Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Proposed Rules 2373 

we have also updated contact 

information and our website address to 

review the proposed rule and 

supporting materials. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: January 5, 2021. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2021–00178 Filed 1–8–21; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 402 

[Docket No. FWS–HQ–ES–2020–0102; 

FXES1114090FEDR–201–FF09E30000; 

Docket No. 201231–0363] 

RIN 1018–BF17; 0648–BJ77 

Endangered and Threatened Wildlife 

and Plants; Regulations for 

Interagency Cooperation 

AGENCY: U.S. Fish and Wildlife Service, 

Interior; National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (FWS) and the National Marine 

Fisheries Service (NMFS) (collectively 

referred to as the ‘‘Services’’ or ‘‘we’’) 

propose to amend the Services’ 

consultation regulations under the 

Endangered Species Act of 1973, as 

amended, pertaining to the U.S. Forest 

Service and Bureau of Land 

Management. The proposed revisions 

would clarify that reinitiation of 

consultation would not be required for 

these agencies’ previously approved 

land management plans when new 

information reveals that effects of a plan 

may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered, provided that 

any authorized actions for which the 

new information is relevant will be 

addressed through a separate actionspecific consultation. The proposed 

revisions would also replace the 

existing regulation’s temporary 

instructions concerning National Forest 

System lands with permanent 

instructions. The Services are proposing 

this change to improve and clarify the 

interagency cooperation procedures by 

making them more efficient and 

consistent. 

DATES: We will accept comments from 

all interested parties until February 11, 

2021. Please note that if you are using 

the Federal eRulemaking Portal (see 

ADDRESSES below), the deadline for 

submitting an electronic comment is 

11:59 p.m. Eastern Standard Time on 

this date. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–HQ–ES–2012;2020–0102, 

which is the docket number for this 

rulemaking. Then in the Search panel 

on the left side of the screen, under the 

Document Type heading, click on the 

Proposed Rules link to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment Now!’’ 

(2) By Hard Copy: Submit by U.S. 

mail to: Public Comments Processing, 

Attn: FWS–HQ–ES–2020–0102, U.S. 

Fish and Wildlife Service, MS:JAO/3W, 

5275 Leesburg Pike, Falls Church, VA 

22041–3803 or National Marine 

Fisheries Service, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments below for more information). 

FOR FURTHER INFORMATION CONTACT: Gary 

Frazer, U.S. Fish and Wildlife Service, 

Department of the Interior, Washington, 

DC 20240, telephone 202/208–4646; or 

Samuel D. Rauch, III, National Marine 

Fisheries Service, Department of 

Commerce, 1315 East-West Highway, 

Silver Spring, MD 20910, telephone 

301/427–8000. If you use a 

telecommunications device for the Deaf 

(TDD), call the Federal Relay Service at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

The purposes of the Endangered 

Species Act of 1973, as amended 

(‘‘ESA’’ or ‘‘Act’’; 16 U.S.C. 1531 et 

seq.), are to provide a means to conserve 

the ecosystems upon which listed 

species depend, to develop a program 

for the conservation of listed species, 

and to achieve the purposes of certain 

treaties and conventions. Moreover, the 

Act states that it is the policy of 

Congress that the Federal Government 

shall seek to conserve threatened and 

endangered species and use its 

authorities in furtherance of the 

purposes of the Act. The Lists of 

Endangered and Threatened Wildlife 

and Endangered and Threatened Plants 

(hereafter, ‘‘the Lists’’) are in title 50 of 

the Code of Federal Regulations in part 

17 (§ 17.11(h) and § 17.12(h)). 

Part 402 of title 50 of the Code of 

Federal Regulations establishes the 

procedural regulations governing 

interagency cooperation under section 7 

of the Act, which requires Federal 

agencies, in consultation with and with 

the assistance of the Secretaries of the 

Interior and Commerce, to insure that 

any action authorized, funded, or 

carried out by such agencies is not 

likely to jeopardize the continued 

existence of endangered or threatened 

species or result in the destruction or 

adverse modification of critical habitat 

of such species. The Secretary of the 

Interior and the Secretary of 

Agriculture, through the Bureau of Land 

Management (BLM) and the U.S. Forest 

Service (FS), respectively, are 

responsible for the administration, 

management, and protection of 

approximately 438 million surface acres 

of Federal lands. Congress has directed 

that both Departments develop land 

management plans that provide for 

management of these Federal lands in 

accordance with the concepts of 

multiple use and sustained yield. 

