47868 Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 

PART 135—OPERATING 

REQUIREMENTS: COMMUTER AND 

ON DEMAND OPERATIONS AND 

RULES GOVERNING PERSONS ON 

BOARD SUCH AIRCRAFT 

7. The authority citation for part 135 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 41706, 44113, 

44701–44702, 44705, 44709, 44711–44713, 

44715–44717, 44722. 

8. Amend part 135 by adding a new 

§ 135.156 to read as follows: 

§ 135.156 Flight recorders—filtered data. 

(a) A flight data signal is filtered when 

an original sensor signal has been 

changed in any way, other than changes 

necessary to: 

(1) Accomplish analog to digital 

conversion of the signal; 

(2) Format a digital signal to be DFDR 

compatible; or 

(3) Eliminate a high frequency 

component of a signal that is outside the 

operational bandwidth of the sensor. 

(b) An original sensor signal for any 

flight recorder parameter required to be 

recorded under § 135.152 may be 

filtered only if the signal continues to 

meet the requirements of Appendix F of 

this part and—

(1) It represents a parameter described 

in § 135.152(h)(1) through (7), (9), (11) 

through (18), (26), (32), (42), (43), (68), 

(70), (77), or (88), and: 

(i) The certificate holder is able to 

demonstrate by test and analysis that 

the original sensor signal value can be 

reconstructed from the recorded data; 

(ii) The FAA determines that the 

procedure submitted by the certificate 

holder as its compliance with paragraph 

(b)(1)(i) of this section is repeatable; and 

(iii) The certificate holder maintains 

documentation of the procedure 

required to reconstruct the original 

sensor signal value; or 

(2) It represents a parameter described 

in § 135.152(h)(8), (10), (19) through 

(25), (27) through (31), (33) through (41), 

(44) through (67), (69), (71) through (76), 

or (78) through (87). 

(c) Compliance. After [four years from 

effective date], no aircraft flight data 

recording system may filter any 

parameter listed in paragraph (b)(1) of 

this section unless the certificate holder 

possesses test and analysis procedures 

that have been approved by the FAA. 

The procedures must be submitted to 

the FAA no later than the completion of 

the next heavy maintenance check after 

[six months after effective date] but not 

later than [two years after the effective 

date]. 

9. Amend appendix F to part 135 by 

revising the introductory text 

immediately following the appendix 

title to read as follows: 

Appendix F to Part 135—Airplane 

Flight Recorder Specifications 

The recorded values must meet the 

designated range, resolution and accuracy 

requirements during static and dynamic 

conditions. Dynamic condition means the 

parameter is experiencing change at the 

maximum rate available, including the 

maximum rate of reversal. All data recorded 

must be correlated in time to within one 

second. 

* * * * * 

Issued in Washington, DC, on July 24, 

2008. 

Dorenda D. Baker, 

Acting Director, Aircraft Certification Service. 

[FR Doc. E8–18933 Filed 8–14–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 402 

[FWS–R9–ES–2008–0093] 

RIN 1018–AT50 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 402 

[0808011023–81048–01] 

RIN 0618–AX15 

Interagency Cooperation Under the 

Endangered Species Act 

AGENCIES: U.S. Fish and Wildlife 

Service, Interior; National Marine 

Fisheries Service, Commerce. 

ACTION: Proposed rule. 

SUMMARY: The United States Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(collectively, ‘‘Services’’ or ‘‘we’’) 

propose to amend regulations governing 

interagency cooperation under the 

Endangered Species Act of 1973, as 

amended (Act). The Services are 

proposing these changes to clarify 

several definitions, to clarify when the 

section 7 regulations are applicable and 

the correct standards for effects analysis, 

and to establish time frames for the 

informal consultation process. 

DATES: We must receive your comments 

by September 15, 2008 to ensure their 

full consideration in the final decision 

on this proposal. 

ADDRESSES: Submit your comments or 

materials concerning this proposed rule 

in one of the following ways: 

(1) Through the Federal eRulemaking 

Portal at www.regulations.gov. Follow 

the instructions on the Web site for 

submitting comments. 

(2) By U.S. mail or hand-delivery to 

Public Comment Processing, Attention: 

1018–AT50, Division of Policy and 

Directives Management, U.S. Fish and 

Wildlife Service, 4401 North Fairfax 

Drive, Suite 222, Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Office of the Assistant Secretary for Fish 

and Wildlife and Parks, 1849 C Street, 

NW., Washington, DC 20240; telephone: 

202–208–4416; or James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910; telephone: 301–713–2332. 

SUPPLEMENTARY INFORMATION: 

Background 

The Endangered Species Act of 1973, 

as amended (‘‘Act’’; 16 U.S.C. 1531 et 

seq.) provides that the Secretaries of the 

Interior and Commerce (the 

‘‘Secretaries’’) 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 FWS 

and by the Secretary of Commerce 

through the Administrator of the 

National Oceanic and Atmospheric 

Administration to the Assistant 

Administrator for NMFS. 

There have been no comprehensive 

amendments to the Act since 1988. With 

the exception of two section 7 

counterpart regulations for specific 

types of consultations, there have been 

no comprehensive revisions to the 

implementing section 7 regulations 

since 1986. Since those regulations were 

issued, 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 many 

judicial decisions regarding almost 

every aspect of section 7 of the Act and 

its implementing regulations; and the 

Government Accountability Office has 

completed reviews of section 7 

implementation. 


