[Federal Register: June 5, 2003 (Volume 68, Number 108)]
[Proposed Rules]               
[Page 33805-33812]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 33805]]


Part IV

Department of the Interior


Fish and Wildlife Service


Department of Commerce


National Oceanic and Atmospheric Administration


50 CFR Part 402

Joint Counterpart Endangered Species Act Section 7 Consultation 
Regulations; Proposed Rule

[[Page 33806]]



Fish and Wildlife Service

RIN 1018-AJ02


National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. 030506115-3115-01]
RIN 0648-AR05

Joint Counterpart Endangered Species Act Section 7 Consultation 

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

ACTION: Proposed rule.


SUMMARY: As part of the President's Healthy Forests Initiative 
announced in August 2002, the U.S. Department of the Interior, Fish and 
Wildlife Service (FWS) and the U.S. Department of Commerce, National 
Oceanic and Atmospheric Administration, National Marine Fisheries 
Service (NMFS) (singly or jointly, Service), in cooperation with the 
U.S. Department of Agriculture, Forest Service (FS) and the Bureau of 
Indian Affairs (BIA), Bureau of Land Management (BLM), and National 
Park Service (NPS), are proposing joint counterpart regulations for 
consultation under section 7 of the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) (ESA) to streamline consultation on 
proposed projects that support the National Fire Plan (NFP), an 
interagency strategy approved in 2000 to reduce risks of catastrophic 
wildland fires and restore fire-adapted ecosystems. These counterpart 
regulations, authorized in general at 50 CFR 402.04, will provide an 
optional alternative to the existing section 7 consultation process 
described in 50 CFR part 402, subparts A and B. The counterpart 
regulations complement the general consultation regulations in part 402 
by providing an alternative process for completing section 7 
consultation for agency projects that authorize, fund, or carry out 
actions that support the NFP. The alternative consultation process 
contained in these proposed counterpart regulations will eliminate the 
need to conduct informal consultation and eliminate the requirement to 
obtain written concurrence from the Service for those NFP actions that 
the Action Agency determines are ``not likely to adversely affect'' 
(NLAA) any listed species or designated critical habitat.

DATES: Comments on this proposal must be received by August 4, 2003, to 
be considered in the final decision on this proposal.

ADDRESSES: Comments or materials concerning the proposed rule should be 
sent to the Chief, Division of Consultation, Habitat Conservation 
Planning, Recovery and State Grants, U.S. Fish and Wildlife Service, 
4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203. Comments 
can also be accepted if submitted via e-mail to healthyforests@fws.gov. 
Comments and materials received in conjunction with this rulemaking 
will be available for inspection, by appointment, during normal 
business hours at the above address.
    The FWS has agreed to take responsibility for receipt of public 
comments and will share all comments it receives with NMFS and the 
Action Agencies. All the agencies will work together to compile, 
analyze, and respond to public comments.

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


Implementation of National Fire Plan

    In response to several years of catastrophic wildland fires 
throughout the United States culminating in the particularly severe 
fire season in 2000, when over 6.5 million acres of wildland areas 
burned, President Clinton directed the Departments of the Interior and 
Agriculture to develop a report outlining a new approach to managing 
wildland fires and restoring fire-adapted ecosystems. The report, 
entitled Managing the Impact of Wildfires on Communities and the 
Environment, was issued September 8, 2000. This report set forth ways 
to reduce the impacts of fires on rural communities, a short-term plan 
for rehabilitation of fire-damaged ecosystems, and ways to limit the 
introduction of invasive species and address natural restoration 
processes. The report, and the accompanying budget requests, 
strategies, plans, and direction, have become known as the NFP. The NFP 
is intended to reduce risk to communities and natural resources from 
wildland fires through rehabilitation, restoration and maintenance of 
fire-adapted ecosystems, and by the reduction of accumulated fuels or 
highly combustible fuels on forests, woodlands, grasslands, and 
    In August 2002, during another severe wildland fire season in which 
over 7.1 million acres of wildlands burned, President Bush announced 
the Healthy Forests Initiative. The initiative was intended to 
accelerate implementation of the fuels reduction and ecosystem 
restoration goals of the NFP in order to minimize the damage caused by 
catastrophic wildfires by reducing unnecessary regulatory obstacles 
that have at times delayed and frustrated active land management 
activities. Because of nearly a century of policies to exclude fire 
from performing its historical role in shaping plant communities, fires 
in our public forests and rangelands now threaten people, communities, 
and natural resources in ways never before seen in our Nation's 
    Many of the Nation's forests and rangelands have become unnaturally 
dense as a result of past fire suppression policies. Today's forests 
contain previously unrecorded levels of fuels, while highly flammable 
invasive species now pervade many rangelands. As a result, ecosystem 
health has suffered significantly across much of the Nation. When 
coupled with seasonal droughts, these unhealthy forests and rangelands, 
overloaded with fuels, are vulnerable to unnaturally severe wildland 
fires. The geographic scope of the problem is enormous, with estimates 
approaching 200 million acres of forest and rangeland at risk of 
catastrophic fire. The problem has been building across the landscape 
for decades. Its sheer size makes it impossible to treat all the acres 
needing attention in a few years or even within the next decade.
    In 2002 alone, the Nation experienced over 88,000 wildland fires 
that cost the Federal government $1.6 billion to suppress. Many of 
these wildfires significantly impacted threatened or endangered 
species. The Biscuit Fire burned an area of 499,570 acres in Oregon and 
California that included 49 nest sites and 50,000 acres of designated 
critical habitat for the threatened northern spotted owl and 14 nesting 
areas and 96,000 acres of designated critical habitat for the 
threatened marbled murrelet. The estimated fire suppression cost was 
$134,924,847. The Rodeo-Chediski fire in Arizona, the largest fire in 
the State's post-settlement