More specifically, the Federal Land 

Policy and Management Act of 1976 

(FLPMA) and the National Forest 

Management Act (NFMA) require the 

Secretaries of the Interior and 

Agriculture, respectively, to ‘‘develop, 

maintain, and, as appropriate, revise’’ 

land management plans and to 

coordinate such planning with other 

Federal agencies. See 43 U.S.C. 1712(a), 

(c)(1)–(c)(9); 16 U.S.C. 1604(a); see also 

Norton v. Southern Utah Wilderness 

Alliance, 542 U.S. 55 (2004) (SUWA); 

Ohio Forestry Ass’n v. Sierra Club, 523 

U.S. 726, 728 (1998) (Ohio Forestry). 

The BLM and FS develop plans that 

provide standards and guidelines for 

land and resource management that 

reflect both economic and 

environmental considerations. Once a 

plan is adopted, the agencies’ individual 

project decisions and associated 

permits, contracts, and other 

instruments regulating use and 

occupancy within a unit covered by the 

plan must be consistent with the plan. 

See 43 U.S.C. 1732(a); 16 U.S.C. 1604(i); 

43 CFR 1601.0–5, 1610.5–3(a); 36 CFR 

219.15. 


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Land management plans are broad 

planning documents that guide longterm natural resource management. 

Unless it expressly states otherwise, a 

plan generally does not authorize any 

on-the-ground action such as road 

building or timber cutting. Ohio 

Forestry, 523 U.S. at 729–730; SUWA, 

542 U.S. at 59, 69–70. Before 

authorizing a project in an area 

governed by an approved land 

management plan, the BLM and FS 

must ensure that the proposed project is 

consistent with the applicable plan, 

while also complying with other 

applicable laws, including section 7 of 

the ESA. 

In 2019, the Services revised 50 CFR 

402.16 to address issues arising under 

the Ninth Circuit’s decision in 

Cottonwood Environmental Law Center 

v. U.S. Forest Service, 789 F.3d 1075 

(9th Cir. 2015), cert. denied, 137 S. Ct. 

293 (2016), which held that the FS must 

reinitiate consultation on its existing 

programmatic forest plan when the FWS 

designated critical habitat for the 

Canada lynx. See 84 FR 44976–45018 

(August 27, 2019). We added a new 

paragraph (b) to 50 CFR 402.16 to clarify 

that the duty to reinitiate consultation 

does not apply to an approved land 

management plan prepared pursuant to 

FLPMA or NFMA when a species is 

added to the Lists or new critical habitat 

is designated, in certain specific 

circumstances, provided that any 

authorized actions that may affect the 

newly listed species or designated 

critical habitat will be addressed 

through a separate action-specific 

consultation. Consistent with the 

Wildfire Suppression Funding and 

Forest Management Activities Act, H.R. 

1625, Division O, section 208, which 

was included in the Omnibus 

Appropriations bill for fiscal year 2018 

(codified at 16 U.S.C. 1604(d)(2)(B)), we 

noted that this statutory exception to 

reinitiation of consultation does not 

apply to those land management plans 

prepared pursuant to 16 U.S.C. 1604 if 

(1) 15 years have passed since the date 

the agency adopted the land 

management plan and (2) 5 years have 

passed since the enactment of Public 

Law 115–141 [March 23, 2018] or the 

date of the listing of a species or the 

designation of critical habitat, 

whichever is later. These statutory 

timing provisions are discussed in 

greater detail below. 

We aligned the application of 

§ 402.16(a)(4) to exclude from 

reinitiation of consultation approved 

land management plans (including 

approved amendments and revisions) 

prepared pursuant to the FLPMA or the 

NFMA that have no immediate on-theground effects, but rather are 

frameworks for future actions. Those 

excluded approved plans contrast with 

specific on-the-ground actions that are 

subject to their own section 7 

consultations if those on-the-ground 

actions may affect listed species or 

critical habitat. Thus, the 2019 revised 

regulation also noted that a previously 

approved land management plan 

prepared pursuant to FLPMA or NFMA 

does not require reinitiation of 

consultation upon the new listing of 

species or new designation of critical 

habitat, if any effects on newly listed 

species or newly designated critical 

habitat (to the extent there are any) will 

be analyzed in a separate section 7 

consultation on a subsequent authorized 

action taken under the plan. 

Proposed Regulatory Revisions 

Concerning New Information 

We now propose to further amend our 

regulations to address a closely related 

issue that also arose in Cottonwood by 

revising § 402.16 (b) to clarify that the 

duty to reinitiate does not apply to an 

approved land management plan 

prepared pursuant to FLPMA, 43 U.S.C. 

