[Federal Register: June 10, 1999 (Volume 64, Number 111)]
[Page 31285-31287]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Fish and Wildlife Service


National Oceanic and Atmospheric Administration

Notice of Availability of Final Endangered Species Consultation 
Handbook for Procedures for Conducting Consultation and Conference 
Activities Under Section 7 of the Endangered Species Act

AGENCIES: Fish and Wildlife Service, Interior, and National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 

ACTION: Notice


SUMMARY: The Fish and Wildlife Service (FWS) and National Marine 
Fisheries Service (NMFS), hereafter referred to as the Services, 
announce the availability of their final joint Endangered Species 
Consultation Handbook. This document provides internal guidance to all 
employees of the two agencies relative to conducting consultations and 
conferences under section 7 of the Endangered Species Act of 1973, as 
amended (Act). Its purpose is to provide policy and guidance for 
section 7 procedures to promote efficiency and nationwide consistency 
within and between the Services. Although intended primarily as 
internal agency guidance, this handbook is fully available for public 
information and use.

FOR FURTHER INFORMATION CONTACT: Sandy Tucker, Division of Endangered 
Species, Fish and Wildlife Service (telephone 703-358-2106; or Craig 
Johnson, Office of Protected Resources, National Marine Fisheries 
Service (telephone 301-713-1401).



    Section 7 of the Endangered Species Act (16 U.S.C. 1531 et seq.) 
outlines the procedures for interagency cooperation to conserve 
Federally listed species and designated critical habitats. Section 
7(a)(1) of the Act directs all Federal agencies to utilize their 
authorities in furtherance of the purposes of the Act by carrying out 
programs for the conservation of species listed pursuant to the Act. 
Section 7(a)(2) of the Act requires Federal agencies to insure that 
their actions are not likely to jeopardize listed species or result in 
the destruction or adverse modification of designated critical habitat. 
The consultation process between the Services and other Federal 
agencies to verify avoidance of jeopardy is generally defined in 50 CFR 
part 402 and further developed in this handbook.
    This handbook provides consistent procedures for the Services' 
compliance with the consultation and conference provisions of section 7 
of the Act by:
    (1) Providing national procedural and policy guidance;
    (2) Providing standardized guidance to Service offices and 
personnel who participate in consultation and conferencing procedures 
under section 7;
    (3) Providing assistance to other Federal agencies and applicants 
in the non-Federal sector who are involved in section 7 procedures; and
    (4) Providing for conservation of federally listed, proposed, and 
candidate species.
    Within the Fish and Wildlife Service Manual we incorporate the 
handbook by reference into chapter I, part 734.

Public Comments Addressed

    We published the notice of Availability of a draft consultation 
handbook in the Federal Register on December 21, 1994 (59 FR 65781). 
The Services considered all information and recommendations from 
comments submitted on the draft handbook. Our analysis follows.
    Issue #1: Many commenters requested that certain terms used in the 
handbook be defined. Some commenters questioned the clarity or accuracy 
of specific definitions.
    Response: The Services reviewed all the terms mentioned in comment 
letters. We improved definitions as necessary and new definitions were 
added. These were taken from the Act or regulations, if available. If 
not available in those documents, we defined terms by common usage and 
practice developed over 20 years of section 7 implementation. To 
further assist handbook users, we added an expanded glossary with all 
the definitions to the handbook. As terms are used in the text, we 
repeated the definitions and revised the glossary in Appendix E (FWS 
Intra-Service Consultation Handbook).
    Issue #2: Several commenters requested clarification and further 
discussion of the relationship between processes relating to section 7 
and section 10 of the Act.
    Response: The handbook addresses procedures to be used in 
conducting section 7 consultations on the issuance of section 10 
permits. The Services have also jointly produced (November 1996) a 
final handbook entitled Endangered Species Habitat Conservation 
Planning Handbook on the processing of applications for section 10 
``incidental take'' permits. The Habitat Conservation Planning Handbook 
is available from the U.S. Fish and Wildlife Service, Division of 
Endangered Species, 1849 C Street, NW (Mail Stop 420 Arlington Square), 
Washington, DC 20240, or from the Endangered Species Division, National 
Marine Fisheries Service, 1315 East-West Highway (PR-3), Silver Spring, 
MD 20910.
    Issue #3: Commenters on the FWS Intra-Service Consultation Handbook 
were concerned with the requirement that candidate species be addressed 
as though they are proposed for listing and that this infringes on the 
authorities of States to manage non-listed species.
    Response: The FWS Intra-Service Consultation Handbook clarifies 
that the need to address candidate species (species for which FWS has 
adequate information to propose listing) applies only to consultations 
that are being conducted on actions that the FWS is authorizing, 
funding, or carrying out. FWS has implemented this internal policy to 
assist in the conservation of candidate species and to ensure that 
actions taken by FWS will not be a factor in the necessity to list 
candidate species in the future. FWS staff will bear any additional 
workload required to address candidate species in conducting the 
internal FWS section 7 consultation, so no burden will be placed on the 
States. FWS recognizes that the States have the lead for addressing the 
needs of non-listed species and desires to work closely with the States 
in developing conservation plans for candidate species.
    Issue #4: Commenters stated that the handbook should provide a 
better discussion of how the section 7 process interfaces with other 
laws, particularly the National Environmental Policy Act (NEPA), and 
should address ways of streamlining the consultation process.
    Response: A section has been added to the handbook on coordination 
with other environmental reviews which addresses how the NEPA and the 
section 7 processes can be undertaken simultaneously to minimize the 
need for extended consultation time frames. A section has also been 
added to the handbook which outlines streamlined consultation processes 
which are currently ongoing between the Services and other agencies on 
various programs, and encourages the Services to look for ways to 
implement such processes for other existing programs.
    Issue #5: Commenters requested that the handbook clarify the role 
and authority of Federal agencies in the section 7 process, and also 
clarify the involvement of State agencies, Tribal

