35178 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

terms of a cooperative agreement with 

the Service in accordance with section 

6(c) of the Act, who is designated by 

that agency for such purposes, may, 

when acting in the course of official 

duties, take those threatened species of 

wildlife that are covered by an approved 

cooperative agreement to carry out 

conservation programs. 

(c) Whenever a species-specific rule 

in §§ 17.40 through 17.48 applies to a 

threatened species, none of the 

provisions of paragraphs (a) and (b) of 

this section will apply. The speciesspecific rule will contain all the 

applicable prohibitions and exceptions. 

■ 3. Revise § 17.71 to read as follows: 

§ 17.71 Prohibitions. 

(a) Except as provided in a permit 

issued under this subpart, all of the 

provisions of § 17.61 shall apply to 

threatened species of plants that were 

added to the List of Endangered and 

Threatened Plants in § 17.12(h) on or 

prior to [EFFECTIVE DATE OF THE FINAL

RULE], with the following exception: 

Seeds of cultivated specimens of species 

treated as threatened shall be exempt 

from all the provisions of § 17.61, 

provided that a statement that the seeds 

are of ‘‘cultivated origin’’ accompanies 

the seeds or their container during the 

course of any activity otherwise subject 

to these regulations. 

(b) In addition to any provisions of 

this part 17, any employee or agent of 

the Service or of a State conservation 

agency that is operating a conservation 

program pursuant to the terms of a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act, who is designated by that agency 

for such purposes, may, when acting in 

the course of official duties, remove and 

reduce to possession from areas under 

Federal jurisdiction those threatened 

species of plants that are covered by an 

approved cooperative agreement to 

carry out conservation programs. 

(c) Whenever a species-specific rule 

in §§ 17.73 through 17.78 applies to a 

threatened species, the species-specific 

rule will contain all the applicable 

prohibitions and exceptions. 

Dated: July 18, 2018. 

Ryan K. Zinke, 

Secretary, Department of the Interior. 

[FR Doc. 2018–15811 Filed 7–24–18; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 402 

[Docket No. FWS–HQ–ES–2018–0009; 

FXES11140900000–189–FF09E300000; 

Docket No. 180207140–8140–01; 

4500090023] 

RIN 1018–BC87; 0648–BH41 

Endangered and Threatened Wildlife 

and Plants; Revision of Regulations for 

Interagency Cooperation 

AGENCY: U.S. Fish and Wildlife Service 

(FWS), Interior; National Marine 

Fisheries Service (NMFS), National 

Oceanic and Atmospheric 

Administration (NOAA), Commerce. 

ACTION: Proposed rule. 

SUMMARY: We, FWS and NMFS 

(collectively referred to as the 

‘‘Services’’ or ‘‘we’’), propose to amend 

portions of our regulations that 

implement section 7 of the Endangered 

Species Act of 1973, as amended. The 

Services are proposing these changes to 

improve and clarify the interagency 

consultation processes and make them 

more efficient and consistent. 

DATES: We will accept comments from 

all interested parties until September 

24, 2018. 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–2018–0009, 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 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–HQ–ES–2018– 

0009; U.S. Fish and Wildlife Service, 

MS: BPHC, 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 http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Request 

for Information below for more 

information). 

FOR FURTHER INFORMATION CONTACT: 

Craig Aubrey, U.S. Fish and Wildlife 

Service, Division of Environmental 

Review, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, telephone 

703/358–2442; or Cathy Tortorici, ESA 

Interagency Cooperation Division, 

Office of Protected Resources, 1315 

East-West Highway, Silver Spring, MD 

20910, telephone 301/427–8495. 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 will seek 

to conserve threatened and endangered 

species, and use its authorities in 

furtherance of the purposes of the Act. 

The Secretaries of the Interior and 

Commerce share responsibilities for 

implementing most of the provisions of 

the Act. Generally, marine species are 

under the jurisdiction of the Secretary of 

Commerce, and all other species are 

under the jurisdiction of the Secretary of 

the Interior. Authority to administer the 

Act has been delegated by the Secretary 

of the Interior to the Director of the U.S. 

Fish and Wildlife Service (FWS) and by 

the Secretary of Commerce to the 

Assistant Administrator for the National 

Marine Fisheries Service (NMFS). 

References in this document to ‘‘the 

Services’’ mean FWS and NMFS. 

There have been no comprehensive 

amendments to the Act since 1988, and 

no comprehensive revisions to the 

implementing regulations since 1986. In 

the years since those changes took 

place, much has happened: The 

Services have gained considerable 

experience in implementing the Act, as 

have other Federal agencies, States, and 

property owners; there have been 

numerous court decisions regarding 

almost every provision of the Act and its 

implementing regulations; the 

Government Accountability Office has 

completed reviews of the Act’s 

implementation; there have been many 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35179 

scientific reviews, including review by 

the National Research Council; multiple 

administrations have adopted various 

policy initiatives; and nongovernmental entities have issued 

reports and recommendations. 

Title 50, part 402, 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 (the 

‘‘Secretaries’’), 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. These 

proposed regulatory amendments are 

intended to address the Services’ 

collective experience of more than 40 

years implementing the Act and several 

court decisions. 

In carrying out Executive Order 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda,’’ the Department of the 

Interior (DOI) published a document 

with the title ‘‘Regulatory Reform’’ in 

the Federal Register of June 22, 2017 

(82 FR 28429). The document requested 

public comment on how DOI can 

improve implementation of regulatory 

reform initiatives and policies and 

identify regulations for repeal, 

replacement, or modification. This 

proposed rule addresses some of the 

comments that DOI has received in 

response to the regulatory reform 

docket. 

As part of implementing E.O. 13777, 

NOAA published a notice entitled, 

‘‘Streamlining Regulatory Processes and 

Reducing Regulatory Burden’’ (82 FR 

31576, July 7, 2017). The notice 

requested public comments on how 

NOAA could continue to improve the 

efficiency and effectiveness of current 

regulations and regulatory processes. 

This proposed rule addresses some of 

the comments NOAA received from the 

public. 

This proposed rule is one of three 

related proposed rules that are 

publishing in today’s Federal Register. 

All of these documents propose 

revisions to various regulations that 

implement the Act. Beyond the specific 

revisions to the regulations highlighted 

in this proposed rule, the Services are 

comprehensively reconsidering the 

processes and interpretations of 

statutory language set out in part 402. 

Thus, this rulemaking should be 

considered as applying to all of part 

402, and as part of the rulemaking 

initiated today, the Services will 

consider whether additional 

modifications to the interagency 

cooperation regulations would improve, 

clarify, or streamline the administration 

of the Act. We seek public comments 

recommending, opposing, or providing 

feedback on specific changes to any 

provisions in part 402 of the regulations, 

including but not limited to revising or 

adopting as regulations existing 

practices or policies, or interpreting 

terms or phrases from the Act. Based on 

comments received and on our 

experience in administering the Act, the 

final rule may include revisions to any 

provisions in part 402 that are a logical 

outgrowth of this proposed rule, 

consistent with the Administrative 

Procedure Act. 

In proposing the specific changes to 

the regulations in this rule, and setting 

out the accompanying clarifying 

discussion in this preamble, the 

Services are proposing prospective 

standards only. Nothing in these 

proposed revisions to the regulations is 

intended to require that any previous 

consultations under section 7(a)(2) of 

the Act be reevaluated on the basis of 

the final rule at such time that the final 

rule becomes effective. 

The Services anticipate that the 

proposed changes, if finalized, will 

improve and clarify interagency 

consultation, and make it more efficient 

and consistent, without compromising 

conservation of listed species. Many of 

the changes should help reduce the 

costs of consultation. For example, 

clarifying the definition of ‘‘effects of 

the action’’ should decrease 

consultation timeframes (and costs) by 

eliminating confusion regarding 

application of terms in the existing 

definition, which has resulted in time 

being spent determining how to 

categorize an effect, rather than simply 

determining what the effects are 

regardless of category. As another 

example, codifying alternative 

consultation methods and the ability to 

adopt portions of Federal agencies’ 

documents should reduce overall 

consultation times and costs. Increased 

use of programmatic consultations will 

reduce the number of single, project-byproject consultations, streamline the 

consultation process, and increase 

predictability and consistency for action 

agencies. Eliminating the need to 

reinitiate consultation in certain 

situations will avoid impractical and 

disruptive burdens (and costs), without 

compromising conservation of listed 

species. We seek comment on (1) the 

extent to which the changes outlined in 

this proposed rule will affect timeframes 

and resources needed to conduct 

consultation and (2) anticipated cost 

savings resulting from the changes. 

While not reflected in any proposed 

changes to our regulations at this time, 

we also seek comment on the merit, 

authority, and means for the Services to 

conduct a single consultation, resulting 

in a single biological opinion, for 

Federal agency actions affecting species 

that are under the jurisdiction of both 

FWS and NMFS. 

Proposed Changes to 50 CFR Part 402 

Section 402.02 Definitions 

This section sets out definitions of 

terms that are used throughout these 

proposed regulations. Some of these 

terms are further discussed as they 

pertain to the consultation procedures 

in appropriate, subsequent sections. 

Below we discuss those definitions that 

would be revised or added by these 

proposed regulations. 

Definition of Destruction or Adverse 

Modification 

We propose to revise the definition of 

‘‘destruction or adverse modification’’ 

by adding the phrase ‘‘as a whole’’ to 

the first sentence and removing the 

second sentence of the current 

definition. The Act requires Federal 

agencies, in consultation with and with 

the assistance of the Secretaries, to 

insure that their actions are 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. In 1986, the Services 

established a definition for ‘‘destruction 

or adverse modification’’ (§ 402.02) that 

was found to be invalid by the U.S. 

Court of Appeals for the Fifth (2001) 

and Ninth (2004) Circuits. In 2016, we 

revised the definition, in part in 

response to these court rulings. We now 

propose to further clarify the definition, 

removing language that is redundant 

and has caused confusion about the 

meaning of the regulation. 

Background of the Definition of 

‘‘Destruction or Adverse Modification’’ 

In 1978, the Services promulgated 

regulations governing interagency 

cooperation under section 7 of the Act. 

(50 CFR part 402) (43 FR 870; Jan. 4, 

1978). These regulations provided a 

definition for ‘‘destruction or adverse 

modification’’ of critical habitat, which 

was later updated in 1986 to conform 

with amendments made to the Act. The 

1986 regulations defined ‘‘destruction or 

adverse modification’’ as: ‘‘a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for both the survival and recovery of a 


daltland on DSKBBV9HB2PROD with PROPOSALS
35180 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

listed species. Such alterations include, 

but are not limited to, alterations 

adversely modifying any of those 

physical or biological features that were 

the basis for determining the habitat to 

be critical.’’ (50 CFR 402.02) (51 FR 

19926; June 3, 1986). The preamble to 

the 1986 regulation contained relatively 

little discussion on the concept of 

‘‘destruction or adverse modification of 

critical habitat.’’ 

In 2001, the Fifth Circuit Court of 

Appeals reviewed the 1986 regulatory 

definition of destruction or adverse 

modification and found it exceeded the 

Service’s discretion. Sierra Club v. U.S. 