1701, or NFMA, 16 U.S.C. 1604, if new 

information reveals effects of the plan 

on listed species or critical habitat in a 

manner or to an extent not previously 

considered, provided that any 

subsequent actions taken pursuant to 

the plan will be subject to a separate 

section 7 consultation if those actions 

may affect listed species or critical 

habitat. Generally, ground-disturbing 

actions would be authorized subsequent 

to approval of the plan and addressed 

through a subsequent action-specific 

consultation. However, there are actions 

in some BLM land management plans 

that allow ground-disturbing action 

upon approval. For example, BLM plans 

may include off-highway vehicle (OHV) 

‘‘open areas’’ that do not require 

subsequent approval. If the plan directly 

authorizes the action (e.g., OHV open 

areas), then this proposed exemption 

from reinitiation does not apply if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered with respect to 

those activities under the plan (e.g., 

OHV use in an open area) that would 

not be subject to future action-specific 

consultation. 

This proposed regulatory revision 

would improve the efficiency of the 

consultation process while ensuring 

consideration of new information prior 

to the implementation of actions that 

may affect listed species or critical 

habitat. Unless they expressly state 

otherwise, completed land management 

plans do not result in any immediate 

on-the-ground effects, and relevant new 

information would be considered during 

a separate section 7 consultation on a 

subsequent action taken in conformance 

with the approved land management 

plan if those actions may affect listed 

species or critical habitat. As discussed 

in greater detail below, this is consistent 

with the government’s longstanding 

legal position that the duty to consult 

under section 7 is limited to affirmative 

agency actions, which include 

prospective or ongoing actions 

authorized, funded, or carried out by 

Federal agencies—but not to completed 

actions or agency inaction. 

Land management plans prepared 

pursuant to NFMA or FLPMA do not 

differ significantly in overall structure 

and generally contain a framework for 

desired conditions, objectives, and 

guidance for project and activity 

decision-making in the plan area. Plans 

do not generally grant, withhold, or 

modify any contract, permit, or other 

legal instrument or create any legal 

rights. As courts have noted, ‘‘a 

statement in a plan that BLM ‘‘will’’ 

take this, that, or the other action’’ is not 

a legally binding commitment 

enforceable under the [Administrative 

Procedure Act.]’ ’’ Forest Guardians v. 

Forsgren, 478 F.3d 1149, 1156 n. 9 (10th 

Cir. 2007) (quoting SUWA, 542 U.S. at 

72). 

The proposed revision appropriately 

relies on the proposition that a land 

management plan prepared pursuant to 

NFMA or FLPMA establishes a 

framework for the development of 

specific future action(s) but does not 

normally authorize future action(s). 

Land management plans do not 

generally fund, authorize, or carry out 

ground-disturbing actions. However, as 

described above, there are actions in 

some BLM land management plans that 

are directly authorized by the plan itself 

and will not be reviewed in a separate 

ESA section 7 consultation. Thus, to the 

extent that new information reveals 

effects to listed species or critical 

habitat from these actions directly 

authorized by the plan and that were 

not previously considered, this 

proposed exemption from reinitiation of 

consultation would not apply. 

The proposed revisions to the 

regulations are consistent with the 

statutory purposes of section 7 of the 

ESA. New information regarding effects 

not previously considered in the 

programmatic biological opinion would 

be evaluated in a separate consultation 

in which more site-specific details 

would be available to better assess any 

impacts on listed species or critical 

habitat. In addition, to the maximum 


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extent that doing so is consistent with 

the agencies’ responsibilities under the 

ESA, the process of updating or 

revisiting programmatic consultations 

on land management plans is usually 

best conducted in conjunction with the 

amendment and revision process set 

forth in the planning statutes rather than 

on an ad hoc basis. Thus, the proposed 

revision to the regulations would make 

the consultation process more efficient 

and consistent, while ensuring that 

species and the habitats upon which 

they depend are conserved. Specifically, 

we propose to revise paragraph (b) of 

§ 402.16 by moving some of the existing 

language to new paragraph (b)(1) and 

adding a new paragraph (b)(2), which 

includes language pertaining to land 

management plans for which new 

information reveals that effects of the 

action may affect listed species or 

critical habitat in a manner or to an 

extent not previously considered. 

Congress did not address land 

management plans prepared pursuant to 

FLPMA in the 2018 Omnibus Act, 

except for grant lands under the Oregon 

and California Revested Lands Act, 39 

Stat. 218, and the Coos Bay Wagon Road 

Reconveyed Lands Act, 40 Stat. 1179. 

No expiration date was attached to these 

provisions. Accordingly, like the 2019 

regulatory exemption from reinitiation 

on the basis of newly listed species or 

designated critical habitat, this proposal 

would exclude from the reinitiation 

requirement any completed land 

management plan prepared pursuant to 

FLPMA from reinitiation of consultation 

on the basis of new information on 

effects of the plan, as long as any action 

taken pursuant to the plan will be 

subject to an action-specific section 7 

consultation if that action may affect a 

listed species or critical habitat. For the 

same reasons set forth below as to 

National Forest System lands, the 

Services conclude that these 

instructions may be established on a 

permanent basis. 