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governments, and other non-federal parties, especially applicants for 
Federal permits or funds.
    Response: The Services have revised the handbook to better 
recognize the authority of Federal action agencies and to stress that 
the Services will work cooperatively with these agencies during 
consultation, particularly in developing the scope of the proposed 
action, identifying adverse effects to listed species, developing 
reasonable and prudent alternatives to avoid jeopardy, and developing 
reasonable and prudent measures to minimize the impacts of incidental 
take. The Services acknowledge that the action agency can best judge if 
an action is technologically feasible and within their authority to 
carry out.
    In addition, the Services have revised the handbook to encourage 
the inclusion of State and Tribal governments in the consultation 
process. State and Tribal governments, as managers of land and wildlife 
resources, often have information and expertise available which is 
important to the consultation. The Services are committed to notifying 
affected State and Tribal governments of ongoing consultations, and 
requesting that they supply any information pertinent to the 
consultation. While the Services recognize that it is the decision of 
the Federal action agency to include these governmental agencies in the 
formal consultation process, we will encourage Federal agencies to do 
so. Likewise, we will encourage the action agency to include entities 
such as local governments and outside interest groups.
    Issue #6: Commenters requested that the handbook provide more 
specific guidance and examples on a number of issues, including the 
difference between a ``may affect'' and ``not likely to adversely 
affect'' determination, procedures to follow when projects have 
beneficial effects, clarification of timeframes and procedures for the 
various types of consultations, and the discussion of consultations on 
ongoing water projects.
    Response: The Services have added language and examples, where 
appropriate, to clarify all section 7 processes that commenters 
questioned. We provided new flow charts for Informal, Formal, Early, 
and Emergency Consultation processes, and for Conference processes. 
Appendix C includes recent examples of various types of consultations. 
The handbook is approximately 850 double-sided pages in length.

Summary of Streamlining Measures

    The Services have made numerous reforms in the consultation 
handbook to encourage better coordination, shortened consultation 
timeframes, and streamlined consultation processes. Improvements 
    1. Clear guidance and standards for all aspects of the consultation 
    2. Incorporating language and policies which encourage early 
coordination with all parties with an interest in the consultation, 
including other Federal agencies, applicants, State agencies, and 
Tribal governments.
    3. Encouraging coordination with reviews conducted under other 
environmental statutes, including NEPA and the Fish and Wildlife 
Coordination Act.
    4. Requiring the integration of section 7 consultation processes 
with section 10 requirements early in the process of Habitat 
Conservation Plan review and approval.
    5. Establishing joint policies and procedures for FWS and NMFS.
    6. Encouraging development of programmatic consultations and 
streamlined consultation processes. An example of these processes is 
the Memorandum of Agreement developed among the Services, the Forest 
Service, and the Bureau of Land Management to review projects developed 
under the Northwest Forest Plan.