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We also propose these regulatory 

changes in response to new challenges 

we face with regard to global warming 

and climate change. On May 15, 2008, 

Secretary of the Interior Dirk 

Kempthorne announced that he would 

propose common sense modifications to 

the section 7 regulations to provide 

greater clarity and certainty to the 

consultation process. Particularly as we 

are confronted with new and more 

complex issues, it is important that we 

have a section 7 consultation process 

that clearly sets out key definitions and 

the applicability of that process. As we 

negotiate the complexities of 

consultations in the 21st century, we 

need to have a regulatory framework 

that supplies guidance to shape those 

consultations as envisioned by the Act. 

A 2004 GAO report on interagency 

collaboration during section 7 

consultations found that although the 

Services had made improvements to the 

consultation process, it remained 

contentious between the Services and 

action agencies. In particular, the GAO 

found that action agencies continued to 

consider the consultation process 

burdensome. The GAO concluded that, 

given the unique requirements and 

circumstances of different species, a 

‘‘healthy dose of professional judgment’’

from the Services would always be 

required, meaning there would always 

be some disagreements. Nevertheless, 

the GAO also concluded that the 

process could still be improved, and 

specifically recommended that the 

Services and other Federal agencies 

‘‘resolve disagreements about when 

consultation is needed. * * *’’

The proposed regulations respond to 

this recommendation by allowing for a 

variety of documents prepared for other 

purposes to suffice for initiating 

consultation, and by allowing for action 

agencies to determine the effects of their 

own actions, without concurrence from 

the Service, in some very specific 

narrow situations. In addition, we 

propose to clarify the appropriate 

causation standard to be used in 

determining the effects of agency 

actions. Finally, we propose relatively 

minor procedural changes to ‘‘informal’’

consultations, including inserting time 

frames into the informal consultation 

process. 

In this preamble, we refer to the Fish 

and Wildlife Service as FWS and the 

National Marine Fisheries Service as 

NMFS. The word ‘‘Services’’ refers to 

both FWS and NMFS. We use the word 

‘‘Service’’ when we describe a situation 

that could apply to either agency. We 

use the term ‘‘current regulations’’ to 

reference the 1986 section 7 regulations 

found at 50 CFR Part 402. 

Proposed Changes to 50 CFR Part 402 

Section 402.02 Definitions 

This section sets out definitions of 

terms that are used throughout the 

regulations. Discussed below are those 

definitions that are modified from the 

current regulations. 

‘‘Biological Assessment.’’ We propose 

to add a sentence to the current 

regulatory definition of biological 

assessment to clarify that action 

agencies do not necessarily have to 

create a new document to comply with 

the requirement for a biological 

assessment. 50 CFR 402.12. If the 

information required to initiate 

consultation has been included in a 

document prepared for another purpose, 

we propose to allow action agencies to 

submit that document, rather than 

requiring them to create a new 

document to satisfy the requirements for 

initiating consultation as set out in 50 

CFR 402.14(c). Because the contents of 

the biological assessment are not 

prescribed by regulation but rather are 

at the ‘‘discretion of the Federal agency 

and will depend on the nature of the 

Federal action,’’ this is a minor 

procedural change that will increase 

efficiency for the Federal action agency 

without impairing the Services’ ability 

to perform their consultation role. See 

50 CFR 402.12(f). We note, however, 

that it will be the Federal action 

agency’s responsibility to describe with 

specificity where the relevant analyses 

for initiation of consultation can be 

found in the alternative document. 

‘‘Cumulative effects.’’ We propose to 

amend the current regulatory definition 

of cumulative effects to clarify that the 

definition of ‘‘cumulative effects’’ under 

section 7 of the Act is not the same as 

the use of ‘‘cumulative impacts’’ in the 

National Environmental Policy Act 

(‘‘NEPA’’; 42 U.S.C. 4321, et seq.). The 

current ESA regulatory definition of 

cumulative effects (and this proposed 

definition) is narrower than the NEPA 

regulatory definition of cumulative 

impacts. NEPA defines ‘‘cumulative 

impact’’ as ‘‘the impact on the 

environment which results from the 

incremental impact of the action when 

added to other past, present, and 

reasonably foreseeable future actions. 

***’’ 40 CFR 1508.7. The term as used 

in the NEPA context includes the effects 

of future Federal actions and includes 

future actions that are merely 

‘‘reasonably foreseeable’’ rather than 

reasonably certain to occur. 

We propose to further clarify that 

cumulative effects do not include future 

Federal activities. This is not a new 

concept; the current regulations also 

limit cumulative effects to future state 

or private actions. In fact, the preamble 

to the current regulations notes that 

‘‘Since all future Federal actions will at 

some point be subject to the section 7 

consultation process pursuant to these 

regulations, their effects on a particular 

species will be considered at that time 

and will not be included in the 

cumulative effect analysis.’’ 51 FR 

19932 (June 3, 1986). Finally, we note 

that the preamble language cited above 

also establishes that the standard of 

‘‘reasonably certain to occur’’ is an 

essential factor for both cumulative 

effects and indirect effects. 