After decades of experience 

cooperating with action agencies across 

the Federal Government, we have 

gained expertise with respect to when 

reinitiation of consultation is most 

effective in meeting the overall goals of 

the Act. As a legal matter, as the 

Department of Justice correctly argued 

in Cottonwood, the duty to reinitiate 

consultation does not apply to 

completed land and resource 

management plans. See, e.g., Forest 

Guardians v. Forsgren, 478 F.3d at 

1158–59 (disagreeing with Pacific Rivers 

Council v. Thomas, 30 F.3d 1050 (9th 

Cir. 1994)). Independently of any such 

legal considerations, as a policy matter, 

similar to reinitiating consultation on a 

land management plan when new 

species are listed or critical habitat 

designated, reinitiation of consultation 

on those plans based on new 

information on effects of the plan does 

little to further the goals of the Act. Both 

the BLM and the FS periodically update 

their land management plans, at which 

time they would consider any new 

information during consultation on 

effects of the plan. The BLM 

periodically evaluates and revises 

resource management plans (see 43 CFR 

subpart 1610), and the interval between 

reevaluations should not exceed 5 years 

(see BLM Handbook H–1601–1 at p. 34). 

FS is required to revise their land 

management plans at least every 15 

years (see 36 CFR 219.7). In addition to 

periodically revising their land 

management plans, both BLM and FS 

are required to consult on any specific 

actions if those actions may affect listed 

species or critical habitat. 

We propose, therefore, to expand 

§ 402.16(b) to apply likewise to the 

receipt of new information revealing 

effects of the action that may affect 

listed species or critical habitat in a 

manner or to an extent not previously 

considered. Requiring reinitiation on 

these completed plans based on new 

information of effects of the existing 

plans often results in impractical and 

disruptive burdens while resulting in 

little benefit to listed species or critical 

habitat. Generally, specific on-theground actions taken in conformance 

with the approved land management 

plan are subject to their own actionspecific section 7 consultations if those 

actions may affect listed species or 

critical habitat, and relevant new 

information would be analyzed at that 

time. In these cases, focusing on these 

action-specific consultations would 

allow the affected agencies to direct 

their limited resources to those actions 

that cause on-the-ground effects to listed 

species or designated critical habitats 

and ensure that the FS and the BLM 

fulfill their obligations under section 7, 

while avoiding unnecessary reinitiation 

at the plan level. 

For example, if new information 

revealed a higher density of a listed 

species in a plan area than was known 

during the consultation on the land 

management plan, that new information 

would be considered and incorporated 

in future consultations on specific 

authorized actions that may affect that 

species and/or its critical habitat. As 

another example, if, after completion of 

consultation on a land management 

plan, it was learned that a technique or 

practice that was anticipated to be used 

during subsequent projects is reasonably 

certain to have a greater impact on the 

environment than that analyzed in the 

consultation on the land management 

plan, that new information would also 

be considered and incorporated in 

future consultations on specific 

authorized actions that may affect listed 

species and/or critical habitat. Each 

consultation builds on past 

consultations no matter whether the 

action being consulted on relates to a 

plan or to a specific action. 

At the early stage and broad scale of 

plan consultation, the agencies lack 

specific information on whether and 

how actual projects and activities will 

occur. As discussed, plans are 

programmatic documents that set broad 

goals and guidelines for land 

management, but typically do not 

authorize ground-disturbing activities. 

See Ohio Forestry, 523 U.S. at 733–34. 

The number, type, timing, location, and 

other details for any activities that may 

occur in the plan area mostly are 

unknown to the action and consulting 

agencies at the time of consultation on 

a plan. 

By contrast, in the context of project 

consultations, the consulting agency 

knows specifically where and when the 

actions are to occur and the details 

about the types of activities proposed 

that were unknown at the time of the 

consultation on the plan. Moreover, as 

part of the environmental baseline, the 

consulting agency knows how other 

Federal, State, and private actions have 

affected the species and its critical 

habitat and analyzes those impacts 

during the project consultations. See 50 

CFR 402.02. Significantly, the project 

consultations are not narrowly limited 

to the effects of the individual action on 

the species or its critical habitat but 

include ‘‘all consequences to listed 

species or critical habitat that are caused 

by the proposed action, including the 

consequences of other activities that are 

caused by the proposed action [that] 

. . . would not occur but for the 

proposed action and it is reasonably 

certain to occur.’’ Id. § 402.02. These 

include effects that may occur later in 

time or outside the immediate area 

involved in the action. Id.; see also 

§ 402.17. Thus, each section 7 

consultation builds on the consultations 

for previous actions. 