Fish and Wildlife Service, 245 F.3d 434 

(5th Cir. 2001). Specifically, the court 

found the regulatory definition to be 

invalid on its face and inconsistent with 

the Act. The court reasoned that the 

regulatory definition set too high a 

threshold for triggering adverse 

modification by its requirement that the 

value of critical habitat for both survival 

and recovery be appreciably diminished 

before adverse modification would be 

the appropriate conclusion. The court 

determined that the regulatory 

definition actually established a 

standard that would only trigger an 

adverse modification determination if 

the ‘‘survival’’ of the species was 

appreciably diminished, while ignoring 

the role critical habitat plays in the 

recovery of species. Citing legislative 

history and the Act itself, the court was 

persuaded that Congress intended the 

Act to ‘‘enable listed species not merely 

to survive, but to recover from their 

endangered or threatened status.’’ Sierra 

Club, 245 F.3d at 438. Noting the Act 

defines critical habitat as areas that are 

‘‘essential to the conservation’’ of listed 

species, the court determined that 

‘‘conservation’’ is a ‘‘much broader 

concept than mere survival.’’ Sierra 

Club, 245 F.3d at 441. The court 

concluded that the Act’s definition of 

conservation ‘‘speaks to the recovery’’ of 

listed species. 

In 2004, the Ninth Circuit Court of 

Appeals also reviewed the 1986 

regulatory definition of destruction or 

adverse modification. Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004). 

That court agreed with the Fifth 

Circuit’s determination that the 

regulation was facially invalid. The 

Ninth Circuit, following similar 

reasoning set out in Sierra Club, 

determined that Congress viewed 

conservation and survival as ‘‘distinct, 

though complementary, goals and the 

requirement to preserve critical habitat 

is designed to promote both 

conservation and survival.’’ 

Specifically, the court found that ‘‘the 

purpose of establishing ‘critical habitat’ 

is for the government to [designate 

habitat] that is not only necessary for 

the species’ survival but also essential 

for the species’ recovery.’’ Gifford 

Pinchot Task Force, 378 F.3d at 1070. 

After the Ninth Circuit’s decision, the 

Services each issued guidance to 

discontinue the use of the 1986 adverse 

modification regulation (FWS Acting 

Director Marshall Jones Memorandum 

to Regional Directors, ‘‘Application of 

the ‘Destruction or Adverse 

Modification’ Standard under Section 

7(a)(2) of the Endangered Species Act 

2004’’ (FWS 2004); NMFS Assistant 

Administrator William T. Hogarth 

Memorandum to Regional 

Administrators, ‘‘Application of the 

‘Destruction or Adverse Modification’ 

Standard under Section 7(a)(2) of the 

Endangered Species Act, 2005’’ (NMFS 

2005)). Specifically, in evaluating a 

proposed action’s effects on critical 

habitat as part of interagency 

consultation, the Services began 

applying the definition of 

‘‘conservation’’ as set out in the Act, 

which defines conservation (and 

conserve and conserving) to mean ‘‘to 

use and the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

[Act] are no longer necessary.’’ (16 

U.S.C. 1532(3)) (i.e., the species is 

recovered). See 50 CFR 424.02. 

Accordingly, after examining the status 

of critical habitat, the environmental 

baseline, and the effects of the proposed 

action, the Services began analyzing 

whether the implementation of the 

proposed action, together with any 

cumulative effects, would result in the 

critical habitat remaining ‘‘functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species.’’ See FWS 2004; NMFS 2005. 

In 2016, we promulgated regulations 

to revise the regulatory definition of 

‘‘destruction or adverse modification.’’ 

We adopted the following definition: 

‘‘Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for the conservation of a 

listed species. Such alterations may 

include, but are not limited to, those 

that alter the physical or biological 

features essential to the conservation of 

a species or that preclude or 

significantly delay development of such 

features.’’ (81 FR 7214, February 11, 

2016). 

We explained in the 2016 rule that we 

did not intend for it to alter the section 

7(a)(2) consultation process from 

existing practice and noted that 

previously completed biological 

opinions did not need to be reevaluated 

in light of that rule. The 2016 definition, 

particularly the first sentence, sought to 

clarify and preserve the existing 

distinction between the definitions of 

‘‘destruction or adverse modification’’ 

and ‘‘jeopardize the continued existence 

of’’ by focusing the analysis for 

‘‘destruction or adverse modification’’ 

on how the effects of a proposed action 

affect the value of critical habitat as a 

whole for the conservation of threatened 

or endangered species. The focus of the 

‘‘jeopardize the continued existence of’’ 

definition, on the other hand, is whether 

a proposed action appreciably reduces 

the likelihood of survival and recovery 

by reducing a species’ reproduction, 

numbers, and distribution. 

The 2016 final rule’s definition 

reflected several changes from what the 

Services proposed in 2014. The changes 

to the first sentence were relatively 

minor. In the 2014 proposed rule, the 

first sentence read: ‘‘‘Destruction or 

adverse modification’ means a direct or 

indirect alteration that appreciably 

diminishes the conservation value of 

critical habitat for listed species.’’ (79 

FR 27060, 27066; May 12, 2014). In the 

final rule, we made a minor clarification 

of the first sentence, by changing 

‘‘conservation value of critical habitat 

for listed species’’ to ‘‘the value of 

critical habitat for the conservation of a 

listed species.’’ (81 FR at 7226, February 

11, 2016). 

Many commenters of the 2014 

proposed rule expressed confusion or 

concern regarding the scale at which the 

determination of destruction or adverse 

modification of critical habitat is made. 

Some of these commenters thought that 

the language, ‘‘critical habitat, as a 

whole,’’ should be included in the 

definition and not just the preamble. 

While the Services declined to include 

the phrase ‘‘as a whole’’ in the 2016 

final definition, we explained in the 

preamble that we make our 

determination on the value of the 

critical habitat and its role in the 

conservation of the species, and that the 

existing consultation process already 

ensures that the determination is made 

at the appropriate scale. We also 

explained that, while an action may 

result in adverse effects to critical 

habitat within the action area, those 

effects may not necessarily rise to the 

level of destruction or adverse 

modification to the designated critical 

habitat. In adding the phrase ‘‘as a 

whole’’ to the proposed revised 

definition, we intend to clearly indicate 

that the final destruction or adverse 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35181 

modification determination is made at 

the scale of the entire critical habitat 

designation. Smaller scales can be very 

important analysis tools in determining 

how the impacts may translate to the 

entire designated critical habitat, but the 

final determination is not made at the 

action area, critical habitat unit, or other 

less extensive scale. 

The analysis thus places an emphasis 

on the value of the designated critical 

habitat as a whole for the conservation 

of a species, in light of the role the 

action area serves with regard to the 

function of the overall designation. Just 

as the determination of jeopardy under 

section 7(a)(2) of the Act is made at the 

scale of the entire listed entity, a 

determination of destruction or adverse 

modification is made at the scale of the 

entire critical habitat designation. Even 

if a particular project would cause 

adverse effects to a portion of critical 

habitat, the Services must place those 

impacts in context of the designation to 

determine if the overall value of the 

critical habitat is likely to be reduced. 

This could occur where, for example, a 

smaller affected area of habitat is 

particularly important in its ability to 

support the conservation of a species 

(e.g., a primary breeding site). Thus, the 

size or proportion of the affected area is 

not determinative; impacts to a smaller 

area may in some cases result in a 

determination of destruction or adverse 

modification, while impacts to a large 

geographic area will not always result in 

such a finding. Therefore, we are 

proposing to revise the first sentence of 

the definition by adding the phrase ‘‘as 

a whole’’ to clarify the appropriate scale 

of the destruction or adverse 

modification determination. 

The second sentence proved more 

controversial. As proposed, the second 

sentence of the definition read: ‘‘Such 

alterations may include, but are not 

limited to, effects that preclude or 

significantly delay the development of 

the physical or biological features that 

support the life-history needs of the 

species for recovery.’’ (79 FR at 27066, 

May 12, 2014). Many commenters 

argued that the proposed second 

sentence established a significant 

change in practice by appearing to focus 

the definition on the preclusion or delay 

of the development of physical or 

biological features, to the exclusion of 

the alteration of existing features. A 

number of commenters believed these 

concepts were vague, undefined, and 

allowed for arbitrary determinations. 

One commenter asserted that focusing 

on effects that preclude or significantly 

delay development of features was an 

expansion of authority that conflicted 

with E.O. 13604 (Improving 

Performance of Federal Permitting and 

Review of Infrastructure Projects). 

In an attempt to clarify our intent, in 

finalizing the rule, we revised the 

proposed second sentence to add 

reference to alterations affecting the 

physical or biological features essential 

to the conservation of a species, as well 

as those that preclude or significantly 

delay development of such features: 

‘‘Such alterations may include, but are 

not limited to, those that alter the 

physical or biological features essential 

to the conservation of a species or that 

preclude or significantly delay 

development of such features.’’ (81 FR 

at 7226, February 11, 2016). 

The intended purpose of the language 

about precluding or delaying 

‘‘development of such features’’ was to 

acknowledge ‘‘that some important 

physical or biological features may not 

be present or are present in a suboptimal quantity or quality. This could 

occur where, for example, the habitat 

has been degraded by human activity or 

is part of an ecosystem adapted to a 

particular natural disturbance (e.g., fire 

or flooding), which does not constantly 

occur but is likely to recur.’’ (79 FR at 

27061, May 12, 2014). Our intent was 

for such determinations not to be based 

upon speculation. 

However, the second sentence of the 

definition in the 2016 final rule has 

continued to cause controversy among 

the public and many stakeholders. 

In this proposed rule, we seek to 

streamline and simplify the definition of 

‘‘destruction or adverse modification’’ 

by removing the second sentence 

because the second sentence is 

unnecessary and has caused confusion. 

The second sentence of the definition 

attempted to elaborate upon meanings 

that are included within the first 

sentence, without attempting to exhaust 

them (hence, the use of the phrase ‘‘may 

include, but are not limited to’’). In all 

cases, the analysis of destruction or 

adverse modification must address 

whether the proposed action will result 

in an ‘‘alteration that appreciably 

diminishes the value of critical habitat 

as a whole for the conservation of a 

listed species.’’ 

Application of the Revised Definition 

As with the 2016 rule, we do not 

intend our proposed change to alter 

existing section 7(a)(2) consultation 

practice. The bar for whether a proposed 

action is likely to result in destruction 

or adverse modification of critical 

habitat is neither raised nor lowered by 

this proposed rule, nor is the scope of 

analysis altered with respect to 

evaluating the effects of a proposed 

action on critical habitat. This proposed 

definition retains the key, operative first 

sentence of the 2016 regulation while 

adding the clarifying additional phrase 

of ‘‘as a whole’’ (as discussed above). 

Further guidance on how to apply the 

language in that sentence can be found 

in the 2016 rule. 

It is not necessary, nor possible, for a 

concise regulatory definition to list 

every way in which alterations may 

affect the value of critical habitat for the 

conservation of a species. The value of 

critical habitat for the conservation of a 

listed species is described primarily 

through the critical habitat designation 

itself. That designation, in accordance 

with the Act, will identify, in occupied 

habitat, ‘‘the specific areas within the 

geographical area occupied by the 

species . . . on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection.’’ (16 U.S.C. 1532(5)(a)(i)). 

Accordingly, the Act already makes 

clear that, in occupied habitat, the value 

of critical habitat for the conservation of 

the species is directly associated with 

designated physical or biological 

features. Thus, destruction or adverse 

modification determinations may be 

based on alterations that affect such 

features, without needing to specify that 

fact in the regulatory definition. The Act 

and regulations also already state that 

unoccupied areas may be designated to 

the extent the Service determines they 

are ‘‘essential for the conservation of the 

species.’’ (16 U.S.C. 1532(5)(a)(ii)). 

Determining whether alterations in 

unoccupied critical habitat may 

constitute destruction or adverse 

modification will therefore need to 

consider the reasons for which the 

Service determined that such 

unoccupied habitat is ‘‘essential to the 

conservation of the species.’’ 