‘‘Effects of the action.’’ We propose to 

amend the current regulatory definition 

of ‘‘effects of the action.’’ The current 

definition of ‘‘effects of the action’’

establishes that indirect effects are 

effects that are ‘‘later in time,’’ ‘‘caused 

by’’ the action under consultation, and 

‘‘reasonably certain to occur.’’ The 

current regulations, however, do not 

define ‘‘caused by’’ nor do they offer 

any guidance as to how to apply the 

phrase ‘‘reasonably certain to occur.’’

This lack of clarity has resulted in many 

disagreements between action agencies 

and the Services. We propose to offer 

more guidance in this definition as to 

what constitutes ‘‘caused by’’ and 

‘‘reasonably certain to occur’’ to ensure 

consistent application of what we 

believe are the current and appropriate 

definitions of these terms. 

Initially, we want to emphasize that 

both in the current regulations and these 

proposed regulations, an effect must 

both be caused by the action under 

consultation and must be ‘‘reasonably 

certain to occur’’ before it can be 

included in the effects analysis. It is a 

two-part test and both parts must be 

met. We propose to add language to the 

‘‘effects of the action’’ definition to 

define ‘‘indirect effects’’ as those effects 

‘‘for which the proposed action is an 

essential cause, and that are later in 

time, but still are reasonably certain to 

occur.’’ Further, we propose to add 

language to establish that reasonably 

certain to occur ‘‘is the standard used to 

determine the requisite confidence that 

an effect will happen. A conclusion that 

an effect is reasonably certain to occur 

must be based on clear and substantial 

information.’’ We are proposing this 

language to provide some additional 

clarity regarding the nature of the 

parameters for the effects analysis so 

that the effects analysis will focus on 

those effects that can meaningfully be 

considered in the context of the action 

under consultation. We believe this 

proposed added language will allow 

action agencies and the Services to 

determine more readily the effects of the 

action and thus to determine if the 


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action will jeopardize the species or 

adversely modify or destroy critical 

habitat, thereby focusing consultation 

on those effects that can be 

meaningfully addressed. This will 

simplify the consultation process and 

make it less burdensome and timeconsuming. 

We think it is appropriate to require 

that for an indirect effect to be 

considered as an effect of the action 

under consultation that action must be 

an ‘‘essential cause’’ of that effect. We 

propose to use the term ‘‘essential’’ to 

denote that the action is necessary for 

that effect to occur. That is, the effect 

would not occur ‘‘but for’’ the action 

under consultation and the action is 

indispensable to the effect. Our intent is 

to clarify that there must be a close 

causal connection between the action 

under consultation and the effect that is 

being evaluated. As we noted in our 

proposed language, ‘‘if an effect would 

occur whether or not the action takes 

place, the action is not a cause of the 

direct or indirect effect.’’ As discussed 

above, our intention with the proposed 

language is to limit the effects analysis 

only to those effects that are 

appropriate; if an effect would occur 

regardless of the action, then it is not 

appropriate to require the action agency 

to consider it an effect of the action. 

However, it may be appropriate to 

address it as it relates to the baseline or 

cumulative effects analysis. 

We propose to add the word 

‘‘essential’’ to capture the requirement 

that in some instances there needs to be 

more than a technical ‘‘but for’’

connection. For example, if the action 

under consultation is issuance of a U.S. 

Army Corps of Engineers (Corps) permit 

(in this example, the only Federal 

permit needed for the project) necessary 

to allow a lengthy pipeline to cross a 

narrow waterway, one could argue that 

‘‘but for’’ the Corps’ permit to cross the 

waterway, the pipeline could not be 

constructed and none of the future 

effects from the construction or 

operation of that lengthy pipeline would 

occur. Therefore, under this line of 

reasoning, in addition to considering the 

effects of the crossing (the permitted 

activity) on protected species in the 

area, the Corps would also have to 

consider the effects of the construction 

and operation of the entire pipeline on 

threatened or endangered species. But 

because the permitted crossing is not 

essential to the entire pipeline (e.g., the 

route and design of the pipeline for 

most of its length, except in the 

immediate vicinity of the crossing, is 

not determined by the crossing), it is no 

more than a marginal contributor to the 

effects of the construction and operation 

of that pipeline. In other words, there is 

an insufficient causal connection to 

attribute all of the future effects of the 

construction and operation of the 

pipeline to the Corps’ permit. 

On the other hand, an action to build 

a marina (in an area where there is 

currently no boat traffic) may also need 

a permit from the Corps. In this case, the 

permitted activity itself (building the 

marina) is an essential cause of the 

future effects (increased boat traffic) that 

are related to the building of the marina. 

The marina cannot be built without the 

permit, and the permit will largely 

determine the capacity, configuration, 

etc. of the entire marina, and therefore 

is an essential cause of any effects 

resulting from the building of the 

marina as permitted. By contrast, in the 

first example, the planned waterway 

crossing (the action under consultation) 

will not determine or even significantly 

affect the construction and operation of 

the pipeline except in the vicinity of the 

crossing. The crossing should not be 

seen, therefore, as an essential cause of 

future effects associated with the 

construction and operation of the entire 

pipeline. 