This proposed revision to the 

regulations would not change the 

approach for subsequent consultations 

on specific authorized actions. During 

consultation, the Services and the action 

agency are required to use the best 

scientific and commercial data 

available, and this requirement 

necessarily encompasses considering 

new relevant information. 


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Proposed Regulatory Revisions 

Concerning Permanent Rulemaking as 

to National Forest System Lands 

The proposed revisions would remove 

the existing regulation’s timing 

limitations concerning National Forest 

System lands. To be sure, the 2018 Act’s 

instructions will remain in force for the 

time specified by the statute itself. But 

while Congress’ legislative solution has 

proven to be protective of species’ 

interests and workable for all of the 

agencies involved, it is only a temporary 

fix. Therefore, we have decided to 

invoke our general authority under 

section 7 concerning inter-agency 

consultation and issue permanent 

consultation instructions for FS 

planning efforts, just as we did for the 

BLM in 2019. 

As previously noted, in 2018 Congress 

statutorily intervened to temporarily 

resolve the effects of the Cottonwood 

ruling regarding ESA reinitiation 

requirements following critical habitat 

designations. The Omnibus Act created 

a temporary, safe harbor exempting the 

FS from reinitiating consultation for 

approved land management plans when 

a new species is listed or new critical 

habitat designation occurs. The 

Omnibus Act also established a 

permanent exemption from reinitiation 

for certain lands managed by the BLM. 

To recognize these instructions, the 

Services amended the reinitiation 

regulations at 50 CFR 402.16 to 

incorporate the Omnibus Act’s 

instructions that reinitiation of 

consultation shall not be required for 

land management plans upon listing of 

a new species or designation of new 

critical habitat, subject to the time 

limitations on this safe-harbor relief that 

were specified in the Omnibus Act (84 

FR 45017, August 27, 2019). The 

regulatory provisions applicable to 

National Forest System lands reflected 

the Omnibus Act’s rolling sunset of the 

safe-harbor exemptions from reinitiation 

of consultation. For a National Forest 

System plan that is outside the time 

limitations that apply to the relief 

afforded by the Omnibus Act, 

reinitiation of consultation is governed 

by standard ESA statutory and 

regulatory requirements and is not 

subject to the safe harbor afforded by the 

Act. 

While the Omnibus Act set specific 

temporal timeframes for its temporary 

safe-harbor exemption of NFS lands, the 

Services retain their general ESA section 

7 authority to establish procedures 

governing inter-agency cooperation. 

Congress’ negotiated outcome of a 

temporary safe-harbor solution to the 

problems created by Cottonwood leaves 

intact the Services’ authority to 

establish a permanent administrative 

remedy to such problems. 

First, the ESA sets forth a general duty 

to consult on agency action and broadly 

authorizes the Services to determine the 

manner in which that duty is carried 

out. See Babbitt v. Sweet Home Chapter 

of Communities for a Greater Oregon, 

515 U.S. 687, 708 (1995) (‘‘When it 

enacted the ESA, Congress delegated 

broad administrative and interpretive 

power to the Secretary.’’); 16 U.S.C. 

1533(b)(8) (authorizing ‘‘publication in 

the Federal Register of any proposed or 

final regulation which is necessary or 

appropriate to carry out the purposes of 

this Act’’). We also note that while 

section 7 was enacted in 1973 and 

initial ESA regulations were issued in 

1978, no reinitiation regulation was 

issued until 1986. Agencies routinely 

revisit their regulations seeking 

improvement and resolving ambiguities. 

See Nat’l Cable & Telecomm. Ass’n v. 

Brand X internet Servs., 545 U.S. 967, 

982–83 (2005). The Services’ authority 

to clarify and adjust the consultation 

procedures is well-supported in the 

ESA’s text and case law and is necessary 

to ensure the ESA’s proper 

administration. A permanent solution to 

resolve conflicting judicial 

interpretations of administrative 

regulations is entirely appropriate and 

within the Service’s authority. 

Second, the fact that Congress already 

has enacted a narrow, temporary fix 

does not preclude a permanent 

administrative solution. Nothing in the 

Omnibus Act’s text suggests a broad 

preemptive effect as to the Services’ 

general rulemaking authority. More 

specifically, while 16 U.S.C. 

