[Federal Register: May 4, 2009 (Volume 74, Number 84)]
[Rules and Regulations]               
[Page 20421-20423]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 402

RIN 1018-AW73


National Oceanic and Atmospheric Administration

50 CFR Part 402

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.


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.



    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.


    Under Public Law 111-8, this action is exempt from any provision of 
statute or regulation establishing a requirement that would otherwise 

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.

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


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

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

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.

* * * * *

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.

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.

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

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 
* * * * *
[FR Doc. E9-10203 Filed 5-1-09; 8:45 am]