The Services have not changed their 

underlying view that it may be 

necessary and consistent with the Act in 

some circumstances for the destruction 

and adverse modification analysis to 

consider how alterations to critical 

habitat could affect the ability of the 

habitat to develop or support features 

essential to the conservation of the 

species. For example, in some 

circumstances, recovery of the species 

may depend upon retaining the ability 

of a designated area to maintain or recreate the essential features, for instance 

through ecological succession, fluvial 

processes, active management, or other 

dynamic processes. This is a 

longstanding interpretation and agency 

practice, as reflected in the 2016 rule 

and in the 2004 and 2005 FWS and 

NMFS guidance documents regarding 


daltland on DSKBBV9HB2PROD with PROPOSALS
35182 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

application of the destruction or adverse 

modification standard. This 

longstanding interpretation has never 

been meant to assert authority beyond 

that provided by the Act, nor to allow 

the Services to designate critical habitat 

or make adverse modification findings 

based merely on speculation or desire 

about future changes to the critical 

habitat. As required by the Act, such 

determinations must rely on the best 

scientific and commercial data 

available. (16 U.S.C. 1536(a)(2)). 

In the proposed definition, 

‘‘appreciably diminish’’ remains a key 

concept. This phrase has been part of 

the regulatory definition of ‘‘destruction 

or adverse modification’’ since 1978, 

and neither it nor its interpretation 

would be altered by this proposed rule. 

As we noted in the 2016 rule, with 

respect to ‘‘diminish,’’ the inquiry 

begins with whether the relevant effects 

will reduce, lessen, or weaken the value 

of the critical habitat for the 

conservation of the species. If so, then 

the inquiry is whether that reduction or 

diminishment will be ‘‘appreciable’’ to 

the value of the critical habitat for the 

conservation of the species. 

As we also noted in 2016, the 

determination of ‘‘appreciably 

diminish’’ is made based upon the 

proposed action’s effect on the value of 

the entire critical habitat to the 

conservation of the species. That is, the 

question is whether the ‘‘effects of the 

action’’ will appreciably diminish the 

value of the critical habitat as a whole 

to the conservation of the species, not 

just in the area where the proposed 

action takes place. In this respect, 

‘‘appreciably diminish’’ is analogous to 

‘‘appreciably reduce’’ in the context of 

determining whether an action will 

‘‘jeopardize the continued existence’’ of 

a species, since that inquiry is similarly 

not merely addressing the effects within 

the action area, but rather is concerned 

with whether the effects ‘‘appreciably 

reduce’’ the likelihood of survival and 

recovery of the listed entity, the species. 

The 2016 rule discussed the reasons 

we concluded, and here continue to 

conclude, that the phrase ‘‘appreciably 

diminish’’ does not need to be modified. 

As we noted in 2016, the Services’ joint 

Consultation Handbook (FWS and 

NMFS, March 1998) uses the word 

‘‘considerably’’ to interpret this phrase. 

In the 2016 rule, we clarified that the 

phrase ‘‘appreciably diminish,’’ like the 

Consultation Handbook’s term 

‘‘considerably,’’ means ‘‘ ‘worthy of 

consideration’ and is another way of 

stating that we can recognize or grasp 

the quality, significance, magnitude, or 

worth of the reduction in the value of 

critical habitat.’’ (81 FR 7218, February 

11, 2016). 

We also explained in 2016 that it is 

not correct to conclude that every 

diminishment, however small, should 

constitute destruction or adverse 

modification. It was necessary to qualify 

the word ‘‘diminish’’ to exclude those 

adverse effects on critical habitat that 

are so minor in nature that they do not 

appreciably impact the value of 

designated critical habitat to the 

conservation of a listed species. 

We also note that the word 

‘‘appreciably’’ is used in both the 

Services’ definition of ‘‘jeopardize the 

continued existence of’’ (‘‘appreciably 

reduce’’) and ‘‘destruction or adverse 

modification’’ (‘‘appreciably diminish’’). 

The meaning of the word ‘‘appreciably’’ 

is similar in either context. In both 

contexts, it is appropriate for the 

Services to consider the biological 

significance of effects when conducting 

a section 7(a)(2) consultation. As 

required by the ESA, we conduct formal 

consultation, and evaluate in detail the 

potential for destruction or adverse 

modification of critical habitat (and/or 

whether a proposed action is likely to 

jeopardize the continued existence of a 

species) whenever there are likely to be 

adverse effects to critical habitat or a 

listed species. In each of these analyses, 

we must evaluate, based on the totality 

of the circumstances and the best 

available scientific information, the 

nature and magnitude of the proposed 

action’s effects, to determine whether 

such effects of the proposed action are 

consequential enough to rise to the level 

of ‘‘appreciably diminish’’ or 

‘‘appreciably reduce.’’ See, e.g., Oceana, 

Inc. v. Pritzker, 75 F. Supp. 3d 469, 483 

(D.D.C. 2014) (discussing and affirming 

a jeopardy analysis that considered 

whether a given reduction was 

‘‘meaningful from a biological 

perspective’’). Reductions in the 

reproduction, numbers, or distribution 

of a species that are inconsequential at 

the species level, or alterations to the 

features or the extent of designated 

critical habitat that constitute only an 

inconsequential impact on the 

conservation value of designated critical 

habitat as a whole, would not be 

considered to rise to the level of ‘‘reduce 

appreciably’’ or ‘‘appreciably diminish’’ 

within the meaning of the regulations. 

Nor do we interpret section 7(a)(2) and 

the regulations thereunder to require 

that each proposed action improve or 

increase the likelihood of survival and 

recovery of the species, or improve the 

conservation value of critical habitat. 

Section 7(a)(2) focuses on the 

‘‘continued existence’’ of the species 

and the ‘‘adverse’’ modification of 

critical habitat. 

It should also be noted that the 

analysis must always consider whether 

such impacts are ‘‘appreciable,’’ even 

where a species already faces severe 

threats prior to the action. It is 

sometimes mistakenly asserted that a 

species may already be in a status of 

being ‘‘in jeopardy,’’ ‘‘in peril,’’ or 

‘‘jeopardized’’ by baseline conditions, 

such that any additional adverse 

impacts must be found to meet the 

regulatory standards for ‘‘jeopardize the 

continued existence of’’ or ‘‘destruction 

or adverse modification.’’ See, e.g., Nat’l 

Wildlife Fed’n v. Nat’l Marine Fisheries 

Serv., 524 F.3d 917, 930 (9th Cir. 2008) 

(asserting that ‘‘where baseline 

conditions already jeopardize a species, 

an agency may not take action that 

deepens the jeopardy by causing 

additional harm’’); Turtle Island 

Restoration Network v. United States 

Dep’t of Commerce, 878 F.3d 725, 735 

(9th Cir. 2017) (‘‘Where a species is 

already in peril, an agency may not take 

an action that will cause an ‘active 

change of status’ for the worse.’’) 

(quoting Nat’l Wildlife Fed’n, 524 F.3d 

at 930). That approach is inconsistent 

with the statute and our regulations. 

The terms ‘‘jeopardize the continued 

existence of’’ and ‘‘destruction or 

adverse modification’’ are, in the plain 

language of section 7(a)(2), 

determinations that are made about the 

effects of Federal agency actions. They 

are not determinations made about the 

environmental baseline or about the preaction condition of the species. Under 

the ESA, a listed species will have the 

status of ‘‘threatened’’ or ‘‘endangered,’’ 

and all threatened and endangered 

species by definition face threats to their 

continued existence. See 16 U.S.C. 

§§ 1532(6), (20), 1533(a). But the ESA 

and our regulations do not use the terms 

‘‘in jeopardy,’’ ‘‘in peril,’’ or 

‘‘jeopardized’’ to describe the 

environmental baseline or the pre-action 

condition of a species; nor do the terms 

‘‘appreciably reduce’’ or ‘‘appreciably 

diminish’’ have a different meaning 

where a species already faces very 

serious threats. In each biological 

opinion, the determination regarding 

destruction or adverse modification is 

made by evaluating the effects of the 

proposed action on the species in light 

of the overall status of the species, the 

baseline conditions within the action 

area and any cumulative effects 

occurring within the action area. While 

we acknowledge that for a species with 

a particularly dire status, a smaller 

impact could cause an alteration that 

appreciably diminishes the conservation 

value of critical habitat or appreciably 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35183 

reduces the likelihood of survival and 

recovery of the species, there is no 

‘‘baseline jeopardy’’ status even for the 

most imperiled species. 

A related question that has arisen is 

whether the Services are required to 

identify a ‘‘tipping point’’ beyond which 

the species cannot recover in making 

section 7(a)(2) determinations. For 

example, the Ninth Circuit Court of 

Appeals has said that ‘‘when a proposed 

action will have significant negative 

effects on the species’ population or 

habitat, the duty to consider the 

recovery of the species necessarily 

includes the calculation of the species’ 

approximate tipping point.’’ Oceana, 

Inc. v. Nat’l Marine Fisheries Serv., 705 

F. App’x 577, 580 (9th Cir. 2017) (citing 

Nat’l Wildlife Fed’n v. Nat’l Marine 

Fisheries Serv., 524 F.3d 917 (9th Cir. 

2008)); see also Wild Fish Conservancy 

v. Salazar, 628 F.3d 513, 527 (9th Cir. 

2010) (overturning jeopardy analysis 

based on purported NMFS failure to 

determine ‘‘when the tipping point 

precluding recovery . . . is likely to be 

reached’’). Neither the Act nor our 

regulations state any requirement for the 

Services to identify a ‘‘tipping point’’ as 

a necessary prerequisite for making 

section 7(a)(2) determinations. Section 

7(a)(2) provides the Services with 

discretion as to how it will determine 

whether the statutory prohibition is 

exceeded. We have not interpreted that 

statutory language as requiring the 

identification of a tipping point. This 

interpretation is further supported by 

the fact that the state of science often 

does not allow the Services to identify 

a ‘‘tipping point’’ for many species. The 

Services have had success in the 

recovery of several listed species which, 

despite very low abundance, did not 

reach a ‘‘tipping point.’’ 

Definition of Director 

We propose to amend the current 

definition of ‘‘Director’’ to clarify and 

simplify it, in accordance with the Act 

and agency practice of FWS and NMFS. 

Definition of Effects of the Action 

We propose to revise the definition of 

‘‘effects of the action’’ in a manner that 

simplifies the definition. Confusion 

regarding application of terms has 

resulted in time being spent 

determining how to categorize an effect, 

rather than simply determining what the 

effects are regardless of category. By 

providing a simpler definition that 

applies to the entire range of potential 

effects, Federal agencies and the 

Services will be able to focus on better 

assessing the effects of the proposed 

action. In addition, we propose to make 

the definition of environmental baseline 

a stand-alone definition within § 402.02. 

Previously, this definition was 

articulated within the definition of 

effects of the proposed action. Finally, 

we have moved the instruction that the 

effects of the proposed action shall be 

added to the environmental baseline 

into the regulations guiding the 

Services’ responsibilities in formal 

consultation in § 402.14(g). 

A few aspects of the revised definition 

of effects of the action bear further 

discussion to understand our intent in 

the proposed revision. We collapsed the 

various concepts of direct and indirect 

effects, and the effects of interrelated 

and interdependent actions, into the 

new definition that the effects of the 

action include all effects caused by the 

proposed action. The revised definition 

notes that these effects include ‘‘the 

effects of other activities that are caused 

by the proposed action.’’ It includes a 

distinction between the word ‘‘action’’ 

which refers to the action proposed to 

be authorized, funded, or carried out, in 

whole or in part, by the Federal agency 

and brought in for consultation with the 

Services, and ‘‘activity’’ or ‘‘activities,’’ 

which refer to those activities that are 

caused by the proposed action but are 

not included in the proposed action. 