1604(d)(2)(B) provides that the 

protection afforded by subparagraph (A) 

‘‘shall not apply’’ if certain temporal 

limits have been exceeded, 

subparagraph (A) provides that 

‘‘notwithstanding any other provision of 

law, the Secretary shall not be required 

to engage in consultation under this 

section or any other provision of law 

(including section 7 of Public Law 93– 

205 (16 U.S.C. 1536) and § 402.16 of 

title 50, Code of Federal Regulations (or 

a successor regulation)) with respect to’’ 

species listings and critical habitat 

designations. That ‘‘notwithstanding 

any other provision of law’’ provision 

does not change the meaning of the 

underlying law, and therefore does not 

disturb the preexisting ESA authorities 

outside its specific instructions. The 

Omnibus Act’s ‘‘notwithstanding’’ 

language disavows other provisions of 

law to create an independent, selfexecuting limitation that is selfcontained and not preemptive of the 

Service’s general authority under the 

ESA. The Act’s ‘‘notwithstanding’’ 

language signifies that no matter how a 

court may read the ESA or section 7 

requirements in general, no consultation 

is required on forest plans in the 

circumstances specifically addressed by 

the legislation. The Act therefore does 

not preclude the broader administrative 

adjustment of the underlying 

regulations proposed here, particularly 

given the sweeping delegation of 

rulemaking authority that the ESA 

affords to the Services as a general 

matter. See Sweet Home Chapter of 

Communities for a Greater Oregon, 515 

U.S. at 708 (‘‘When Congress has 

entrusted the Secretary with broad 

discretion, we are especially reluctant to 

substitute our views of wise policy for 

his.’’). 

Viewing the Omnibus Act through the 

familiar rules of statutory construction, 

it is clear that nothing is to be added to 

what the Omnibus Act’s text states or 

reasonably implies (casus omissus pro 

omisso habendus est). That is, a matter 

not covered is to be treated as not 

covered. As the Fifth Circuit said with 

respect to similar safe-harbor 

amendments to the Migratory Bird 

Treaty Act, ‘‘[w]hether Congress 

deliberately avoided more broadly 

changing the [statute] or simply chose to 

address a discrete problem, the most 

that can be said is that Congress did no 

more than the plain text of the 

amendment means.’’ United States v. 

Citgo, 801 F.3d 477, 491 (5th Cir. 2015); 

see id. (‘‘A single carve-out from the law 

cannot mean that the entire coverage of 

the MBTA was implicitly and hugely 

expanded.’’). 

Third, a permanent resolution also 

aligns with the government’s 

longstanding position that the duty to 

consult under section 7 is limited to 

affirmative agency actions and is not 

applicable to completed actions or 

agency inaction. The United States’ 

2016 Petition for Certiorari in 

Cottonwood clearly and unequivocally 

stated that ‘‘the Ninth Circuit’s holding 

that federal agencies must reinitiate 

consultation pursuant to section 7 of the 

ESA on a completed agency action at 

the programmatic level because the 

agency retains discretion to authorize 

site-specific projects governed by the 

programmatic action has no basis in the 

ESA or its implementing regulations.’’ 

Petition for Writ of Certiorari, United 

States Forest Service v. Cottonwood 

Environmental Law Center, No. 15–1387 

(June 2016). As previously noted, unless 

expressly stated otherwise, completed 

land management plans do not result in 

any immediate on-the-ground effects, 

and all relevant information is 


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considered during the separate section 7 

consultations that occur for subsequent 

project activities if those actions may 

affect listed species or critical habitat. 

The Forest Service’s current planning 

regulations confirm that ‘‘[a] plan does 

not authorize projects or activities or 

commit the Forest Service to take 

action.’’ 36 CFR 219.2(b)(2). 

Further, plan level consultation will 

of course continue to occur when the FS 

proposes to amend or revise a plan. 

Cyclical or periodic consultation aligns 

with other Ninth Circuit caselaw such 

as California Sportfishing Protection 

Alliance v. FERC, 472 F.3d 593, 595, 

598 (9th Cir. 2006), where the Circuit 

reviewed a challenge to the Federal 

Energy Regulatory Commission’s 

decision not to initiate consultation over 

the ongoing operation of a private 

hydroelectric plant operated under a 30- 

year license. In that case, FERC had the 

discretion to institute proceedings to 

amend an existing license, but the court 

emphasized, that ‘‘[t]he ESA and the 

applicable regulations . . . mandate 

consultation with [the consulting 

agency] only before an agency takes 

some affirmative agency action, such as 

issuing a license.’’ The court concluded 

that ‘‘the agency action of granting a 

permit is complete,’’ and that the mere 

unexercised discretion to modify the 

license for the benefit of listed species 

did not constitute ‘‘action’’ triggering a 

duty to initiate consultation. 

A permanent rule addressing 

programmatic plan consultation will 

promote predictability for agencies and 

the public and allow the FS and BLM 

to efficiently accomplish their species 

conservation objectives and land 

management missions. 