We also propose to add language to 

the definition of ‘‘effects of the action’’

to further explain that ‘‘reasonably 

certain to occur’’ is the standard used to 

determine that an effect will happen. As 

noted above, the ‘‘reasonably certain to 

occur’’ standard is in the current 

regulations. We propose to add the 

requirement that there be ‘‘clear and 

substantial information’’ that the effect 

will happen. Our intention is to make it 

clear that the effect cannot just be 

speculative and that it must be more 

than just likely to occur. We also intend 

to emphasize that ‘‘reasonably certain to 

occur’’ is not the equivalent of NEPA’s 

reasonably foreseeable standard. It is a 

narrower standard. 

We believe the proposed language to 

require ‘‘clear and substantial’’

information is within the intent of the 

current regulations. We note that the 

preamble to the current regulations 

discusses the difference between NEPA 

and the Act at length and concludes that 

‘‘Congress did not intend that Federal 

action be precluded by such speculative 

actions.’’ 51 FR 19932 (June 3, 1986). 

Further, the preamble discusses, with 

regard to cumulative effects, that the 

Federal agency and the Service must 

bear in mind the ‘‘economic, 

administrative, or legal hurdles which 

remain to be cleared’’ before 

determining if the standard of 

‘‘reasonably certain to occur’’ has been 

met. By proposing this language, we 

intend to endorse that preamble 

language and emphasize that there must 

be information, which is clear and 

substantial, that demonstrates that the 

effect is reasonably certain to occur. 

Section 402.03 Applicability 

This proposed section would define 

the applicability of these regulations. 

The current regulations state that 

section 7 applies to ‘‘all actions in 

which there is discretionary Federal 

involvement or control.’’ 50 CFR 402.03. 

The first sentence of paragraph (a) of 

this proposed section reiterates the 

constraint that section 7 only applies to 

discretionary agency actions. We note 

that the Supreme Court recently upheld 

the Services’ determination in the 

current regulations that section 7 

applies only to discretionary agency 

actions. National Home Builders v. 

Environmental Protection Agency, 127 

S. Ct. 2518 (2007). 

In paragraph (b), we propose to add 

new language to this section to delineate 

when section 7 is not applicable. For all 

the subparagraphs set out under 

paragraph (b) a threshold requirement is 

that no take is anticipated. Action 

agencies must be aware that when they 

make a determination that their action 

falls under one of the subparagraphs of 

paragraph (b), they are asserting that 

they do not anticipate take. 

In paragraph (b)(1) we propose to add 

language that action agencies are not 

required to consult on those actions for 

which they determine their action will 

have ‘‘no effect’’ on listed species or 

critical habitat. Although the current 

regulations do not explicitly state that 

consultation is not required when a 

Federal action agency determines that 

its action will have no effect on listed 

species or critical habitat, an evaluation 

of the current regulations makes it clear 

that no consultation was contemplated 

for these situations; the current 

regulations only require Federal action 

agency consultation when there is a 

determination that an action ‘‘may 

affect’’ a listed species or designated 

critical habitat. 50 CFR 402.14(a). By 

policy and practice the Services have 

consistently determined that 

consultation is not required when an 

action has no effect on listed species or 

critical habitat. 

In proposed paragraphs (b)(2) and (3), 

we intend to exclude from consultation 

those actions the effects of which are so 

inconsequential, uncertain, unlikely or 

beneficial that they are, as a practical 

matter, tantamount to having no effect 

on listed species or critical habitat. 

Again, an important threshold 

requirement for this subparagraph is 

that the action agency does not 

anticipate any take from the action 


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under consultation with regard to the 

effect in question. 

In proposed paragraph (b)(2), we 

propose to exclude from consultation 

actions that are ‘‘insignificant 

contributor[s]’’ to any effect on listed 

species or critical habitat. In proposed 

paragraph (b)(3), we propose to exclude 

from the consultation requirement those 

effects of an action that are not capable 

of being meaningfully identified or 

detected in a manner that permits 

evaluation; or, are wholly beneficial; or, 

are such that the potential risk of 

jeopardy to the listed species is remote. 

This proposed language broadly tracks 

language from the Services’ joint 

consultation handbook with regard to 

those actions that ‘‘may affect’’ but are 

‘‘not likely to adversely affect’’ (NLAA) 

listed species or critical habitat. The 

Final Endangered Species Consultation 

Handbook (March 1998) defines ‘‘not 

likely to adversely affect’’ as: 

* * * the appropriate conclusion 

when effects on listed species are 

expected to be discountable, 

insignificant, or completely beneficial. 

Beneficial effects are contemporaneous 

positive effects without any adverse 

effects to the species. Insignificant 

effects relate to the size of the impact 

and should never reach the scale where 

take occurs. Discountable effects are 

those extremely unlikely to occur. Based 

on best judgment, a person would not 

(1) be able to meaningfully measure, 

detect, or evaluate insignificant effects; 

or (2) expect discountable effects to 

occur. Final Endangered Species 

Consultation Handbook, March 1998, 

‘‘Glossary of Terms used in Section 7 

Consultations,’’ p. xv. 

Finally, we propose to add language 

to the applicability section by noting 

that if an action has one or more effects 

that fall outside paragraph (b) the 

Services and action agencies need only 

consider the effects that fall outside 

paragraph (b) when consulting on the 

action. The current regulations require 

that action agencies submit in writing a 

‘‘description of the manner in which the 

action may affect any listed species or 

critical habitat. * * *’’ 50 CFR 

402.14(c). We anticipate that an action 

agency can limit this description to 

those effects that fall outside of 

paragraph (b). 