[[Page 33807]]

history, burned through 462,614 acres, including 20 nesting areas for 
the threatened Mexican spotted owl. Unless fuel loads can be reduced on 
the thousands of acres classified at high risk of catastrophic 
wildfires, more adverse effects like those of the 2002 fire season are 
certain to occur.
    The long-term strategy for the NFP is to correct problems 
associated with the disruption of natural fire cycles as a result of 
fire suppression policy or fire-prone non-native invasive species and 
minimize risks to public safety and private property due to the 
increase in amount and complexity of the urban/wildland interface. The 
NFP calls for a substantial increase in the number of acres treated 
annually to reduce unnaturally high fuel levels, which will decrease 
the risks to communities and to the environment caused by unplanned and 
unwanted wildland fire. These types of preventative actions will help 
ensure public safety and fulfill the goals of the President's Healthy 
Forests Initiative.
    The FS, BIA, BLM, and NPS, as Federal land management agencies, 
play an important role in implementing actions under the NFP that will 
reduce the potential risks of catastrophic wildland fire. The FWS also 
develops and carries out actions in support of the NFP on National 
Wildlife Refuges or National Fish Hatcheries. These five agencies 
constitute the Action Agencies who may use the counterpart regulations 
proposed herein. The types of projects being conducted by these 
agencies under the NFP include prescribed fire (including naturally 
occurring wildland fires managed to benefit resources), mechanical 
fuels treatments (thinning and removal of fuels to prescribed 
objectives), emergency stabilization, burned area rehabilitation, road 
maintenance and operation activities, ecosystem restoration, and 
culvert replacement actions. Prompt implementation of these types of 
actions will substantially improve the condition of the Nation's 
forests and rangelands and substantially diminish potential losses of 
human lives and property caused by wildland fires. The Service and the 
Action Agencies are proposing these counterpart regulations to 
accelerate the rate at which these type of activities can be 
implemented such that the likelihood of catastrophic wildland fires is 

Federal Fuels Treatment Activities

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

[[Page 33808]]

enhance public safety for the communities around the Parks.
    The BLM is proceeding with many NFP projects to restore dense 
pinyon pine and juniper forests and woodlands, nearly devoid of 
understory shrubs, grasses, and forbs, to a more natural savannah, or 
open woodland conditions. In the Farmington Field Office, New Mexico, 
the Pump Mesa project is a multiple phase project to open up the pinyon 
pine and juniper forest canopy by thinning, wood removal, and 
prescribed burning, to make space, sunlight, water, and nutrients 
available for the manual seeding of native understory species that were 
formerly present on the site. Densities of trees in the pinyon pine 
systems have increased to the point that large proportions of these 
woodlands have become highly combustible, supporting crown fires that 
can produce catastrophic habitat loss for wildlife and high risk to 
nearby communities. In the Richfield Field Office, the Praetor Slope 
Fuel Reduction project will mechanically displace patches of juniper 
and sagebrush to reduce the risk created by large, dense contiguous 
areas of fuel, while creating valuable deer and elk range, complete 
with islands and feathered woodlands that provide necessary animal 
cover. In the Central Montana Fire Management Zone, a number of small 
and moderate-sized prescribed burns, such as in Cow Creek, Little Bull 
Whacker, and Fergus Triangle, have been completed to increase wildlife 
habitat diversity, reduce fuel loads, and increase forage for both 
livestock and wildlife.