Public Comments 

The proposed amendments would 

adjust reinitiation practices addressing 

new information supplementing the 

Services’ rulemaking governing 

reinitiation for critical habitat 

designations and species listings which 

was the subject of both legislation and 

administrative rulemaking. These 

proposed procedural adjustments 

provide clarity and transparency about 

how the Secretaries intend to exercise 

their discretion regarding evaluation of 

new information concerning land 

management plans under section 7(a)(2) 

of the ESA. As the ESA does not provide 

a specific public comment period for 

issuance of inter-agency consultation 

regulations, generally speaking, any 

otherwise applicable notice requirement 

will be satisfied if it affords interested 

persons a reasonable and meaningful 

opportunity to participate in the 

rulemaking process. The 30-day 

comment period provides such an 

opportunity given the proposed rule’s 

limited scope and the other recent 

rulemaking pertaining to reinitiation 

practices. 

You may submit your comments and 

materials concerning the proposed rule 

by one of the methods listed in 

ADDRESSES. Comments must be 

submitted to http://www.regulations.gov 

before 11:59 p.m. (Eastern Time) on the 

date specified in DATES. We will not 

consider mailed comments that are not 

postmarked by the date specified in 

DATES. 

We will post your entire comment— 

including your personal identifying 

information—on http://

www.regulations.gov. If you provide 

personal identifying information in your 

comment, you may request at the top of 

your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. Comments and 

materials we receive, as well as 

supporting documentation we used in 

preparing this proposed rule, will be 

available for public inspection on http:// 

www.regulations.gov. 

Required Determinations 

Regulatory Planning and Review— 

Executive Orders 12866 and 13563 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this proposed rule is significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. This proposed rule 

is consistent with Executive Order 

13563, and in particular with the 

requirement of retrospective analysis of 

existing rules, designed ‘‘to make the 

agency’s regulatory program more 

effective or less burdensome in 

achieving the regulatory objectives.’’ 

Executive Order 13771 

This proposed rule is an Executive 

Order 13771 ‘‘other’’ action. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency, or his designee, certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended the Regulatory Flexibility Act 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant economic impact on a 

substantial number of small entities. We 

certify that, if adopted as proposed, this 

proposed rule would not have a 

significant economic effect on a 

substantial number of small entities. 

Because this rulemaking action 

specifically affects only Federal 

agencies, no external entities, including 

any small businesses, small 

organizations, or small governments, 

will experience any economic impacts 

from this rule. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

(a) On the basis of information 

contained in the Regulatory Flexibility 

Act section above, this proposed rule 

would not ‘‘significantly or uniquely’’ 

affect small governments. This proposed 

rule applies exclusively to Federal 

agencies. We have determined and 

certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502, 

that this rule would not impose a cost 

of $100 million or more in any given 

year on local or State governments or 

private entities. A Small Government 

Agency Plan is not required. As 

explained above, small governments 

would not be affected because the 

proposed rule would not place 

additional requirements on any city, 

county, or other local municipalities. 


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(b) This proposed rule would not 

produce a Federal mandate on State, 

local, or Tribal governments or the 

private sector of $100 million or greater 

in any year; that is, this proposed rule 

is not a ‘‘significant regulatory action’’’ 

under the Unfunded Mandates Reform 

Act. This proposed rule would impose 

no obligations on State, local, or Tribal 

governments. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, this proposed rule would not 

have significant takings implications. 

This proposed rule would not pertain to 

‘‘taking’’ of private property interests, 

nor would it directly affect private 

property. A takings implication 

assessment is not required because this 

proposed rule (1) would not effectively 

compel a property owner to suffer a 

physical invasion of property and (2) 

would not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This proposed rule 

would not present a barrier to all 

reasonable and expected beneficial use 

of private property. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we have considered whether this 

proposed rule would have significant 

federalism effects and have determined 

that a federalism summary impact 

statement is not required. This proposed 

rule pertains only to factors concerning 

reinitiation of consultation for Federal 

agencies under the Endangered Species 

Act and would not have substantial 

direct effects on the States, on the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

Civil Justice Reform (E.O. 12988) 

This proposed rule would clarify 

responsibilities for reinitiation of 

consultation under the Endangered 

Species Act. This proposed rule would 

not unduly burden the judicial system 

and meets the applicable standards 

provided in sections 3(a) and 3(b)(2) of 

Executive Order 12988. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ the 

Department of the Interior’s manual at 

512 DM 2, and the Department of 

Commerce (DOC) Tribal Consultation 

and Coordination Policy (May 21, 2013), 

DOC Departmental Administrative 

Order (DAO) 218–8 (April 2012), and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we are considering 

possible effects of this proposed rule on 

federally recognized Indian Tribes. The 

Services have reached a preliminary 

conclusion that the proposed changes to 

these implementing regulations are 

general in nature and do not directly 

affect specific species or Tribal lands. 

These proposed regulations clarify the 

processes for reinitiation of consultation 

and directly affect only the Services and 

Federal land-managing agencies. 