The intent of these proposed 

exclusions is to reduce the number of 

unnecessary consultations. Under the 

current regulations, the type of effects 

set out in paragraph (b)(3) could require 

consultation; that is, an action agency 

must consult if the action ‘‘may affect’’

a listed species or critical habitat, 

although the action agency can submit 

a proposed ‘‘not likely to adversely 

affect’’ determination to the Service. 

The Service can then concur with that 

determination and the consultation 

obligation is satisfied for the action 

agency. 50 CFR 402.14(b). In cases 

where the Service has concurred with a 

‘‘not likely to adversely affect’’

determination made by a Federal action 

agency, there would be no need for an 

incidental take statement because no 

take would be anticipated. There also 

would never be a jeopardy or an adverse 

modification determination because if 

the nature of the effects involved rose to 

that level, the Services would not 

concur. 

To achieve the goal of reducing 

unnecessary consultations, the proposed 

language allows a Federal action agency 

to make a ‘‘not likely to adversely 

affect’’ determination without 

concurrence from the Services in 

limited circumstances. The Services 

believe this is appropriate for several 

reasons. First, the Services see little 

value in consulting on actions that 

satisfy the criteria in proposed 

402.03(b), including no anticipated take, 

just as we see little value in consulting 

in ‘‘no effect’’ situations. Many Federal 

action agencies have now had decades 

of experience with section 7. The 

Services believe that Federal action 

agencies are fully qualified to make 

these determinations in the limited 

circumstances provided for in the 

proposed rule. In light of the 

tremendous workload and consumption 

of resources that consultations require, 

the Services believe it is not an efficient 

use of limited resources to review 

literally thousands of proposed Federal 

agency actions in which take is not 

anticipated and the potential effects are 

either insignificant, incapable of being 

meaningfully evaluated, wholly 

beneficial, or pose only a remote risk of 

causing jeopardy or adverse 

modification or destruction of critical 

habitat. The Services have determined 

that actions satisfying these criteria will 

not cause adverse effects on listed 

species and that Federal action agencies 

are qualified to determine that their 

actions satisfy these criteria. Finally, 

Federal action agencies have strong 

incentives to make these determinations 

accurately. Federal action agencies are 

well aware that take is not authorized 

without an incidental take statement 

(which can only be obtained through 

formal consultation) and that ultimately 

it is they who must ensure that it is not 

likely that their action will jeopardize 

the continued existence of listed species 

or adversely modify or destroy 

designated critical habitat. 

The Services are proposing these 

changes to the applicability of section 7 

as part of our administrative authority 

and interpretive authority under the 

Act. The Services have the authority to 

determine what constitutes 

‘‘consultation’’ and when consultation 

is triggered. Section 7(a)(2) of the Act 

requires that Federal action agencies, in 

consultation with the Secretary, ensure 

that their actions are not likely to 

jeopardize the continued existence of 

listed species or adversely modify or 

destroy critical habitat. But, the Act 

does not define ‘‘consultation’’ nor does 

it define when the consultation 

obligation is triggered. Congress left the 

crafting of the consultation process, 

including the trigger for consultations, 

with the Services. See Sweet Home v. 

Babbitt, 515 U.S. 687, 708 (1995) 

(Congress delegated broad 

administrative and interpretive power to 

the Secretary in the Act to define terms). 

In 1986, using our administrative and 

interpretive authority, the Service 

promulgated general consultation 

regulations (the ‘‘current regulations’’) 

that established a tiered consultation 

process. 50 CFR 402.01–402.16. These 

regulations, not the Act, established a 

‘‘may affect’’ trigger for consultations, 

an informal level of consultation for 

actions that are ‘‘not likely to adversely 

affect’’ and formal consultation for those 

actions that are likely to adversely affect 

listed species or critical habitat. Under 

the current regulations, a Federal action 

agency can determine that its action is 

not likely to adversely affect listed 

species or designated critical habitat but 

then must seek and gain concurrence 

from the Services. 

In 1986, this tiered process made 

sense. Very few Federal action agencies 

had any in-depth expertise with section 

7 and listed species. For that matter, the 

more complex consultation process was 

relatively new to the Services as well. 

We erred on the side of over inclusion 

because our consultation experience 

and history was so limited at that time. 

After decades of experience and literally 

thousands of consultations per year, 

however, we have concluded that there 

is no gain in requiring Federal action 

agencies to consult, even informally, for 

those potential effects described in 

proposed paragraphs (b)(2) and (b)(3). 

We recognize that Federal action 

agencies have more expertise now than 

in 1986 and are much more aware of the 

consequences and significance of their 

findings. That is, Federal action 

agencies are more informed about the 

Act as a whole and more aware of the 

ramifications of not making 

conscientious and thoughtful 

determinations under the Act. Federal 

action agencies understand that there 

are significant consequences if they 


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47872 Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 

were to take an action that resulted in 

prohibited take without an exemption 

through the section 7 process. Further, 

the Federal action agencies will 

continue to have the option of ‘‘informal 

consultation’’ under 50 CFR 402.13 for 

those situations when an action does 

not satisfy the criteria of 402.03(b) or the 

action agency seeks the Services’

expertise. 