Under the current definition, these 

activities would have been considered 

under either ‘‘indirect effects’’ or 

‘‘interrelated’’ or ‘‘interdependent’’ 

activities. An effect or activity is caused 

by the proposed action when two tests 

are satisfied: First, the effect or activity 

would not occur but for the proposed 

action, and second, the effect or activity 

is reasonably certain to occur. 

Under the first of these two tests, if an 

effect or activity would occur regardless 

of whether the proposed action goes 

forward, then that effect or activity 

would not satisfy the ‘‘but for’’ test and 

would not be considered an effect of the 

action. The concepts of interrelated and 

interdependent actions in the existing 

regulations are now captured by the 

concept of effects of activities that are 

caused by the proposed action, but are 

not part of that proposed action. It has 

long been our practice that 

identification of direct and indirect 

effects as well as interrelated and 

interdependent activities is governed by 

the ‘‘but for’’ standard of causation. Our 

Consultation Handbook states . . .’’In 

determining whether the proposed 

action is reasonably likely to be the 

direct or indirect cause of incidental 

take, the Services use the simple 

causation principle: i.e., ‘‘but for’’ the 

implementation of the proposed 

action. . . .’’ (Consultation Handbook, 

page 4–47). A number of courts have 

also adopted that position. Sierra Club 

v. Bureau of Land Management, 786 

F.3d 1219, 1225 (9th Cir. 2015) (‘‘The 

test for interrelatedness or 

interdependentness is ‘but for’ 

causation’’) citing Sierra Club v. Marsh, 

816 F.2d 1376, 1387 (9th Cir. 1987). 

This standard, while applicable to 

analyzing the effects of the action under 

section 7(a)(2), is not necessarily 

appropriate for other provisions of the 

ESA; we therefore do not address in this 

rulemaking the causation standards 

applying to other provisions of the Act, 

such as whether a violation of section 

9(a)(1)(B) (the take prohibition) has 

resulted for purposes of a civil penalty 

or a criminal violation under the Act. 

The second of the two tests speaks to 

the certainty of whether the effect or 

activity will occur. The concept of 

reasonable certainty already exists in 

our section 7 regulations and currently 

is explicitly applied in the context of 

indirect effects, cumulative effects, and 

incidental take. We propose to increase 

consistency and avoid confusion and 

speculation by explicitly applying the 

concept to all effects of the proposed 

action (not just indirect) and also to 

those other activities previously 

identified as interrelated and 

interdependent. This concept applies 

equally to evaluating the beneficial 

effects of a proposed action (e.g., effects 

of any components proposed by the 

Federal agency to avoid, minimize, or 

offset the effects of the agency action, 

for example) and adverse effects of the 

proposed action. Our proposed revision 

applies the reasonably-certain-to-occur 

standard to the section 7 process in a 

consistent manner but does not change 

past practice on the evaluation of direct 

and indirect effects of actions. In 

practice, the Services have evaluated the 

direct effects of the action using the best 

available scientific and commercial 

information about the likelihood of an 

effect or activity and not on speculation 

about what effects might occur. As a 

result, we do not anticipate the revised 

language will change what types of 

effects or activities will be considered 

within our consultations; rather, we 

expect it to simplify and improve 

consistency in our effects analyses. For 

example, our prior discussion in our 

2015 rulemaking adopting revisions to 

the incidental take statement portions of 

our section 7 regulations is instructive 

in this regard: 

As a practical matter, application of the 

‘‘reasonable certainty’’ standard is done in 

the following sequential manner in light of 

the best available scientific and commercial 

data to determine if incidental take is 

anticipated: (1) A determination is made 

regarding whether a listed species is present 

within the area affected by the proposed 


daltland on DSKBBV9HB2PROD with PROPOSALS
35184 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

Federal action; (2) if so, then a determination 

is made regarding whether the listed species 

would be exposed to stressors caused by the 

proposed action (e.g., noise, light, ground 

disturbance); and (3) if so, a determination is 

made regarding whether the listed species’ 

biological response to that exposure 

corresponds to the statutory and regulatory 

definitions of take (i.e., kill, wound, capture, 

harm, etc.). Applied in this way, the 

‘‘reasonable certainty’’ standard does not 

require a guarantee that a take will result, 

rather, only that the Services establish a 

rational basis for a finding of take. While 

relying on the best available scientific and 

commercial data, the Services will 

necessarily apply their professional judgment 

in reaching these determinations and 

resolving uncertainties or information gaps. 

Application of the Services’ judgment in this 

manner is consistent with the ‘‘reasonable 

certainty’’ standard. (80 FR 26832, 26837; 

May 15, 2015). 

The preamble to the 1986 regulation 

implementing section 7 also discusses 

the Services’ interpretation of the phrase 

‘‘reasonably certain to occur.’’ (51 FR 

19926, 19932–19933; June 3, 1986— 

‘‘For State and private actions to be 

considered in the cumulative effects 

analysis, there must exist more than a 

mere possibility that the action may 

proceed. On the other hand, ‘‘reasonably 

certain to occur’’ does not mean that 

there is a guarantee that an action will 

occur.’’) 

It is important to note that both 

prongs of the causation standard must 

be met for the activity in question and 

the effects from that activity. So, for 

example, if an activity is not reasonably 

certain to occur, then the causation 

standard has not been met and neither 

the activity nor any effects from that 

activity are considered an effect of the 

proposed action. 

In addition, for activities that are 

caused by the proposed action, we have 

established at § 402.17 a standard and 

set of factors to consider in determining 

whether activities are reasonably certain 

to occur. We believe that the 

combination of requiring that an effect 

be both ‘‘but for’’ and ‘‘reasonably 

certain to occur’’ will reasonably define 

the reach of the effects analysis and 

address concerns about extending the 

analysis into an unreasonably wide 

arena. Finally, the proposed provision 

includes a reminder that the effects of 

the action may occur throughout the 

action area and on an ongoing, or even 

delayed, timeframe after completion of 

the action that was the subject of 

consultation. Thus, under the proposed 

rule, there would no longer be a need 

for a separate definition of ‘‘indirect 

effects,’’ since the intent of the new 

definition is that the effects covered by 

that term are still included. And 

similarly, the new definition should not, 

in practice, change the determination or 

scope of the ‘‘action area’’ in a 

consultation. 

As stated previously, the Services’ 

intent is to simplify and clarify the 

definition of effects of the action, 

without altering the scope of what 

constitutes an effect. We seek comment 

on (1) the extent to which the proposed 

revised definition simplifies and 

clarifies the definition of ‘‘effects of the 

action’’; (2) whether the proposed 

definition alters the scope of effects 

considered by the Services; (3) the 

extent to which the scope of the 

proposed revised definition is 

appropriate for the purposes of the Act; 

and (4) how the proposed revised 

definition may be improved. 

Definition of Environmental Baseline 

We are proposing a stand-alone 

definition for ‘‘environmental baseline’’ 

as referenced in the discussion above in 

the proposed revised definition for 

‘‘effects of the action.’’ The definition 

for environmental baseline retains its 

current wording. Moving it to a standalone definition clarifies that the 

environmental baseline is a separate 

consideration that sets the stage for 

analyzing the effects of the proposed 

action on the listed species and critical 

habitat within the action area by 

providing the foundation upon which to 

build the analysis of the effects of the 

action under consultation. The 

environmental baseline does not 

include the effects of the action under 

review in the consultation (See 

Consultation Handbook, at 4–22). 

The Services are seeking public 

comment on potential revisions to the 

definition of ‘‘environmental baseline’’ 

as it relates to ongoing Federal actions. 

It has sometimes been challenging for 

the Services and Federal agencies to 

determine the appropriate baseline for 

those consultations involving ongoing 

agency actions. The complexities 

presented in these consultations include 

issues such as: What constitutes an 

‘‘ongoing’’ action; if an ongoing action is 

changed, is the incremental change in 

the ongoing action the only focus of the 

consultation or is the entire action or 

some other subset reviewed; is the 

effects analysis different if the ongoing 

action has never been the subject of 

consultation as compared to if there is 

a current biological opinion for the 

ongoing action; if a change is made to 

an ongoing action that lessens, but does 

not eliminate, the harmful impact to 

listed species or critical habitat, is that 

by definition a ‘‘beneficial action’’; and 

can a ‘‘beneficial action’’ ever jeopardize 

listed species or destroy or adversely 

modify critical habitat. Further, the 

Services request comments as to 

whether the following language would 

address these issues: ‘‘Environmental 

baseline is the state of the world absent 

the action under review and includes 

the past, present and ongoing impacts of 

all past and ongoing 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 in the action 

area which are contemporaneous with 

the consultation in process. Ongoing 

means impacts or actions that would 

continue in the absence of the action 

under review.’’ 

As indicated above, we propose to 

move the instruction that the effects of 

the action shall be added to the 

environmental baseline from the 

definition of ‘‘effects of the action’’ into 

§ 402.14(g) to retain this important step 

of the analytical process. 

Definition of Programmatic Consultation 

We propose to add a definition of 

‘‘programmatic consultation.’’ This term 

is included in revised § 402.14(c)(4) to 

codify an optional consultation 

technique that is being used with 

increasing frequency and to promote the 

use of programmatic consultations as 

effective tools that can improve both 

process efficiency and conservation in 

consultations. Programmatic 

consultations can be completed under 

informal and formal consultation 

processes. They can be used to evaluate 

the effects of multiple actions 

anticipated within a particular 

geographic area; or to evaluate Federal 

agency programs that guide 

implementation of the agency’s future 

actions by establishing standards, 

guidelines, or governing criteria to 

which future actions will adhere. By 

consulting on the program, plan, policy, 

regulation, series, or suites of activities 

as a whole, the Services can reduce the 

number of single, project-by-project 

consultations, streamline the 

consultation process, and increase 

predictability and consistency for action 

agencies. In addition, by looking across 

numerous individual actions at the 

programmatic level, the Federal action 

agencies and applicants can propose 

project design criteria, best management 

practices, standard operating 

procedures, and/or standards and 

guidelines that avoid, minimize, or 

offset the action’s effects on listed 

species and/or designated critical 

habitat. Federal agencies and applicants 

often propose measures to avoid, 

minimize, and/or offset effects to listed 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35185 

species and/or designated critical 

habitat as part of their proposed action 

when they consult with the Services. 

The Services consider these measures as 

part of the proposed action when they 

evaluate the effects of the proposed 

action. 

Types of Programmatic Consultations 

1. Programmatic consultations that 

address multiple similar, frequently 

occurring, or routine actions expected to 

be implemented in particular 

geographic areas. These are generally 

categories of actions for which there is 

a good understanding of the likely 

effects on resources listed under the 

Act, although the categories encompass 

future site-specific actions of which the 

precise details are not yet known. Many, 

but not all, of these types of 

programmatic consultations have been 

referred to as ‘‘batched’’ consultations in 

the past. They do not rely on, or 

specifically incorporate by reference, 

consultations on a higher level of 

Federal action or plan. Examples of 

these types of programmatic 

consultations would be consultations 

that involve a variety of routine 

activities such as a regional road 

maintenance program by State 

departments of transportation, or a U.S. 

Army Corps of Engineers general 

permitting program at the regional level 

that covers routine construction 

activities for in-and-over-water 

structures. 