Therefore, we conclude that these 

regulations do not have ‘‘Tribal 

implications’’ under section 1(a) of E.O. 

13175, and, formal government-togovernment consultation is not required 

by the Executive Order and related 

policies of the Departments of the 

Interior and Commerce. We will 

continue to collaborate with Tribes on 

issues related to federally listed species 

and their habitats and work with them 

as we implement the provisions of the 

Act. See Joint Secretarial Order 3206 

(‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’, June 

5, 1997). 

Paperwork Reduction Act 

This proposed rule does not contain 

any new collections of information that 

require approval by the OMB under the 

Paperwork Reduction Act. This 

proposed rule will not impose 

recordkeeping or reporting requirements 

on State, local, or Tribal governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We are analyzing this proposed 

regulation in accordance with the 

criteria of the National Environmental 

Policy Act (NEPA), the Department of 

the Interior regulations on 

Implementation of the National 

Environmental Policy Act (43 CFR 

46.10–46.450), the Department of the 

Interior Manual (516 DM 8), the NOAA 

Administrative Order 216–6A, and the 

NOAA Companion Manual (CM), 

‘‘Policy and Procedures for Compliance 

with the National Environmental Policy 

Act and Related Authorities’’ (effective 

January 13, 2017). 

As a result, we anticipate that the 

categorical exclusion found at 43 CFR 

46.210(i) applies to the proposed 

regulation changes. At 43 CFR 46.210(i), 

the Department of the Interior has found 

that the following categories of actions 

would not individually or cumulatively 

have a significant effect on the human 

environment and are, therefore, 

categorically excluded from the 

requirement for completion of an 

environmental assessment or 

environmental impact statement: 

‘‘Policies, directives, regulations, and 

guidelines: that are of an administrative, 

financial, legal, technical, or procedural 

nature.’’ NOAA’s NEPA procedures 

include a similar categorical exclusion 

for ‘‘preparation of policy directives, 

rules, regulations, and guidelines of an 

administrative, financial, legal, 

technical, or procedural nature.’’ 

(Categorical Exclusion G7, at CM 

Appendix E). 

We are continuing to consider the 

extent to which this proposed regulation 

may have a significant impact on the 

human environment or fall within one 

of the categorical exclusions. We invite 

the public to comment on these or any 

other aspects of NEPA compliance that 

may be needed for these revisions. We 

will comply with NEPA before 

finalizing this regulation. 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. The proposed revised 

regulations are not expected to affect 

energy supplies, distribution, and use, 

and the Administrator of OIRA has not 

otherwise designated it as a significant 

energy action. Accordingly, no 

Statement of Energy Effects is required. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you believe that we have not met 

these requirements, send us comments 

by one of the methods listed in 

ADDRESSES. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs of the rule that 

are not clearly written, which sections 

or sentences are too long, the sections 

where you believe lists or tables would 

be useful, etc. 


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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Proposed Rules 2379 

Authority 

We issue this proposed rule under the 

authority of the Endangered Species 

Act, as amended (16 U.S.C. 1531 et 

seq.). 

List of Subjects in 50 CFR Part 402 

Endangered and threatened species. 

Proposed Regulation Promulgation 

For the reasons set out in the 

preamble, we propose to amend subpart 

B of part 402, subchapter A of chapter 

IV, title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 402—INTERAGENCY 

COOPERATION—ENDANGERED 

SPECIES ACT OF 1973, AS AMENDED 

■ 1. The authority citation for part 402 

continues to read as follows: 

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

■ 2. Amend § 402.16 by revising 

paragraph (b) to read as follows: 

§ 402.16 Reinitiation of consultation. 

* * * * * 

(b) After an agency approves a land 

management plan prepared pursuant to 

43 U.S.C. 1712 or 16 U.S.C. 1604, the 

agency need not reinitiate consultation 

on that plan upon: 

(1) The listing of a new species or 

designation of new critical habitat, 

provided that any authorized actions 

that may affect the newly listed species 

or designated critical habitat will be 

addressed through a separate actionspecific consultation; or 

(2) The receipt of new information 

revealing effects of the action that may 

affect listed species or critical habitat in 

a manner or to an extent not previously 

considered, provided that any 

authorized actions for which the new 

information is relevant will be 

addressed through a separate actionspecific consultation. 

George Wallace, 

Assistant Secretary for Fish and Wildlife and 

Parks, Department of the Interior. 

Christopher Wayne Oliver, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service, National 

Oceanic and Atmospheric Administration. 

[FR Doc. 2021–00366 Filed 1–11–21; 8:45 am] 

BILLING CODE 4333–15–P 


khammond on DSKJM1Z7X2PROD with PROPOSALS