These regulations would reinforce the 

Services’ current view that there is no 

requirement to consult on greenhouse 

gas (GHG) emissions’ contribution to 

global warming and its associated 

impacts on listed species (e.g., polar 

bears). 

For example, when a Federal agency 

provides funding for a new highway, 

vehicle use of the highway may result 

in changes in GHG emissions. The 

proposed revisions make explicit that 

while the impact of tailpipe emissions 

on local air pollution could be an effect 

of the action, the GHG emissions’

contribution to global warming and 

associated impacts to listed species (e.g., 

polar bears) are not, and the effects of 

those impacts would not need to be 

considered in any consultation. 

First, GHG emissions from building 

one highway are not an ‘‘essential 

cause’’ of any impacts associated with 

global warming. Moreover, any such 

effects are later in time, but are not 

reasonably certain to occur (i.e., a 

finding that an effect is reasonably 

certain to occur must be based on clear 

and substantial information, cannot be 

speculative, and must be more than just 

likely to occur). For both reasons, 

impacts associated with global warming 

do not constitute ‘‘effects of the action’’

under the proposed revision to that 

definition. See proposed 50 CFR 402.02, 

402.03(b)(1), (c). 

Even if these impacts would 

otherwise fall within the definition of 

‘‘effects of the action,’’ they need not be 

considered in any consultation because 

under the proposed Applicability 

section the building of one highway is 

‘‘an insignificant contributor’’ to any 

such impacts. Further, any impacts 

associated with the GHG emissions from 

the building of one highway are ‘‘not 

capable of being meaningfully identified 

or detected in a manner that permits 

evaluation’’ and ‘‘are such that the 

potential risk of jeopardy to the listed 

species or adverse modification or 

destruction of the critical habitat [from 

those GHG emissions] is remote.’’ See 

proposed 50 CFR 402.03(b)(2)–(3), (c). 

For the reasons discussed above, the 

Services believe the proposed changes 

to the current regulations are 

appropriate. Further, we believe them to 

be in compliance with the Act. As 

discussed above, the Act does not set 

the requirement for consultation. 

Rather, the Act requires that Federal 

action agencies consult with the 

Secretary to ensure that their actions are 

not likely to jeopardize listed species or 

adversely modify or destroy designated 

critical habitat. The Act then requires 

the Secretary to issue an opinion to help 

action agencies meet this obligation of 

ensuring that it is not likely that their 

action will result in jeopardy or adverse 

modification or destruction of critical 

habitat. For the reasons discussed 

above, just as we have determined in the 

past that an opinion from the Secretary 

is not necessary for ‘‘no effect’’ actions, 

we believe the Secretary’s opinion is not 

necessary for those potential effects set 

out in proposed paragraphs (b)(2) and 

(b)(3). 

Section 402.13 Informal Consultation 

We have retained this section for 

those cases when an action does not 

satisfy the criteria of 402.03(b) or the 

action agency seeks the Services’

expertise. We propose to add language 

that informal consultation can include 

‘‘a number of similar actions, an agency 

program, or a segment of a 

comprehensive plan.’’ This proposed 

language is similar to language found 

under formal consultation in 50 CFR 

402.14(c). Here, however, we do not 

propose to require the Director’s 

approval, as the regulations do for 

formal consultation. We believe this is 

appropriate because informal 

consultation, even for grouped actions, 

would never be sufficient for actions 

that are expected to result in take or in 

the destruction or adverse modification 

of critical habitat or for an action that 

was likely to jeopardize the continued 

existence of the species. The analysis, 

then, should be less complex than what 

would be necessary for formal 

consultation. 

In new proposed paragraph (b), we 

propose to add time deadlines to help 

limit the duration of informal 

consultation and lend greater certainty 

to the process. Specifically, we propose 

to allow action agencies to terminate 

consultation if the Service has not acted 

on its request for concurrence within 60 

days. We are proposing, however, to 

allow the Services to advise the action 

agency that 60 days is not enough time 

to review the request for concurrence. In 

those cases, the Service would receive 

60 more days to review the request for 

concurrence. Finally, we propose to 

allow the action agency to terminate the 

consultation, with written notice to the 

Service, if there is no written 

determination from the Service within 

the appropriate time frame. 

We believe this proposal to be 

reasonable because an action agency 

would only be requesting concurrence 

for actions that are not expected ever to 

jeopardize the continued existence of a 

listed species or result in adverse 

modification or destruction of critical 

habitat. Only in situations where no 

take is anticipated would an agency 

request a concurrence on a not likely to 

adversely affect determination through 

informal consultation. Without the 

proposed time limitations, informal 

consultations can actually become 

longer and more drawn out than formal 

consultations. It is our hope that the 

new deadlines will make informal 

consultation a shorter, more efficient 

and more predictable process, as it was 

intended to be. Finally, we believe the 

proposed language which allows for 

action agencies to terminate 

consultation if the action agency does 

not receive a determination from the 

Service within the specified time frame 

is appropriate under the narrow 

circumstances in which it would come 

into play. The Services request 

comment on this provision and on the 

appropriate status with respect to 

concurrence of actions for which 

informal consultation is terminated 

pursuant to the proposed text. 