2. Programmatic consultations that 

address a proposed program, plan, 

policy, or regulation providing a 

framework for future actions. These 

programmatic consultations cover 

programs, plans, governing policies, 

and/or regulations such as a national or 

regional program, plan, policy, or 

regulation, where the Federal agency is 

generally not able to provide detailed 

specificity about the number, location, 

timing, frequency, precise methods and 

intensity of the activities expected to be 

implemented, or to determine the sitespecific adverse effects the activities 

will have on listed species or critical 

habitat. In these cases, the Service 

conducts a more generalized review of 

effects and provides the appropriate 

section 7(a)(2) determination in a letter 

of concurrence or biological opinion for 

the programmatic consultation. In the 

future, when the site-specific 

information is known, and it is 

determined the project ‘‘may affect’’ a 

listed species or critical habitat, 

typically a subsequent consultation is 

completed. That subsequent 

consultation may, not exclusively, be 

referred to as a ‘‘step-down’’ or ‘‘tiered 

consultation.’’ The subsequent 

consultation commonly incorporates by 

reference portions of the previous 

consultation on the program, plan, 

policy, or regulations. A typical 

example of this type of programmatic 

action is a land management plan. A 

land management agency may have a 

program addressing issuance of a 

special use permit for various activities. 

The program, as a part of land 

management planning, has certain 

standards and guidelines to which each 

subsequent program action must adhere. 

A consultation on the program would 

examine generally what types of effects 

would be caused by the program and 

whether those effects were consistent 

with section 7(a)(2) of the Act. In the 

future, as issuance of specific permits 

are anticipated, the Federal agency will 

return to the Service later for 

consultation, and an additional 

consultation would take place on the 

site-specific facts of that permit 

issuance. However, the subsequent or 

‘‘step-down’’ or ‘‘tiered’’ consultation 

would benefit from the initial programlevel consultation, thus streamlining 

and reducing the amount of analysis 

needed for each site-specific 

consultation. 

The Services recently promulgated 

changes to the section 7(a)(2) 

implementing regulations that define 

framework and mixed programmatic 

actions that address certain types of 

policies, plans, regulations, and 

programs (80 FR 26832, May 11, 2015). 

The types of programmatic 

consultations described above align 

with the suite of activities described in 

the 2015 rule. 

The Services encourage Federal 

agencies to coordinate with us in order 

to determine what programmatic 

approach would be applicable and 

streamline the consultation process for 

their program or suite of actions. 

Section 402.03—Applicability 

In order to increase efficiency in 

implementing section 7(a)(2) 

consultations and capitalize upon the 

considerable experience the Services 

have gained in implementing the Act, 

the Services seek comment on the 

advisability of clarifying the 

circumstances upon which Federal 

agencies are not required to consult. 

More specifically, the Services seek 

comment regarding revising § 402.03 to 

preclude the need to consult when the 

Federal agency does not anticipate take 

and the proposed action will: (1) Not 

affect listed species or critical habitat; or 

(2) have effects that are manifested 

through global processes and (i) cannot 

be reliably predicted or measured at the 

scale of a listed species’ current range, 

or (ii) would result at most in an 

extremely small and insignificant 

impact on a listed species or critical 

habitat, or (iii) are such that the 

potential risk of harm to a listed species 

or critical habitat is remote, or (3) result 

in effects to listed species or critical 

habitat that are either wholly beneficial 

or are not capable of being measured or 

detected in a manner that permits 

meaningful evaluation. The Services 

have learned through time that such 

actions are far removed from any 

potential for jeopardy or destruction or 

adverse modification of critical habitat, 

and that consultation on these actions 

does little to accomplish the intent of 

section 7(a)(2) of the Act—to ensure that 

any action authorized, funded, or 

carried out by a Federal agency is not 

likely to jeopardize the continued 

existence of listed species or result in 

the destruction or adverse modification 

of critical habitat. 

In prior consultations under section 

7(a)(2), agencies with regulatory 

authority have consulted on actions that 

include effects to listed species or 

designated critical habitat that occur 

outside of the specific area over which 

they have regulatory jurisdiction. We 

also seek comment on whether the 

scope of a consultation under section 

7(a)(2) should be limited to only the 

activities, areas, and effects within the 

jurisdictional control and responsibility 

of the regulatory agency. 

Section 402.13—Deadline for Informal 

Consultation 

Informal consultation is an optional 

process that includes all discussions, 

correspondence, etc., between the 

Service and the Federal agency to assist 

the Federal agency in determining 

whether formal consultation or a 

conference is required. 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. Finally, the Services 

may issue a written concurrence with a 

Federal agency’s determination that the 

action is not likely to adversely affect 

the listed species or critical habitat. 

There is currently no deadline for the 

Services to complete an informal 

consultation, unlike formal 

consultations, which by regulation 

should be completed within 90 days 

unless extended under the terms at 

§ 402.14(e). The Service’s goal is to 

either complete the Letter of 

Concurrence for the project, or request 

additional information that is necessary 

to complete the consultation, within 30 

days. NMFS completes approximately 


daltland on DSKBBV9HB2PROD with PROPOSALS
35186 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

1,200–1,500 individual informal 

consultations per year. Of the informal 

actions not under a programmatic 

Biological Opinion, 36 percent are 

within their 30-day goal, and 61 percent 

are within 3 months. NMFS currently 

has about 46 individual informal 

consultations that have been open for 

greater than 200 days as of July 31, 

2017, that the agency is actively 

working to complete as soon as possible. 

Between fiscal years 2011 and 2017, 

FWS completed an average of 11,344 

(ranging from 9,656 to 12,793) informal 

consultations per year. During those 

years, FWS completed between 78 

percent and 85 percent of the informal 

consultations in less than 30 days, 

averaging between 26 and 39 days to 

complete informal consultation. 

The Services are considering whether 

to add a 60-day deadline, subject to 

extension by mutual consent, for 

informal consultations. We seek 

comment on (1) whether a deadline 

would be helpful in improving the 

timeliness of review; (2) the appropriate 

length for a deadline (if not 60 days); 

and (3) how to appropriately implement 

a deadline (e.g., which portions of 

informal consultation the deadline 

should apply to [e.g., technical 

assistance, response to requests for 

concurrence, etc.], when informal 

consultation begins, and the ability to 

extend or ‘‘pause the clock’’ in certain 

circumstances, etc.). 

Section 402.14—Formal Consultation 

Consistent with the Services’ existing 

practice, we propose to revise 

§ 402.14(c) to clarify what is necessary 

to initiate formal consultation. Decades 

of experience have demonstrated 

valuable time is lost due to lack of 

clarity in what information the Services 

need to initiate consultation. This often 

results in an ongoing exchange of 

documents (e.g., biological assessments, 

biological evaluations, National 

Environmental Policy Act (NEPA) 

documents) in which the Federal 

agencies and Services seek to compile 

the necessary information, which results 

in significant inefficiencies and 

frustrations on the part of both the 

Federal agencies and the Services. The 

proposed revision is intended to 

eliminate the confusion and 

misunderstanding existing in the 

current regulations and significantly 

increase the efficiency of the process for 

both the Federal agencies and the 

Services. It is important to note the 

Services are not proposing to require 

more information than existing practice; 

instead, we are proposing to clarify in 

the regulations what is needed to 

initiate consultation in order to improve 

the consultation process. 

The proposed revisions to § 402.14(c) 

would further describe the information 

from the Federal agency necessary to 

initiate consultation. This set of 

information is commonly called the 

‘‘initiation package,’’ and that term is 

also used in our proposed regulations 

for alternative formal consultation 

procedures to refer to the information 

required in § 402.14(c). Consistent with 

§ 402.06 (Coordination with other 

environmental reviews), we also 

propose at § 402.14(c) to allow the 

Services to consider other documents as 

initiation packages, such as: a document 

prepared for the sole purpose of 

providing the Service with information 

relevant to an agency’s consultation, a 

document that has been prepared under 

NEPA or other authority that contains 

the necessary information to initiate 

consultation, or other such documents 

(e.g., grant application, State of 

Washington Joint Aquatic Resources 

Permit Application, California 

Environmental Quality Act 

Environmental Impact Report, etc.) that 

meet the requirements for initiating 

consultation. 

When such documents consider two 

or more alternative actions, the request 

for consultation must describe the 

specific alternative or action proposed 

for consultation and the specific 

locations in the document where the 

relevant information is found. The 

Services evaluate only the Federal 

agency’s proposed alternative during the 

consultation process. If the Federal 

agency either adopts another alternative 

as its final agency action, or 

substantively modifies the proposed 

alternative, reinitiation of consultation 

may be required. 

The proposed regulations describe 

categories of information that should be 

in an initiation package to initiate 

formal consultation. Information must 

be provided in a sufficient level of detail 

consistent with the nature and scope of 

the proposed action. Consistent with the 

Service’s existing practice, the 

requirement to include sufficient detail 

ensures the Service has enough 

information to understand the action as 

proposed and conduct an informed 

analysis of the effects of the action, 

including with regard to those measures 

intended to avoid, minimize, or offset 

effects. See Consultation Handbook, at 

B–54 (Description of the proposed 

action should be ‘‘detailed enough so 

that the reviewer can fully understand 

what the components of the action 

include and how the project will affect 

the species.’’) Such information should 

include a description of the proposed 

action, including any measures 

intended to avoid, minimize, or offset 

the effects of the proposed action, a 

description of the area affected (the 

action area), information about species 

or critical habitat in the action area, a 

description of potential effects of the 

proposed action on individuals of any 

listed species or critical habitat, a 

description of the cumulative effects, a 

summary of information from the 

applicant, if any, and any other relevant 

information. 

Service Responsibilities 

We propose to revise portions of 

§ 402.14(g) that describe the Services’ 

responsibilities during formal 

consultation. We propose to clarify the 

analytical steps the Services undertake 

in formulating a biological opinion. 

These changes are intended to better 

reflect the Services’ approach to 

analyzing jeopardy and adverse 

modification as well as address 

revisions to the definition of ‘‘effects of 

the action.’’ In summary, these 

analytical steps are: (1) Review all 

relevant information, (2) evaluate 

current status of the species and critical 

habitat and environmental baseline, (3) 

evaluate effects of the proposed action 

and cumulative effects, (4) add effects of 

the action and cumulative effects to the 

environmental baseline, and, in light of 

the status of the species and critical 

habitat, determine if the proposed 

action is likely to jeopardize listed 

species or result in the destruction or 

adverse modification of critical habitat. 

While we identify distinct steps in our 

analytical approach, each step is related 

to the others and necessarily informs 

and influences our analysis. For 

example, the condition of the 

environmental baseline is relevant to 

the nature and extent of the effects of 

the action. Effects of the action that in 

isolation would be of minor 

consequence may be amplified and of 

greater consequence when analyzed in 

light of the condition of the 

environmental baseline. 

In § 402.14(g)(2), we propose to move 

from the current definition of ‘‘effects of 

the action’’ the instruction that the 

effects of the action shall be added to 

the environmental baseline to where 

this provision more logically fits with 

the rest of the analytical process, and we 

retain this important step of that 

process. In § 402.14(g)(4), we propose 

revisions to better reflect the manner in 

which the Services integrate and 

synthesize their analyses of effects of 

the action with cumulative effects, the 

environmental baseline, and status of 

the species and critical habitat to reach 

our jeopardy and adverse modification 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35187 

determinations. Again, this proposed 

change reflects the Service’s existing 

approach. See Consultation Handbook, 

at 4–33 (‘‘The conclusion section 

presents the Services’ opinion regarding 

whether the aggregate effects of the 

factors analyzed under ‘‘environmental 

baseline,’’ ‘‘effects of the action,’’ and 

‘‘cumulative effects’’ in the action 

area—when viewed against the status of 

the species or critical habitat as listed or 

designated—are likely to jeopardize the 

continued existence of the species or 

result in destruction or adverse 

modification of critical habitat.’’) 

