directly affected by this rule, 
and they are not considered to be small entities under SBA's size 
standards. No other entities would be directly affected by this 
rulemaking action. While some commenters suggested that the rule may 
impact small entities indirectly as applicants to Federal actions 
subject to ESA section 7(a)(2), we are unaware of any significant 
economic effect on a substantial number of small entities. Although we 
received comments raising generalized concerns about alleged potential 
effects on small entities, none of these comments described direct, 
concrete economic effects on small entities, much less ``significant'' 
economic effects on a ``substantial'' number of small entities.
    This rulemaking applies to determining whether a Federal agency has 
ensured, 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 rulemaking will not result in any additional 
change in our determination as to whether proposed actions are likely 
to jeopardize listed species or result in the destruction or adverse 
modification of critical habitat. This rulemaking serves to provide 
clarity to the standards with which we will evaluate agency actions 
pursuant to section 7 of the ESA.

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 presented under Regulatory 
Flexibility Act above, this rule will 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 rule will 
not impose a cost of $100 million or more in any given year on local or 
State governments or private entities. A small government agency plan 
is not required. As explained above, small governments will not be 
affected because the rule will not place additional requirements on any 
city, county, or other local municipalities.
    (b) This 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; that is, this rule is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule will impose 
no obligations on State, local, or Tribal governments.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this rule will not have significant 
takings implications. This rule will not directly affect private 
property, nor will it cause a physical or regulatory taking. It will 
not result in a physical taking because it will not effectively compel 
a property owner to suffer a physical invasion of property. Further, 
the rule will not result in a regulatory taking because it will not 
deny all economically beneficial or productive use of the land or 
aquatic resources, and it will substantially advance a legitimate 
government interest (conservation and recovery of endangered species 
and threatened species) and will 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 rule 
will have significant federalism effects and have determined that a 
federalism summary impact statement is not required. This rule pertains 
only to improving and clarifying the interagency consultation processes 
under the ESA and will 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 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 rule revises the Service's regulations for protecting 
species pursuant to the Act.

Government-to-Government Relationship With Tribes

    In accordance with E.O. 13175, ``Consultation and Coordination with 
Indian Tribal Governments,'' and the Department of the Interior's 
manual at 512 DM 2, we have considered possible effects of this rule on 
federally recognized Indian Tribes and Alaska Native Corporations. We 
held three informational webinars for federally recognized Tribes in 
January 2023, before the June 22, 2023, proposed rule published, to 
provide a general overview of, and information on how to provide input 
on, a series of rulemakings related to implementation of the Act that 
the Services were developing, including the June 22, 2023, proposed 
rule to revise our regulations at 50 CFR part 402. In July 2023, we 
also held six informational webinars after the proposed rule published, 
to provide additional information to interested parties, including 
Tribes, regarding the proposed regulations. Over 500 attendees, 
including representatives from federally recognized Tribes and Alaska 
Native Corporations, participated in these sessions, and we addressed 
questions from the participants as part of the sessions. We received 
written comments from Tribal organizations; however, we did not receive 
any requests for coordination or government-to-government consultation 
from any federally recognized Tribes.
    This rule is general in nature and does not directly affect any 
specific Tribal lands, treaty rights, or Tribal trust resources. 
Therefore, we conclude that this 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 DOI policies. 
This rule revises regulations for protecting endangered and threatened 
species pursuant to the Act. These regulations will not have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the

[[Page 24297]]

Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes.
    We will continue to collaborate with Tribes and Alaska Native 
Corporations on issues related to federally listed species and their 
habitats and work with them as we implement the provisions of the Act. 
See Secretaries' Order 3206 (``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act,'' June 
5, 1997) and Secretaries' Order 3225 (``Endangered Species Act and 
Subsistence Uses in Alaska (Supplement to Secretarial Order 3206),'' 
January 19, 2001).

Paperwork Reduction Act

    This rule does not contain any new collection of information that 
requires 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

    In the proposed rule we invited the public to comment on whether 
and how the regulation may have a significant impact on the human 
environment, including any effects identified as extraordinary 
circumstances at 43 CFR 46.25 or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. After considering the comments 
received, the Services analyzed this rule in accordance with the 
criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 
et seq.), the Council on Environmental Quality NEPA regulations (40 CFR 
parts 1500-1508), the Department of the Interior (DOI) NEPA regulations 
(43 CFR part 46), the DOI 516 Departmental Manual Chapters 1-4 and 8, 
and the National Oceanic and Atmospheric Administration (NOAA) Policy 
and Procedures for Compliance with the National Environmental Policy 
Act and Related Authorities (NOAA Administrative Order (NAO) 216-6A and 
Companion Manual for NAO 216-6A. This analysis was undertaken in an 
abundance of caution only, as we maintain that one or more categorical 
exclusions apply to this rule. Documentation of our compliance under 
NEPA is available online at https://www.regulations.gov at Docket No. 
FWS-HQ-ES-2021-0104.

Endangered Species Act

    In developing this final 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), with this document, the Services are carrying out 
an action that is at the very core of their unique statutory role as 
administrators--promulgating general implementing regulations or 
revisions to those regulations that interpret the terms and standards 
of the statute.

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

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

Authority

    We issue this final 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.

Regulation Promulgation

    Accordingly, we amend 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

[[Page 24298]]

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; and
    (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 
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. 2024-06902 Filed 4-2-24; 8:45 am]
BILLING CODE 4333-15-P