Section 402.14 Formal Consultation 

We propose a minor change to this 

section to reflect changes in the 

informal consultation sections of the 

regulations. Specifically, we propose to 

change the ‘‘exception’’ language in 

§ 402.14 to note that informal 

consultation may be concluded without 

the written concurrence of the Director 

under the circumstances in § 402.13(b). 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, we have determined that this 

document is a significant rule. As such, 

it was reviewed by the Office of 

Management and Budget (OMB) and 

other interested Federal agencies. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 


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jurisdictions), unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Regulatory Flexibility Act requires 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Pursuant to the Regulatory Flexibility 

Act, the Secretaries of the Interior and 

Commerce certify that this regulation 

will not have a significant economic 

impact on a substantial number of small 

entities. The rule applies only to Federal 

agencies and does not regulate, either 

directly or indirectly, any small entities. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. 

Although this rule is a significant action 

under Executive Order 12866, it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

seq.): 

(a) These regulations will not 

‘‘significantly or uniquely’’ affect small 

governments. A Small Government 

Agency Plan is not required. We expect 

that these regulations will not result in 

any significant additional expenditures 

by entities that develop formalized 

conservation efforts. 

(b) These regulations will not produce 

a Federal mandate on State, local, or 

tribal governments or the private sector 

of $100 million or greater in any year; 

that is, it is not a ‘‘significant regulatory 

action’’ under the Unfunded Mandates 

Reform Act. These regulations impose 

no obligations on State, local, or tribal 

governments. 

Takings 

In accordance with Executive Order 

12630, these regulations do not have 

significant takings implications. These 

regulations have no impact on personal 

property rights. 

Federalism 

In accordance with Executive Order 

13132, these regulations do not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Commerce regulations 

under section 7 of the Act, we 

coordinated development of these 

regulations with appropriate resource 

agencies throughout the United States. 

Civil Justice Reform 

In accordance with Executive Order 

12988, this rule does not unduly burden 

the judicial system and meets the 

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

of the Order. We promulgate these 

regulations consistent with the Act. 

Paperwork Reduction Act 

This rule will not impose any new 

requirements for collection of 

information that require approval by the 

OMB under the Paperwork Reduction 

Act (44 U.S.C. 3501 et seq.). This rule 

will not impose new recordkeeping or 

reporting requirements on State or local 

governments, individuals, businesses, or 

organizations. We may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

Control Number. 

National Environmental Policy Act 

The Services will conduct an analysis 

pursuant to the National Environmental 

Policy Act prior to finalizing these 

proposed regulations. The FWS and 

NMFS are considered the lead Federal 

agencies for the preparation of this 

proposed rule, pursuant to 40 CFR part 

1501. 

Clarity of This 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: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) 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. 

Public Comments 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. On May 15, the 

Secretary of the Interior (Secretary) 

announced that the Department of the 

Interior would propose common sense 

modifications to the section 7 

regulations to provide greater clarity 

and certainty to the consultation 

process. We believe that as we are 

confronted with new and increasingly 

complex issues, it is important to have 

a section 7 consultation process that sets 

out key definitions in a timely and 

expeditious manner. Therefore, given 

the need for timely action and 

consistent with existing policy, the 

Services have determined that a public 

comment period of 30 days is 

appropriate. Moreover, given the narrow 

scope of the proposed revisions, we 

believe a 30 day public comment period 

provides the public with a reasonable 

opportunity to review the proposal and 

prepare comments. We must receive 

your comments by the date specified in 

the DATES section to ensure their full 

consideration in the final decision on 

this proposal. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Government-to-Government 

Relationship With Indian Tribes 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); E.O. 

13175; and the Department of the 

Interior’s 512 DM 2, we understand that 

we must relate to recognized Federal 

Indian Tribes on a Government-toGovernment basis. These regulations 

apply only to Federal agencies, not 

Indian Tribes. To the extent that Federal 

actions requiring consultation may 


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indirectly affect Tribes, the regulations 

are intended only to streamline the 

administration of the Act; not to change 

any substantive requirements 

concerning protection of listed species; 

therefore, any indirect effect would be 

minimal. 

List of Subjects in 50 CFR Part 402 

Endangered and threatened species. 

Dated: August 11, 2008. 

Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and 

Parks, Department of the Interior. 

Dated: August 11, 2008. 

Samuel D. Rauch, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration. 

For the reasons set forth in the 

preamble, the Services propose to 

amend part 402, title 50 of the Code of 

Federal Regulations as follows: 

PART 402—INTERAGENCY 

COOPERATION—ENDANGERED 

SPECIES ACT OF 1973, AS AMENDED 

1. The authority for part 402 

continues to read as follows: 

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

2. In § 402.02 revise the definitions for 

‘‘Biological assessment,’’ ‘‘Cumulative 

effects,’’ and ‘‘Effects of the action’’ to 

read as follows: 

§ 402.02 Definitions. 

* * * * * 

‘‘Biological assessment’’ means the 

information prepared by or under the 

direction of the Federal agency 

concerning listed and proposed species 

and designated and proposed critical 

habitat that may be present in the action 

area and the evaluation of potential 

effects of the action on such species and 

habitat. A biological assessment may be 

a document prepared for the sole 

purpose of interagency consultation, or 

it may be a document or documents 

prepared for other purposes (e.g., an 

environmental assessment or 

environmental impact statement) 

containing the information required to 

initiate consultation. 