We propose clarifications to 

§ 402.14(g)(8) regarding whether and 

how the Service should consider 

measures included in a proposed action 

that are intended to avoid, minimize, or 

offset adverse effects to listed species or 

critical habitat. Federal agencies often 

include these types of measures as part 

of the proposed action. However, the 

Service’s reliance on a Federal agency’s 

commitment that the measures will 

actually occur as proposed has been 

repeatedly questioned in court. The 

resulting judicial decisions have created 

confusion regarding what level of 

certainty is required to demonstrate that 

a measure will in fact be implemented 

before the Service can consider it in a 

biological opinion. In particular, the 

Ninth Circuit has held that even an 

expressed sincere commitment by a 

Federal agency or applicant to 

implement future improvements to 

benefit a species must be rejected absent 

‘‘specific and binding plans’’ with ‘‘a 

clear, definite commitment of resources 

for future improvements.’’ Nat’l Wildlife 

Fed’n v. Nat’l Marine Fisheries Serv., 

524 F.3d 917, 935–36 (9th Cir. 2008). 

This judicially created standard is not 

required by the Act or the existing 

regulations. The Act requires Federal 

agencies to consult with the Services, as 

appropriate, on ‘‘any action authorized, 

funded or carried out by such agency.’’ 

When a Federal agency proposes to take 

an action that it has the discretion and 

authority to implement, and where that 

proposed action or parts thereof ‘‘may 

affect’’ a listed species or its critical 

habitat, the section 7(a)(2) consultation 

process is triggered. Where these 

conditions are met, the Service’s role is 

to assume that the action will be 

implemented as proposed and proceed 

to analyze the effects of that proposed 

action on listed species and critical 

habitat. Just as with the components of 

a proposed action with adverse effects, 

there is no additional or heightened 

standard or threshold requirement 

necessitating the Service to 

independently evaluate whether the 

proposed measures to avoid, minimize, 

or offset adverse effects will be 

implemented. 

In some situations, a Federal agency 

may propose a suite or program of 

measures that will be implemented over 

time. The future components of the 

proposed action often have some 

uncertainty with regard to the specific 

details of projects that will be 

implemented. Nevertheless, a Federal 

agency or applicant may be fully 

capable of committing to specific levels 

and types of actions (e.g., habitat 

restoration) and specific populations or 

species that will be the focus of the 

effort. If the Federal agency provides 

information in sufficient detail for the 

Services to meaningfully evaluate the 

effects of measures proposed to avoid, 

minimize, or offset adverse effects, the 

Services must consider the proposed 

measures during a consultation, as the 

Act requires the Services to issue their 

expert opinion on ‘‘how the agency 

action affects the species or its critical 

habitat,’’ 16 U.S.C. 1536(b)(3)(A), and 

thus, are entitled to rely on that 

information as proposed. Therefore, we 

are proposing revisions to § 402.14(c)(1) 

with respect to the information a 

Federal agency must submit to initiate 

formal consultation. Under this 

proposed rule and consistent with the 

Service’s existing approach, a Federal 

agency must submit a description of the 

proposed action, including available 

information about any measures 

intended to avoid, minimize, or offset 

effects of the proposed action. As 

discussed above, the requirement for 

sufficient detail regarding all aspects of 

the proposed action ensures the 

Services have the information needed to 

conduct an informed analysis of the 

effects of all activities included in the 

proposed action. Provided the Federal 

agency submits the information required 

by § 402.14(c), the Services will take 

into consideration the effects of the 

action as proposed, both beneficial and 

adverse. 

By describing what is included in the 

proposed action, the Federal agency has 

made a commitment and retains 

independent obligations to insure that 

its action is not likely to jeopardize 

listed species or destroy or adversely 

modify critical habitat. Should new 

information arise or our assumptions set 

forth in the consultation change during 

implementation—for instance, where 

the action or elements thereof are not 

implemented as proposed—the Federal 

agency must continue to ensure 

compliance with the Act and has several 

options to do so. This may include 

reinitiating consultation with the 

Service(s) to evaluate the changed 

circumstances. If an incidental take 

statement includes reasonable and 

prudent measures and terms and 

conditions intended to minimize the 

impact of incidental take, the Federal 

agency must carry out those measures or 

risk losing the exemption afforded by 

the incidental take statement. 

Ultimately, as consulting and action 

agencies, the Act’s statutory and 

regulatory provisions provide distinct 

responsibilities such that there is no 

requirement for the Service to 

independently evaluate whether the 

Federal agency is likely to carry out its 

commitments. This is the Services’ 

longstanding position, as reflected in 

other provisions of the regulations (for 

instance, those governing development 

of Reasonable and Prudent 

Alternatives), and is consistent with the 

Act. Therefore, we propose revisions to 

§ 402.14(g)(8) to clarify there is no 

requirement for measures that avoid, 

minimize, or offset the adverse effects of 

an action that are included in the 

proposed action to be accompanied by 

‘‘specific and binding plans,’’ ‘‘a clear, 

definite commitment of resources’’, or 

meet other such criteria. 

Biological Opinions 

We propose to add new paragraphs 

(h)(3) and (h)(4) to the current 

§ 402.14(h) to allow the Services to 

adopt all or part of a Federal agency’s 

initiation package in its biological 

opinion. Additionally, we propose to 

allow the Services to adopt all or part 

of their own analyses and findings that 

are required to issue a permit under 

section 10(a) of the Act in its biological 

opinion. 

The Services have more than 30 years 

of experience in conducting 

consultation pursuant to section 7(a)(2) 

of the Act under the existing 

regulations. Based upon that experience, 

we have determined that the current 

regulations would be more efficient and 

clear if we were to codify or create 

additional optional procedures within 

formal consultation (Service adoption of 

all or part of a Federal agency’s 

initiation package and expedited 

consultations) and streamline 

duplicative processes (consultation on 

permits issued under section 10 of the 

Act). We recognize that several factors, 

including the scope and complexity of 

the proposed action, the magnitude and 

extent of the effects that flow from the 

proposed action, and the expertise of 

various Federal agencies, all warrant 

more than the two general types of 

consultation provided for in the current 

regulations. In addition, the experience 

of recent decades has led to significant 

improvements in consultation efficiency 

and species conservation as a result of 


daltland on DSKBBV9HB2PROD with PROPOSALS
35188 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

the effective use of streamlined or 

programmatic approaches. We believe 

that these alternative consultation 

procedures will promote flexibility and 

efficiency for the action agencies, 

applicants, and the Services, and can be 

implemented in compliance with the 

Act while not compromising the 

conservation of listed species. 

We propose that the Service may 

adopt all or part of a Federal agency’s 

initiation package or the Services’ 

analyses and findings that are required 

to issue a permit under section 10(a) of 

the Act in its biological opinion. This 

provision would allow the Services to 

utilize portions of these documents in 

the development of our biological 

opinion to improve efficiency in the 

consultation process and reduce 

duplicative efforts. Adoption or 

incorporation by reference is typically 

done during consultations, and this 

provision codifies that approach. 

Further, the provision explicitly 

applies this approach to the Service’s 

issuance of permits under section 10 of 

the Act. The review and analyses 

undertaken to develop a finding that 

various criteria have been met for 

issuing a permit pursuant to section 

10(a)(1)(A) or 10(a)(1)(B) contain many 

of the elements reviewed and analyzed 

in a section 7 consultation. Therefore, 

we propose to adopt the analyses and 

review that supports issuance of these 

permits as part of the biological opinion 

required to meet the applicable 

provisions of the part 402 consultation 

regulations. As a result, the section 7 

analysis and document can be 

streamlined to just those portions 

necessary to present a complete finding 

under section 7(a)(2) and 7(b)(3). We 

note also that the Service issuing the 

permit would have to ensure that its 

determination regarding jeopardy and 

destruction or adverse modification is 

not limited to the species for which the 

permit is authorizing take, but that it 

covers all listed species and all 

designated critical habitat under the 

Service’s jurisdiction affected by the 

proposed action. In cases where 

issuance of a section 10 permit by one 

of the Services (e.g., FWS) may affect 

listed species or critical habitat under 

the jurisdiction of the other Service 

(e.g., NMFS), the permitting agency will 

still need to consult with the other 

Service, as well. 

While it is the responsibility of the 

Federal agency to develop the initiation 

package, we propose a collaborative 

process to facilitate the Federal agency’s 

development of an initiation package 

that could be used as all or part of the 

Service’s biological opinion. First, the 

Federal agency and the Service must 

mutually agree that the adoption 

process is appropriate for the proposed 

action. Subsequently, the Services and 

the Federal agency may develop 

coordination procedures that would 

facilitate adoption. This agreement must 

be explained in the Federal agency’s 

initiation package and acknowledged in 

the Services’ biological opinion. The 

purpose of the collaboration is to bring 

the information and expertise of both 

the Federal agency and the Service (and 

any applicant) into the resulting 

initiation package to facilitate a more 

efficient and effective consultation 

process. The end result of the adoption 

consultation process is expected to be 

the adoption of the initiation package 

with any necessary supplementary 

analyses and incidental take statement 

to be added by the Service as the 

Secretary’s biological opinion in 

fulfillment of section 7(b) of the Act. 

Expedited Consultation 

We propose to add a new provision 

titled ‘‘Expedited consultations’’ at 

§ 402.14(l) to offer opportunities to 

streamline consultation, particularly for 

actions that have minimal adverse 

effects or predictable effects based on 

previous consultation experience. This 

consultation process is proposed to 

provide an efficient means to complete 

formal consultation on projects ranging 

from those that have a minimal impact, 

to those projects with a potentially 

broad range of effects that are known 

and predictable, but that are unlikely to 

cause jeopardy or destruction or adverse 

modification. The Services have 

developed a vast knowledge of projects, 

and in the course of doing so, have 

concluded that some types of projects 

can be consulted on in a more 

expeditious manner without 

compromising the conservation of listed 

species or critical habitat. For example, 

a habitat-restoration project that results 

in high conservation value for the 

species but may have a small amount of 

incidental take through construction or 

monitoring would likely lend itself to 

this type of consultation (for 

Streamlined Consultation Guidance for 

Restoration and Recovery Projects, see 

https://www.fws.gov/endangered/esalibrary/index.html#consultations under 

‘‘Policies’’ for guidance documents for 

consultations with the Fish and Wildlife 

Service). 

Two elements are important to the 

successful implementation of this form 

of consultation. First is the mutual 

agreement between the Service and the 

Federal agency that this form of 

consultation is appropriate for the 

proposed action. Informal consultation 

has been an available optional process 

for 30 years and is most often utilized 

to address proposed actions that are not 

likely to adversely affect listed species 

or critical habitat. In contrast, expedited 

consultations are a new process and 

likely involve proposed actions that 

would otherwise go through the regular 

formal consultation process and require 

an incidental take statement. We make 

mutual agreement a required first step 

in the expedited consultation process to 

avoid wasted effort if Federal agencies 

propose actions for expedited 

consultation that would not be suitable 

for expedited analysis by the Service. 

The second important element is the 

development of a sufficient initiation 

package (as described in § 402.14(c) of 

the regulations) that provides all the 

information needed to allow the Service 

to prepare a streamlined consultation 

response within mutually agreed-upon 

expedited timeframes. We expect that a 

combination of one-on-one 

collaboration with Federal agency staff 

and the availability of guidance and 

templates will ensure the most efficient 

process for development of initiation 

packages and expedited biological 

opinions. For a NMFS example of a 

similar effort for informal consultations 

through the development of guidance, 

see https://www.greateratlantic.

fisheries.noaa.gov/protected/section7/ 

guidance/consultation/index.html#

writing. 

