[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Rules and Regulations]
[Pages 20421-20423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10203]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 402
RIN 1018-AW73
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[0808011023-9788-04]
RIN 0648-AX87
Interagency Cooperation Under the Endangered Species Act
AGENCIES: Fish and Wildlife Service, Department of the Interior;
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce.
ACTION: Final rule.
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SUMMARY: With this final rule, the Department of the Interior and the
Department of Commerce amend regulations governing interagency
cooperation under the Endangered Species Act of 1973, as amended (ESA).
In accordance with the statutory authority set forth in the 2009
Omnibus Appropriations Act (Pub. L. 111-8), this rule implements the
regulations that were in effect immediately before the effective date
of the regulation issued on December 16, 2008, entitled ``Interagency
Cooperation Under the Endangered Species Act.''
DATES: Effective Date: This rule is effective May 4, 2009. Submit any
comments on potential improvements to our regulations on interagency
consultation under the ESA by August 3, 2009.
ADDRESSES: You may submit comments requested in this rule by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: 1018-AT50; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mailed or faxed comments. We will post all
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary for
Fish and Wildlife and Parks, 1849 C Street, NW., Washington, DC 20240;
telephone: 202-208-3928; or James H. Lecky, Director, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910; telephone: 301-713-2332.
SUPPLEMENTARY INFORMATION:
Background
In 1986, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service (the ``Services'') issued regulations to guide and
govern the consultation process required under section 7 of the
Endangered Species Act (ESA). See 51 FR 19926 (June 3, 1986) (amending
50 CFR Part 402) (``1986 regulations''). These regulations defined key
terms and described the consultation process required to be followed by
Federal action agencies when they take an action that ``may affect''
listed species or critical habitat. On December 16, 2008, the
Departments of the Interior and Commerce issued joint regulations that
modified the 1986 regulations. The primary purposes of these revisions
were to: (1) Redefine several definitions that are central to the
consultation process; (2) narrow the circumstances when Federal
agencies are required to consult with the Services; and (3) establish
timeframes for the informal consultation process. These regulations
became effective January 15, 2009. See 73 FR 76272 (Dec. 16, 2008)
(amending 50 CFR part 402) (``new regulations'').
On March 3, 2009, President Obama issued a memorandum to the heads
of the executive departments and agencies. In that memorandum, the
President noted that the ``Federal Government has long required a
process of broad interagency consultation'' in order to ensure ``the
application of scientific and technical expertise to decisions that may
affect'' listed species. The President noted that the new regulations
modified these requirements. But, as the President observed, the new
regulations afford discretion to Federal action agencies to continue
the previous practice of consulting with, and obtaining the written
concurrence of, the Services. The President requested that the
Secretaries of the Interior and Commerce review the new regulations
[[Page 20422]]
and determine whether to undertake new rulemaking procedures. Further,
the President requested that the heads of all agencies exercise their
discretion to follow the ``prior longstanding'' consultation and
concurrence practices.
Per the President's request, the Departments have reviewed the new
regulations and evaluated whether to undertake new rulemaking regarding
the section 7 consultation processes and standards. Congress enacted
special authority for the Secretary of the Interior and the Secretary
of Commerce that authorized us to withdraw these new regulations and
reinstate the pre-existing ESA section 7 consultation regulations
without following the notice and comment procedures of the
Administrative Procedure Act or other ordinarily applicable procedures.
We believe that it is appropriate to withdraw the new regulations
and return to the ``status quo ante'' pending a comprehensive review of
the ESA section 7 consultation regulations. Recognizing the widespread
public concern about the process in the promulgation of the new
regulations, the Departments agree that a thoughtful, in-depth, and
measured review would be beneficial before a determination is made
regarding potential changes to the section 7 consultation regulations.
The section 7 consultation process is important for the conservation of
species and critical habitat and involves complex and highly technical
issues; the input from career conservation biologists who have
experience with the section 7 consultations and who can provide
scientific and technical expertise should, of course, be a key part of
the process. In addition, any rulemaking process should be accorded a
sufficient period of time to provide for careful, meaningful
involvement of the affected public and to ensure consistency with the
purposes of the ESA. This thorough review will allow the Departments to
identify a range of options and implement improvements, if appropriate.
In light of the President's memorandum, withdrawing the regulations
will not disadvantage federal agencies or applicants for federal
permits and licenses, who already have been requested to use the
consultation procedures that were in effect prior to the new
regulations. Returning to the status quo ante will allow time for a
thorough and thoughtful review while still ensuring that listed species
and critical habitat are not impacted negatively. To begin this
process, as described below, we are requesting comments from the public
to help us identify potential options and improvements to the section 7
regulations that may be appropriate.
Based on the authority provided by section 429(a)(1) and (2) of the
2009 Omnibus Appropriations Act (Pub. L. 111-8), we are hereby
withdrawing the new regulations (the December 16, 2008, final rule).
Specifically, section 429 authorizes us to withdraw the new regulations
``without regard to any provision of statute or regulation that
establishes a requirement for such withdrawal.'' For the reasons
discussed above, we believe withdrawing the regulations immediately is
the best course of action for the protection of listed species and
critical habitat. We, therefore, are not requesting comments on the
withdrawal of the new regulations. As discussed, below, however, we are
requesting comments from the public as to any changes that potentially
may be appropriate to the section 7 regulations. Any further changes
made to the section 7 regulations will be proposed with notice and
comment consistent with the Administrative Procedure Act.