* * * * * 

‘‘Cumulative effects’’ means those 

effects of future State or private 

activities, not involving Federal 

activities, that are reasonably certain to 

occur within the action area of the 

particular Federal action subject to 

consultation. Cumulative effects do not 

include future Federal activities that are 

physically located within the action 

area of the particular Federal action 

under consultation. 

* * * * * 

‘‘Effects of the action’’ means the 

direct and indirect effects of an action 

on the species or critical habitat, 

together with the effects of other 

activities that are interrelated or 

interdependent with that action, that 

will be added to the environmental 

baseline. The environmental baseline 

includes the past and present impacts of 

all Federal, State, or private actions and 

other human activities in the action 

area, the anticipated impacts of all 

proposed Federal projects in the action 

area that have already undergone formal 

or early section 7 consultation, and the 

impact of State or private actions which 

are contemporaneous with the 

consultation in process. Indirect effects 

are those for which the proposed action 

is an essential cause, and that are later 

in time, but still are reasonably certain 

to occur. If an effect will occur whether 

or not the action takes place, the action 

is not a cause of the direct or indirect 

effect. Reasonably certain to occur is the 

standard used to determine the requisite 

confidence that an effect will happen. A 

conclusion that an effect is reasonably 

certain to occur must be based on clear 

and substantial information. Interrelated 

actions are those that are part of a larger 

action and depend on the larger action 

for their justification. Interdependent 

actions are those that have no 

independent utility apart from the 

action under consideration. 

* * * * * 

3. Revise § 402.03 to read as follows: 

§ 402.03 Applicability. 

(a) Section 7 of the Act and the 

requirements of this part apply to all 

actions in which the Federal agency has 

discretionary involvement or control. 

(b) Federal agencies are not required 

to consult on an action when the direct 

and indirect effects of that action are not 

anticipated to result in take and: 

(1) Such action has no effect on a 

listed species or critical habitat; or 

(2) Such action is an insignificant 

contributor to any effects on a listed 

species or critical habitat; or 

(3) The effects of such action on a 

listed species or critical habitat: 

(i) Are not capable of being 

meaningfully identified or detected in a 

manner that permits evaluation; 

(ii) Are wholly beneficial; or 

(iii) Are such that the potential risk of 

jeopardy to the listed species or adverse 

modification or destruction of the 

critical habitat is remote. 

(c) If all of the effects of an action fall 

within paragraph (b) of this section, 

then no consultation is required for the 

action. If one or more but not all of the 

effects of an action fall within paragraph 

(b) of this section, then consultation is 

required only for those effects of the 

action that do not fall within paragraph 

(b) of this section. 

4. Revise § 402.13 to read as follows: 

§ 402.13 Informal consultation. 

(a) Informal consultation is an 

optional process that includes all 

discussions, correspondence, etc., 

between the Service and the Federal 

agency or the designated non-Federal 

representative, designed to assist the 

Federal agency in determining whether 

formal consultation or a conference is 

required. If during informal consultation 

it is determined by the Federal agency 

that the action, or a number of similar 

actions, an agency program, or a 

segment of a comprehensive plan, is not 

likely to adversely affect listed species 

or critical habitat, the consultation 

process is terminated, and no further 

action is necessary, if the Service 

concurs in writing. For all requests for 

informal consultation, the Federal 

agency shall consider the effects of the 

action as a whole on all listed species 

and critical habitats. 

(b) If the Service has not provided a 

written statement regarding whether it 

concurs with a Federal agency’s 

determination provided for in paragraph 

(a) of this section within 60 days 

following the date of the Federal 

agency’s request for concurrence, the 

Federal agency may, upon written 

notice to the Service, terminate 

consultation. The Service may, upon 

written notice to the Federal agency 

within the 60-day period, extend the 

time for informal consultation for a 

period no greater than an additional 60 

days from the end of the 60-day period. 

(c) During informal consultation, the 

Service may suggest modifications to 

the action that the Federal agency and 

any applicant could implement to avoid 

the likelihood of adverse effects to listed 

species or critical habitat. 

5. In § 402.14 revise paragraphs (a) 

and (b)(1) to read as follows: 

§ 402.14 Formal consultation. 

(a) Requirement for formal 

consultation. Each Federal agency shall 

review its actions at the earliest possible 

time to determine whether any action 

may affect listed species or critical 

habitat. If such a determination is made, 

formal consultation is required, except 

as noted in paragraph (b) of this section. 

The Director may request a Federal 

agency to enter into consultation if he 

identifies any action of that agency that 

may affect listed species or critical 


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habitat and for which there has been no 

consultation. When such a request is 

made, the Director shall forward to the 

Federal agency a written explanation of 

the basis for the request. 

(b) Exceptions. (1) A Federal agency 

need not initiate formal consultation if, 

as a result of the preparation of a 

biological assessment under § 402.12 or 

as a result of informal consultation with 

the Service under § 402.13, the Federal 

agency determines that the proposed 

action is not likely to adversely affect 

any listed species or critical habitat, and 

the Director concurs in writing or 

informal consultation has terminated 

under § 402.13(b) without a written 

determination by the Service as to 

whether it concurs; 

* * * * * 

[FR Doc. E8–18938 Filed 8–13–08; 11:15 am] 

BILLING CODE 4310–55–P 


rwilkins on PROD1PC63 with PROPOSALS