Endangered Species Act Section 7 Consultation

    Section 7(a)(2) of the ESA requires that each Federal agency shall, 
in consultation with and with the assistance of the Service, insure 
that any action it authorizes, funds, or carries out is not likely to 
jeopardize the continued existence of any listed species or result in 
destruction or adverse modification of designated critical habitat. 
Section 7(b) of the ESA describes the consultation process, which is 
further developed in regulations at 50 CFR part 402.
    The existing ESA section 7 regulations require an action agency to 
complete formal consultation with the Service on any proposed action 
that may affect a listed species or designated critical habitat, unless 
following either a biological assessment or informal consultation with 
the Service, the action agency makes a determination that a proposed 
action is ``not likely to adversely affect'' any listed species or 
designated critical habitat and obtains written concurrence from the 
Service for the NLAA determination. The alternative consultation 
process contained in these proposed counterpart regulations will allow 
the Service to provide training, oversight, and monitoring to an Action 
Agency through an alternative consultation agreement (ACA) that enables 
the Action Agency to make an NLAA determination for a project 
implementing the NFP without informal consultation or written 
concurrence from the Service.
    Using the existing consultation process, the Action Agencies have 
consulted with the Service on many thousands of proposed actions that 
ultimately received written concurrence from the Service for NLAA 
determinations. Those projects had only insignificant or beneficial 
effects on listed species or posed a discountable risk of adverse 
effects. The concurrence process for such projects has diverted some of 
the consultation resources of the Service from projects in greater need 
of consultation and caused delays. The proposed counterpart regulations 
will effectively reduce these delays by increasing the Service's 
capability to focus on Federal actions requiring formal consultation by 
eliminating the requirement to provide written concurrence for actions 
within the scope of the proposed counterpart regulations.
    The Action Agencies have engaged in thousands of formal and 
informal consultations with the Service in the 30 years since the 
passage of the ESA, and have developed substantial scientific, 
planning, mitigation, and other expertise to support informed decision-
making and to meet their responsibilities under ESA section 7 to avoid 
jeopardy and contribute to recovery of listed species. To meet their 
obligations, the Action Agencies employ large staffs of qualified, 
experienced, and professional wildlife biologists, fisheries 
biologists, botanists, and ecologists to help design, evaluate, and 
implement proposed activities carried out under land use and resource 
management plans. All of the Action Agencies consult with the Service 
on actions that implement land use and resource management plans that 
contribute to the recovery of proposed and listed species and the 
ecosystems upon which they depend. In particular, the informal 
consultation and concurrence process has given the Action Agencies 
considerable familiarity with the standards for making NLAA 
determinations for their proposed actions.
    Action Agencies have developed familiarity with the standards over 
time through various activities. The Action Agencies develop proposals 
and evaluate several thousand actions for possible effects to listed 
species and designated critical habitat. Agency biologists are members 
of listed species recovery teams, contribute to management plans that 
provide specific objectives and guidelines to help recover and protect 
listed species and designated critical habitat, and cooperate on a 
continuing basis with Service personnel. In many parts of the country, 
personnel from the Action Agencies and the Service participate in 
regular meetings to identify new management projects and the effects to 
proposed and listed species through formalized streamlined consultation 
    The Action Agencies' established biological expertise and active 
participation in the consultation process provides a solid base of 
knowledge and understanding of how to implement section 7 of the ESA. 
By taking advantage of this expertise within the Action Agencies, the 
proposed counterpart regulations process will help ensure more timely 
and efficient decisions on planned NFP actions while retaining the 
protection for listed species and designated critical habitat required 
by the ESA and other applicable regulations. The Service can rely upon 
the expertise of the Action Agencies to make NLAA determinations that 
are consistent with the ESA and its implementing regulations. Moreover, 
the Action Agencies are committed to implementing this authority in a 
manner that will be equally as protective of listed species and 
designated critical habitat as the current procedures that require 
written concurrence from the Service.
    The Healthy Forests Initiative builds from the recognition that 
faster environmental reviews of proposed land management projects will 
provide greater benefits to the range, forest lands, and wildlife by 
reducing the risk of catastrophic wildfire while the reviews are 
pending. These proposed counterpart regulations provide an additional 
tool for accomplishing faster reviews. Streamlining the NLAA 
concurrence process offers a significant opportunity to accelerate NFP 
projects while providing equal or greater protection of the resources. 
Under current procedures, the Action Agencies already must complete and 
document a full ESA analysis to reach an NLAA determination. The 
proposed counterpart regulations permit a project to proceed following 
an Action

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Agency's NLAA determination without an overlapping review by the 
Service, where the Service has provided specific training and oversight 
to achieve comparability between the Action Agency's determination and 
the likely outcome of an overlapping review by the Service. These 
counterpart regulations should significantly accelerate planning, 
review, and implementation of NFP actions, and by doing so, should 
contribute to achieving the habitat management and ecosystem 
restoration activities contemplated under the NFP.