Further, as directed by section 429(a)(2)(b), we are implementing
the section 7 regulations (50 CFR Part 402) as they stood before the
effective date of the December 16, 2008, final rule, concurrent with
withdrawal of the new regulations, in order to ensure there is no
regulatory void and thus to protect the conservation of the species and
their habitat as we review the appropriateness of any regulatory
changes. By this action, the regulations at 50 CFR part 402 are
returned to the version that was in effect on January 14, 2009. This
withdrawal does not affect any actions taken prior to the effective
date of this rule.
Public Comments
We are requesting the public's input regarding potential changes to
the section 7 consultation regulations. We welcome all comments related
to ways to improve the section 7 regulations while retaining the
purposes and policies of the ESA. By way of example, we solicit
comments on: The applicability of section 7, the definitions of
``jeopardy'' and ``adverse modification'', the definition of ``effects
of the action'', the definition of ``action area'', the appropriate
standard of causation, the informal consultation process, methods to
streamline both formal and informal consultation, flexibility for ``low
effect'' consultations, formal consultation requirements, programmatic
consultations, consideration of effects related to global climate
change, incidental take statements, and reinitiation standards.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Classification
Under Public Law 111-8, this action is exempt from any provision of
statute or regulation establishing a requirement that would otherwise
apply.
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
Dated: April 27, 2009.
Ken Salazar,
Secretary of the Interior.
Dated: April 27, 2009.
Gary Locke,
Secretary of Commerce.
0
For the reasons set forth in the preamble, the Departments amend part
402, title 50 of the Code of Federal Regulations as follows:
PART 402--INTERAGENCY COOPERATION--ENDANGERED SPECIES ACT OF 1973,
AS AMENDED
0
1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531, et seq.
0
2. In Sec. 402.02 revise the definitions for ``Biological
assessment,'' ``Cumulative effects,'' and ``Effects of the action'' to
read as follows:
Sec. 402.02 Definitions.
* * * * *
Biological assessment refers to the information prepared by or
under the direction of the Federal agency concerning listed and
proposed species and designated and proposed critical habitat that may
be present in the action area and the evaluation potential effects of
the action on such species and habitat.
* * * * *
Cumulative effects are those effects of future State or private
activities, not involving Federal activities, that are reasonably
certain to occur within the action area of the Federal action subject
to consultation.
* * * * *
Effects of the action refers to the direct and indirect effects of
an action on the species or critical habitat, together with the effects
of other
[[Page 20423]]
activities that are interrelated or interdependent with that action,
that will be added to the environmental baseline. The environmental
baseline includes the past and present impacts of all Federal, State,
or private actions and other human activities in the action area, the
anticipated impacts of all proposed Federal projects in the action area
that have already undergone formal or early section 7 consultation, and
the impact of State or private actions which are contemporaneous with
the consultation in process. Indirect effects are those that are caused
by the proposed action and are later in time, but still are reasonably
certain to occur. Interrelated actions are those that are part of a
larger action and depend on the larger action for their justification.
Interdependent actions are those that have no independent utility apart
from the action under consideration.
* * * * *
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3. Revise Sec. 402.03 to read as follows:
Sec. 402.03 Applicability.
Section 7 and the requirements of this part apply to all actions in
which there is discretionary Federal involvement or control.
0
4. Revise Sec. 402.13 to read as follows:
Sec. 402.13 Informal consultation.
(a) Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the Federal
agency or the designated non-Federal representative, designed to assist
the Federal agency in determining whether formal consultation or a
conference is required. If during informal consultation it is
determined by the Federal agency, with the written concurrence of the
Service, that the action is not likely to adversely affect listed
species or critical habitat, the consultation process is terminated,
and no further action is necessary.
(b) During informal consultation, the Service may suggest
modifications to the action that the Federal agency and any applicant
could implement to avoid the likelihood of adverse effects to listed
species or critical habitat.
0
5. In Sec. 402.14, revise paragraphs (a) and (b)(1) to read as
follows:
Sec. 402.14 Formal consultation.
(a) Requirement for formal consultation. Each Federal agency shall
review its actions at the earliest possible time to determine whether
any action may affect listed species or critical habitat. If such a
determination is made, formal consultation is required, except as noted
in paragraph (b) of this section. The Director may request a Federal
agency to enter into consultation if he identifies any action of that
agency that may affect listed species or critical habitat and for which
there has been no consultation. When such a request is made, the
Director shall forward to the Federal agency a written explanation of
the basis for the request.
(b) Exceptions. (1) A Federal agency need not initiate formal
consultation if, as a result of the preparation of a biological
assessment under Sec. 402.12 or as a result of informal consultation
with the Service under Sec. 402.13, the Federal agency determines,
with the written concurrence of the Director, that the proposed action
is not likely to adversely affect any listed species or critical
habitat.
* * * * *
[FR Doc. E9-10203 Filed 5-1-09; 8:45 am]
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