In § 402.14, we propose to redesignate 

current paragraph (l) as paragraph (m) to 

accommodate the addition of the 

proposed new paragraph (l). 

Section 402.16—Reinitiation of 

Consultation 

We propose two changes to this 

section. First, we propose to remove the 

term ‘‘formal’’ from the title and text of 

this section to acknowledge that the 

requirement to reinitiate consultation 

applies to all section 7(a)(2) 

consultations. By practice, action 

agencies have reinitiated informal 

consultations when a trigger for 

reinitiation has been met. Courts have 

also held that reinitiation is required in 

the context of informal consultation. See 

Forest Guardians v. Johanns, 450 F.3d 

455, 458 (9th Cir. 2006). Second, we 

propose to amend this section 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). In 

Cottonwood, the court held that the 

Forest Service was required to reinitiate 

consultation on certain forest 

management plans due to the 

designation of Canada lynx critical 

habitat. The court held that, even if an 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35189 

approved land management plan is 

considered to be a completed action, the 

Forest Service nonetheless was 

obligated to reinitiate consultation since 

it retained ‘‘discretionary Federal 

involvement or control’’ over the plan. 

Cottonwood, 789 F.3d at 1084–85. 

We propose to make non-substantive 

redesignations and then revise § 402.16 

by adding a new paragraph (b) to clarify 

that the duty to reinitiate does not apply 

to an existing programmatic land 

management plan prepared pursuant to 

the Federal Land Policy Management 

Act (FLPMA), 43 U.S.C. 1701 et seq., or 

the National Forest Management Act 

(NFMA), 16 U.S.C. 1600 et seq. when a 

new species is listed or new critical 

habitat is designated. 

We reaffirm that only affirmative 

discretionary actions are subject to 

reinitiation under our regulations, and 

the mere existence of a programmatic 

land management plan is not affirmative 

discretionary action. See generally 

Southern Utah Wilderness Alliance v. 

Norton, 542 U.S. 55 (2004). See also 

National Ass’n of Homebuilders v. 

Defenders of Wildlife, 551 U.S. 644 

(2007). While the Act does not expressly 

mandate reinitiation on discretionary 

affirmative actions, in 1986 we 

determined that the Act’s legislative 

history and conservation goals 

supported reinitiation if certain triggers 

are met. After decades of experience 

cooperating with action agencies across 

the Federal Government, we have 

gained the expertise of when reinitiation 

of consultation is most effective to 

meeting the overall goals of the Act. 

Reinitiating on a purely programmatic 

land management plan when new 

species are listed or critical habitat 

designated does little to further these 

goals. Both the Bureau of Land 

Management (BLM) and U.S. Forest 

Service (USFS) are required to 

periodically update their land 

management plans, at which time they 

would consult on any newly listed 

species or designated critical habitat. 

BLM is required to periodically evaluate 

and revise Resource Management Plans 

(see 43 CFR 1610); the interval between 

reevaluations should not exceed 5 years 

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

USFS is required to revise their land 

management plans at least every 15 

years (see 36 CFR 219.7). In addition to 

being required to periodically revise 

their land management plans, both BLM 

and USFS are required to consult on any 

specific on-the-ground actions that 

implement the land management plans 

if those actions may affect listed species 

or critical habitat. We are thus 

exercising our discretion and narrowing 

§ 402.16 to exclude two types of plans 

that have no immediate on-the-ground 

effects. Requiring reinitiation on these 

completed plans based on newly listed 

species or critical habitat often results in 

impractical and disruptive burdens. 

Moreover, reinitiating consultation on 

a programmatic land management plan 

results in little benefit to the newly 

listed species or critical habitat because 

the plan’s mere existence does not result 

in any immediate effects upon either, 

thus rendering any reinitiation under 

these conditions inefficient and 

ineffective. In contrast, specific on-theground actions that implement the plan 

are subject to their own section 7 

consultations if those actions may affect 

listed species or critical habitat. These 

on-the-ground, action-specific 

consultations allow us to direct our 

limited resources to those actions that 

actually cause effects and ensure that 

the USFS and the BLM fulfill their 

obligations under section 7. Thus, this 

new proposed regulation also restates 

our position that, while a completed 

programmatic land management plan 

does not require reinitiation upon the 

listing of new species or critical habitat, 

any on-the-ground subsequent actions 

taken pursuant to the plan must be 

subject to a separate section 7 

consultation if those actions may affect 

the newly listed species or critical 

habitat. 

Rather than reinitiation of a section 

7(a)(2) consultation at the plan level, the 

Services recommend these agencies 

develop section 7(a)(1) conservation 

programs in consultation with the 

Services when a new species is listed or 

critical habitat designated. This 

proactive, conservation planning 

process will enable them to better 

synchronize their actions and programs 

with the conservation and recovery 

needs of listed and proposed species. 

Such planning can help Federal 

agencies develop specific, pre-approved 

design criteria to ensure their actions 

are consistent with the conservation and 

recovery needs of the species. 

Additionally, these section 7(a)(1) 

programs will facilitate efficient 

development of the next programmatic 

section 7(a)(2) consultations when the 

land management plan is renewed. 

In addition to seeking comment on 

the proposed revision to 50 CFR 402.16, 

we are seeking comments on whether to 

exempt other types of programmatic 

land or water management plans in 

addition to those prepared pursuant to 

FLPMA and NFMA from the 

requirement to reinitiate consultation 

when a new species is listed or critical 

habitat designated. We are also seeking 

comment on this proposed revision in 

light of the recently enacted Wildfire 

Suppression Funding and Forest 

Management Activities Act, H.R. 1625, 

Division O, which was included in the 

Omnibus Appropriations bill for fiscal 

year 2018. 

Section 402.17—Other Provisions 

We propose to add a new § 402.17 

titled ‘‘Other provisions.’’ Within this 

new section, we propose a new 

provision titled ‘‘Activities that are 

reasonably certain to occur,’’ in order to 

clarify the application of the 

‘‘reasonably certain to occur’’ standard 

referenced in § 402.02 (defining effects 

of the action and cumulative effects) in 

two specific contexts. This new 

proposed provision applies only to 

activities caused by but not included in 

the proposed action and activities under 

cumulative effects. We propose to 

address reasonable certainty in these 

two contexts due to the substantial 

confusion that has sometimes resulted 

from determining when these sorts of 

activities should be considered. The 

proposed text addresses the relative 

level of certainty required and is 

intended to avoid inclusion of activities 

whose occurrence would be considered 

speculative, but also to avoid requiring 

an expectation that the activity is 

absolutely certain to occur. We also 

identify a non-exclusive list of factors 

that inform the determination of 

whether an activity should be 

considered reasonably certain to occur. 

For example, one of the factors to 

consider is the existence of any relevant 

plans (e.g., community plans, 

management plans, transportation 

plans, etc.). We also specify that this 

provision only applies to activities 

caused by but not included in the 

proposed action and activities under 

cumulative effects. Consistent with the 

Act, existing regulations, and agency 

practice, we do not propose to apply the 

reasonable certainty standard to 

whether the proposed action itself will 

be implemented, but again, only to the 

analysis of the effects of the action to 

ensure that the effects analysis does not 

focus on speculative impacts. This 

provision reflects the fundamental 

nature of consultation under section 

7(a)(2) in which the Services consult on 

the action as proposed. 

Request for Information 

We intend that a final regulation will 

consider information and 

recommendations from all interested 

parties. We therefore solicit comments, 

information, and recommendations from 

governmental agencies, Native 

American tribes, the scientific 

community, industry groups, 

environmental interest groups, and any 


daltland on DSKBBV9HB2PROD with PROPOSALS
35190 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

other interested parties. All comments 

and materials received by the date listed 

in DATES above will be considered prior 

to the approval of a final document. 

You may submit your information 

concerning this proposed rule by one of 

the methods listed in ADDRESSES. If you 

submit information via http://

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this personal 

identifying information from public 

review. However, we cannot guarantee 

that we will be able to do so. We will 

post all hardcopy submissions on http:// 

www.regulations.gov. 

Information and supporting 

documentation that we receive in 

response to this proposed rule will be 

available for you to review at http://

www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Division of Environmental 

Review (see FOR FURTHER INFORMATION

CONTACT). 

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 (OMB) will 

review all significant rules. OIRA has 

determined that this 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 expected to be 

a deregulatory action under E.O. 13771. 

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 or her 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. 

The following discussion explains our 

rationale. 

This rulemaking revises and clarifies 

existing requirements for Federal 

agencies under the Endangered Species 

Act. Federal agencies are the only 

entities that are directly affected by this 

rule, and they are not considered to be 

small entities under SBA’s size 

standards. No other entities are directly 

affected by this rule. Moreover, this 

proposed rulemaking action is not a 

major rule under SBREFA. 

This proposed rule, if made final, 

would be applied in determining 

whether a Federal agency has insured, 

in consultation with the Services, that 

any action it would authorize, fund, or 

carry out is not likely to jeopardize 

listed species or result in the 

destruction or adverse modification of 

critical habitat. This proposed rule is 

substantially unlikely to affect our 

determinations as to whether or not 

proposed actions are likely to jeopardize 

listed species or result in the 

destruction or adverse modification of 

critical habitat. The proposed rule 

would serve to provide clarity to the 

standards with which we will evaluate 

agency actions pursuant to section 7 of 

the Endangered Species Act. 

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. 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. 

(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 additional management or protection 

requirements 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 substantially advance a 

legitimate government interest 

(conservation and recovery of 

endangered species and threatened 

species) and 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 improving and 

clarifying the interagency consultation 

processes under the Endangered Species 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35191 

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 does not unduly 

burden the judicial system and meets 

the applicable standards provided in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. This proposed rule would 

clarify the interagency consultation 

processes under the Endangered Species 

Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. 

Paperwork Reduction Act 

This rule does not contain any new 

collections of information other than 

those already approved under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). We may not conduct or 

sponsor and you are 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 NEPA, the Department of the 

Interior regulations on implementation 

of NEPA (43 CFR 46.10–46.450), the 

Department of the Interior Manual (516 

DM 8), the NOAA Administrative Order 

216–6A, and the companion manual, 

‘‘Policy and Procedures for Compliance 

with the National Environmental Policy 

Act and Related Authorities,’’ which 

became effective January 13, 2017. We 

invite the public to comment on the 

extent to which this proposed regulation 

may have a significant impact on the 

human environment, or fall within one 

of the categorical exclusions for actions 

that have no individual or cumulative 

effect on the quality of the human 

environment. We will complete our 

analysis, in compliance 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. 

Therefore, this action is a not a 

significant energy action, and 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 feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. 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 that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

References Cited 

A complete list of all references cited 

in this document is available on the 

internet at http://www.regulations.gov 

in Docket No. FWS–HQ–ES–2018–0009 

or upon request from the U.S. Fish and 

Wildlife Service (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the 

Ecological Services Program, U.S. Fish 

and Wildlife Service, 5275 Leesburg 

Pike, Falls Church, VA 22041–3803, and 

the National Marine Fisheries Service’s 

Endangered Species Division, 1335 EastWest Highway, Silver Spring, MD 

20910. 

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 

Accordingly, we propose to amend 

subparts A and 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 § 402.02 by revising the 

definitions of ‘‘Destruction or adverse 

modification,’’ ‘‘Director,’’ and ‘‘Effects 

of the action’’ and adding definitions for 

‘‘Environmental baseline’’ and 

‘‘Programmatic consultation’’ in 

alphabetic order to read as follows: 

§ 402.02 Definitions. 

* * * * * 

Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat as a whole for the 

conservation of a listed species. 