Proposed Counterpart Regulations

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

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and effective as possible. We are soliciting comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. Prior to making a final determination on 
this proposed rule, we will take into consideration all relevant 
comments and additional information received during the comment period.
    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to the address specified in 
ADDRESSES. You may also comment via the Internet to 
healthyforests@fws.gov. Please submit Internet comments as an ASCII 
file avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: 1018-AJ02'' and your name and return 
address in your Internet message. If you do not receive confirmation 
from the system that we have received your Internet message, contact us 
directly at (703) 358-2106. Finally, you may hand-deliver comments to 
the address specified in ADDRESSES. Our practice is

[[Page 33810]]

to make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives of officials of organizations 
or businesses, available for public inspection in their entirety.

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
the clarity? (3) Does the format of the rule (e.g., grouping and order 
of sections, use of headings, paragraphing) aid or reduce its clarity? 
(4) Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the rule? What else 
could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. 
You may e-mail your comments to this address: Exsec@ios.doi.gov

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant proposed rule because it may raise novel legal or policy 
issues, and was reviewed by the Office of Management and Budget (OMB) 
in accordance with the four criteria discussed below.
    (a) This counterpart regulation will not have an annual economic 
effect of $100 million or more or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. The 
counterpart regulation for the evaluation of conservation efforts when 
making listing decisions does not pertain to commercial products or 
activities or anything traded in the marketplace.
    (b) This counterpart regulation is not expected to create 
inconsistencies with other agencies' actions. FWS and NMFS are 
responsible for carrying out the Act.
    (c) This counterpart regulation is not expected to significantly 
affect entitlements, grants, user fees, loan programs, or the rights 
and obligations of their recipients.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

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

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

[[Page 33811]]

Executive Order 13211

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

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

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


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


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

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

    These counterpart regulations have been developed by FWS and NMFS, 
jointly with FS, BIA, BLM, and NPS according to 50 CFR 402.04. The FWS 
and NMFS are considered the lead Federal agencies for the preparation 
of this proposed rule, pursuant to 40 CFR 1501. We have analyzed these 
counterpart regulations in accordance with the criteria of the National 
Environmental Policy Act (NEPA), the Department of the Interior Manual 
(318 DM 2.2(g) and 6.3(D)), and National Oceanic and Atmospheric 
Administration (NOAA) Administrative Order 216-6 and have determined 
that an environmental assessment will be prepared prior to finalization 
of the rule.

Government-to-Government Relationship With Indian Tribes

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); E.O. 13175; and the 
Department of the Interior's 512 DM 2, we understand that we must 
relate to recognized Federal Indian Tribes on a Government-to 
Government basis. However, these counterpart regulations do not 
directly affect Tribal resources. These counterpart regulations may 
have an indirect effect on Native American Tribes as the Bureau of 
Indian Affairs may, at its discretion, implement the procedures 
outlined in the counterpart regulations for those activities affecting 
Tribal resources that they may authorize, fund, or carry out under the 
NFP. The intent of these counterpart regulations is to streamline the 
consultation process; therefore, the extent of this indirect effect 
will be wholly beneficial.

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Proposed Regulation Promulgation

    Accordingly the Service proposes to amend part 402, title 50 of the 
Code of Federal Regulations as follows:


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

    Authority: 16 U.S.C. 1531 et seq.

    2. Add a new Subpart C to read as follows:

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

402.30 Definitions.
402.31 Purpose.
402.32 Scope.
402.33 Procedures.
402.34 Oversight.

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

Sec.  402.30  Definitions.

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

Sec.  402.31  Purpose.

    The purpose of these counterpart regulations is to improve the 
consultation process under section 7 of

[[Page 33812]]

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

Sec.  402.32  Scope.

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

Sec.  402.33  Procedures.

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

Sec.  402.34  Oversight.

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

    Dated: May 28, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
    Dated: May 27, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service, National Oceanic and Atmospheric Adminstration.
[FR Doc. 03-14108 Filed 6-2-03; 12:53 pm]