Questions on the Contents of the Handbook

    Questions on the content of the handbook may be addressed to the 
FWS Regional Office nearest you, or to NMFS Headquarters.

FWS Region 1: CA, HI, ID, ND, OR, WA, American Samoa, Commonwealth of 
the Northern Mariana Islands, Guam, and the Pacific Trust Territories

Chief, Division of Consultation and Conservation Planning, U.S. Fish 
and Wildlife Service, Eastside Federal Complex, 911 NE 11th Avenue, 
Portland, Oregon 97232-4181; Telephone: (503) 231-6241; Fax: (503) 231-

FWS Region 2: AZ, NM, OK, TX

Regional ESA Section 7 Coordinator, U.S. Fish and Wildlife Service, 500 
Gold Avenue S.W., (P.O. Box 1306), Albuquerque, New Mexico 87103(-
1306); Telephone: (505) 248-6653; Fax: (505) 248-6922.

FWS Region 3: IA, IL, IN, MI, MN, MO, OH, WI

Chief, Ecological Services Operations, U.S. Fish and Wildlife Service, 
B.H. Whipple Federal Building, 1 Federal Drive, Fort Snelling, 
Minnesota 55111-4056; Telephone: (612) 713-5334; Fax: (612) 713-5292.

FWS Region 4: AL, AR, FL, GA, KY, LA, MS, NC, PR, SC, TN, U.S. Virgin 

Chief, Ecological Services, U.S. Fish and Wildlife Service, 1875 
Century Blvd., Atlanta, Georgia 30345; Telephone: (404) 679-4156; Fax: 
(404) 679-7081.

FWS Region 5: CT, DC, DE, MA, MD, ME, NH, NJ, NY, PA, RI, VA, VT, WV

Chief, Division of Endangered Species, U.S. Fish and Wildlife Service, 
300 Westgate Center Drive, Hadley, MA 01035-9589; Telephone: (413) 253-
8615; Fax: (413) 253-8482.

FWS Region 6: CO, KS, MT, NE, ND, SD, UT, WY

Regional ESA Section 7 Coordinator, U.S. Fish and Wildlife Service, 
Street Address: Lake Plaza North Building, 134 Union Blvd., 4th Floor, 
Lakewood, Colorado 80228; Telephone: (303) 236-7400; Fax: (303) 236-
0027. Mailing Address: Denver Federal Center, P.O. Box 25486, Denver, 
Colorado 80225.

FWS Region 7: AK

Regional Endangered Species Coordinator, U.S. Fish and Wildlife 
Service, 1011 East Tudor Road, Anchorage, Alaska 99503; Telephone: 
(907) 786-3505; Fax: (907) 786-3350.

NMFS Headquarters Office

National Section 7 Coordinator, National Marine Fisheries Service, 
Office of Protected Resources, 1315 East-West Highway, PR 3, Silver 
Spring, Maryland 20910; Telephone: (301) 713-1401 x 174; Fax: (301) 

Where To Obtain a Copy of the Consultation Handbook

    You may purchase copies of the handbook through the Superintendent 
of Documents at the U.S. Government Printing Office (GPO) for $55.00. 
The GPO stock number for the handbook is 024-010-00718-4. Contact the 
Superintendent of Documents order desk at (202) 512-1800 for further 
information. You may find the GPO order form on the Internet at GPO's 
Sales Product Catalog site located at: http://www.access.gpo.gov/

National Environmental Policy Act

    The Department of the Interior has determined that the issuance of 
the consultation handbook is categorically excluded under the 
Department of the Interior's NEPA procedures in 516 DM2,

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Appendix 1.10 and 516 DM 6, Appendix 1.4A(3).


    The editors of this document were Susan Linner and Mary Klee, U.S. 
Fish and Wildlife Service, Division of Endangered Species, Arlington, 
Virginia, and Margaret Lorenz, Endangered Species Division, National 
Marine Fisheries Service, Silver Spring, Maryland.


    The authority for this action is the Endangered Species Act of 1973 
, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 29, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.

    Dated: May 17, 1999.
Hilda Diaz-Soltero,
Director, Office of Protected Resources, National Marine Fisheries 
[FR Doc. 99-14686 Filed 6-9-99; 8:45 am]