Director refers to the Assistant 

Administrator for Fisheries for the 

National Marine Fisheries Service, or 

his or her authorized representative; or 

the Director of the U.S. Fish and 

Wildlife Service, or his or her 

authorized representative. 

* * * * * 

Effects of the action are all effects on 

the listed species or critical habitat that 

are caused by the proposed action, 

including the effects of other activities 

that are caused by the proposed action. 

An effect or activity is caused by the 

proposed action if it would not occur 

but for the proposed action and it is 

reasonably certain to occur. Effects of 

the action may occur later in time and 

may include effects occurring outside 

the immediate area involved in the 

action. 

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. 

* * * * * 

Programmatic consultation is a 

consultation addressing an agency’s 

multiple actions on a program, region, 

or other basis. Programmatic 

consultations allow the Services to 


daltland on DSKBBV9HB2PROD with PROPOSALS
35192 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

consult on the effects of programmatic 

actions such as: 

(1) Multiple similar, frequently 

occurring or routine actions expected to 

be implemented in particular 

geographic areas; and 

(2) A proposed program, plan, policy, 

or regulation providing a framework for 

future proposed actions. 

* * * * * 

■ 3. Amend § 402.14 by: 

■ a. Revising paragraphs (c), (g)(2), 

(g)(4), (g)(8), and (h): 

■ b. Redesignating paragraph (l) as 

paragraph (m); and 

■ c. Adding a new paragraph (l). 

The revisions and addition read as 

follows: 

§ 402.14 Formal consultation. 

* * * * * 

(c) Initiation of formal consultation. 

(1) A written request to initiate formal 

consultation shall be submitted to the 

Director and shall include: 

(i) A description of the proposed 

action, including any measures 

intended to avoid, minimize, or offset 

effects of the action. Consistent with the 

nature and scope of the proposed action, 

the description shall provide sufficient 

detail to assess the effects of the action 

on listed species and critical habitat, 

including: 

(A) The purpose of the action; 

(B) The duration and timing of the 

action; 

(C) The location of the action; 

(D) The specific components of the 

action and how they will be carried out; 

(E) Maps, drawings, blueprints, or 

similar schematics of the action; and 

(F) Any other available information 

related to the nature and scope of the 

proposed action relevant to its effects on 

listed species or designated critical 

habitat. 

(ii) A map or description of all areas 

to be affected directly or indirectly by 

the Federal action, and not merely the 

immediate area involved in the action 

(i.e., the action area as defined at 

§ 402.02). 

(iii) Information obtained by or in the 

possession of the Federal agency and 

any applicant on the listed species and 

designated critical habitat in the action 

area (as required by paragraph (c)(1)(ii) 

of this section), including available 

information such as the presence, 

abundance, density, or periodic 

occurrence of listed species and the 

condition and location of species’ 

habitat, including any critical habitat. 

(iv) A description of the effects of the 

action and an analysis of any 

cumulative effects. 

(v) A summary of any relevant 

information provided by the applicant, 

if available. 

(vi) Any other relevant available 

information on the effects of the 

proposed action on listed species or 

designated critical habitat, including 

any relevant reports such as 

environmental impact statements and 

environmental assessments. 

(2) A Federal agency may submit 

existing documents prepared for the 

proposed action such as NEPA analyses 

or other reports in substitution for the 

initiation package outlined in this 

paragraph (c). However, any such 

substitution shall be accompanied by a 

written summary specifying the location 

of the information that satisfies the 

elements above in the submitted 

document(s). 

(3) Formal consultation shall not be 

initiated by the Federal agency until any 

required biological assessment has been 

completed and submitted to the Director 

in accordance with § 402.12. 

(4) Any request for formal 

consultation may encompass, subject to 

the approval of the Director, a number 

of similar individual actions within a 

given geographical area, a programmatic 

consultation, or a segment of a 

comprehensive plan. This provision 

does not relieve the Federal agency of 

the requirements for considering the 

effects of the action or actions as a 

whole. 

* * * * * 

(g) * * * 

(2) Evaluate the current status and 

environmental baseline of the listed 

species or critical habitat. 

* * * * * 

(4) Add the effects of the action and 

cumulative effects to the environmental 

baseline and in light of the status of the 

species and critical habitat, formulate 

the Service’s opinion as to whether the 

action is likely to jeopardize the 

continued existence of listed species or 

result in the destruction or adverse 

modification of critical habitat. 

* * * * * 

(8) In formulating its biological 

opinion, any reasonable and prudent 

alternatives, and any reasonable and 

prudent measures, the Service will use 

the best scientific and commercial data 

available and will give appropriate 

consideration to any beneficial actions 

as proposed or taken by the Federal 

agency or applicant, including any 

actions taken prior to the initiation of 

consultation. Measures included in the 

proposed action or a reasonable and 

prudent alternative that are intended to 

avoid, minimize, or offset the effects of 

an action are considered like other 

portions of the action and do not require 

any additional demonstration of specific 

binding plans or a clear, definite 

commitment of resources. 

(h) Biological opinions. 

(1) The biological opinion shall 

include: 

(i) A summary of the information on 

which the opinion is based; 

(ii) A detailed discussion of the effects 

of the action on listed species or critical 

habitat; and 

(iii) The Service’s opinion on whether 

the action is: 

(A) Likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of critical habitat (a ‘‘jeopardy’’ 

biological opinion); or 

(B) Not likely to jeopardize the 

continued existence of a listed species 

or result in the destruction or adverse 

modification of critical habitat (a ‘‘no 

jeopardy’’ biological opinion). 

(2) A ‘‘jeopardy’’ biological opinion 

shall include reasonable and prudent 

alternatives, if any. If the Service is 

unable to develop such alternatives, the 

Service will indicate that to the best of 

its knowledge there are no reasonable 

and prudent alternatives. 

(3) The Service may adopt all or part 

of: 

(i) A Federal agency’s initiation 

package; or 

(ii) The Service’s analysis required to 

issue a permit under section 10(a) of the 

Act in its biological opinion. 

(4) A Federal agency and the Service 

may agree to follow an optional 

collaborative process that would further 

the ability of the Service to adopt the 

information and analysis provided by 

the Federal agency during consultation 

in the development of the Service’s 

biological opinion to improve efficiency 

in the consultation process and reduce 

duplicative efforts. The Federal agency 

and the Service shall consider the 

nature, size, and scope of the action or 

its anticipated effects on listed species 

or critical habitat, and other relevant 

factors to determine whether an action 

or a class of actions is appropriate for 

this process. The Federal agency and the 

Service may develop coordination 

procedures that would facilitate 

adoption. The end result of the adoption 

consultation process is expected to be 

the adoption of the initiation package 

with any necessary supplementary 

analyses and incidental take statement 

to be added by the Service, if 

appropriate, as the Service’s biological 

opinion in fulfillment of section 7(b) of 

the Act. 

* * * * * 

(l) Expedited consultations. Expedited 

consultation is an optional formal 

consultation process that a Federal 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35193 

agency and the Service may enter into 

upon mutual agreement. To determine 

whether an action or a class of actions 

is appropriate for this type of 

consultation, the Federal agency and the 

Service shall consider the nature, size, 

and scope of the action or its anticipated 

effects on listed species or critical 

habitat and other relevant factors. 

Conservation actions whose primary 

purpose is to have beneficial effects on 

listed species will likely be considered 

appropriate for expedited consultation. 

(1) Upon agreement to use this 

expedited consultation process, the 

Federal agency and the Service shall 

establish the expedited timelines for the 

completion of this consultation process. 

(2) Federal agency responsibilities: To 

request initiation of expedited 

consultation, the Federal agency shall 

provide all the information required to 

initiate consultation under paragraph (c) 

of this section. To maximize efficiency 

and ensure that it develops the 

appropriate level of information, the 

Federal agency is encouraged to develop 

its initiation package in coordination 

with the Service. 

(3) Service responsibilities: In 

addition to the Service’s responsibilities 

under the provisions of this section, the 

Service will: 

(i) Provide relevant species 

information to the Federal agency and 

guidance to assist the Federal agency in 

completing its effects analysis in the 

initiation package; and 

(ii) Conclude the consultation and 

issue a biological opinion within the 

agreed-upon timeframes. 

* * * * * 

■ 4. Amend § 402.16 by: 

■ a. Revising the section heading; 

■ b. Redesignating paragraphs (a) 

through (d) as paragraphs (a)(1) through 

(a)(4); 

■ c. Designating the introductory text as 

paragraph (a) and revising the newly 

designated paragraph (a); and 

■ d. Adding a new paragraph (b). 

The revisions and addition read as 

follows: 

§ 402.16 Reinitiation of consultation. 

(a) Reinitiation of consultation is 

required and shall be requested by the 

Federal agency or by the Service, where 

discretionary Federal involvement or 

control over the action has been 

retained or is authorized by law and: 

* * * * * 

(b) An agency shall not be required to 

reinitiate consultation after the approval 

of a land management plan prepared 

pursuant to 43 U.S.C. 1712 or 16 U.S.C. 

1604 upon 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. 

■ 5. Add § 402.17 to read as follows: 

§ 402.17 Other provisions. 

(a) Activities that are reasonably 

certain to occur. To be considered 

reasonably certain to occur, the activity 

cannot be speculative but does not need 

to be guaranteed. Factors to consider 

include, but are not limited to: 

(1) Past relevant experiences; 

(2) Any existing relevant plans; and 

(3) Any remaining economic, 

administrative, and legal requirements 

necessary for the activity to go forward. 

(b) The provisions in paragraph (a) of 

this section apply only to activities 

caused by but not included in the 

proposed action and activities 

considered under cumulative effects. 

§ 402.40 [Amended] 

■ 6. In § 402.40, amend paragraph (b) by 

removing ‘‘§ 402.14(c)(1)–(6)’’ and in its 

place adding ‘‘§ 402.14(c)’’. 

Dated: July 18, 2018. 

Ryan K. Zinke, 

Secretary, Department of the Interior. 

Dated: July 16, 2018. 

Wilbur Ross, 

Secretary, Department of Commerce. 

[FR Doc. 2018–15812 Filed 7–24–18; 8:45 am] 

BILLING CODE 3510–22–P; 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2018–0006; 

Docket No. 180202112–8112–01; 

4500030113] 

RIN 1018–BC88; 0648–BH42 

Endangered and Threatened Wildlife 

and Plants; Revision of the 

Regulations for Listing Species and 

Designating Critical Habitat 

AGENCIES: U.S. Fish and Wildlife 

Service, Interior; National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: We, 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 revise 

portions of our regulations that 

implement section 4 of the Endangered 

Species Act of 1973, as amended (Act). 

The proposed revisions to the 

regulations clarify, interpret, and 

implement portions of the Act 

concerning the procedures and criteria 

used for listing or removing species 

from the Lists of Endangered and 

Threatened Wildlife and Plants and 

designating critical habitat. We also 

propose to make multiple technical 

revisions to update existing sections or 

to refer appropriately to other sections. 

DATES: We will accept comments from 

all interested parties until September 

24, 2018. 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–2018–0006, 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 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–HQ–ES–2018– 

0006; U.S. Fish & Wildlife Service, MS: 

BPHC, 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 http://

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: 

Bridget Fahey, U.S. Fish and Wildlife 

Service, Division of Conservation and 

Classification, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, telephone 

703/358–2171; or Samuel D. Rauch, III, 

National Marine Fisheries Service, 

Office of Protected Resources, 1315 

East-West Highway, Silver Spring, MD 

20910, telephone 301/427–8403. If you 

use a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800/877–8339. 

SUPPLEMENTARY INFORMATION: 


daltland on DSKBBV9HB2PROD with PROPOSALS