[Federal Register: December 8, 2003 (Volume 68, Number 235)]
[Rules and Regulations]
[Page 68254-68265]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de03-5]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
RIN 1018-AJ02
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. 030506115-3298-02]
RIN 0648-AR05
Joint Counterpart Endangered Species Act Section 7 Consultation
Regulations
AGENCIES: U.S. Fish and Wildlife Service, Interior; Bureau of Land
Management, Interior; National Park Service, Interior; Bureau of Indian
Affairs, Interior; Forest Service, Agriculture; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Final rule.
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SUMMARY: This final rule codifies joint counterpart regulations for
consultation under section 7 of the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (ESA), to streamline consultation on
proposed projects that support the National Fire Plan (NFP), an
interagency strategy approved in 2000 to reduce risks of catastrophic
wildland fires and restore fire-adapted ecosystems. These counterpart
regulations were developed, as part of the President's Healthy Forests
Initiative announced in August 2002, by the U.S. Department of the
Interior's Fish and Wildlife Service (FWS) and the U.S. Department of
Commerce's National Oceanic and Atmospheric Administration, National
Marine Fisheries Service (NMFS) (singly or jointly, Service), in
cooperation with the U.S. Department of Agriculture's Forest Service
(FS) and the Department of
[[Page 68255]]
Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management
(BLM), and National Park Service (NPS). These counterpart regulations,
authorized in general at 50 CFR 402.04, provide an optional alternative
to the existing section 7 consultation process described in 50 CFR part
402, subparts A and B. The counterpart regulations complement the
general consultation regulations in part 402 by providing an
alternative process for completing section 7 consultation for agency
projects that authorize, fund, or carry out actions that support the
NFP. The alternative consultation process contained in these
counterpart regulations eliminates the need to conduct informal
consultation and eliminates the requirement to obtain written
concurrence from the Service for those NFP actions that the Action
Agency determines are ``not likely to adversely affect'' (NLAA) any
listed species or designated critical habitat.
DATES: This rule is effective on January 7, 2004.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Division of
Consultation, Habitat Conservation Planning, Recovery and State Grants,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420,
Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Chief, Division of
Consultation, Habitat Conservation Planning, Recovery and State Grants,
at the above address (Telephone 703/358-2171, Facsimile 703/358-1735)
or Phil Williams, Chief, Endangered Species Division, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910 (301/713-1401; facsimile 301/713-
0376).
SUPPLEMENTARY INFORMATION:
Background
Implementation of National Fire Plan
In response to several years of catastrophic wildland fires
throughout the United States culminating in the particularly severe
fire season in 2000, when over 6.5 million acres of wildland areas
burned, President Clinton directed the Departments of the Interior and
Agriculture to develop a report outlining a new approach to managing
wildland fires and restoring fire-adapted ecosystems. The report,
entitled Managing the Impact of Wildfires on Communities and the
Environment, was issued September 8, 2000. This report set forth ways
to reduce the impacts of fires on rural communities, a short-term plan
for rehabilitation of fire-damaged ecosystems, and ways to limit the
introduction of invasive species and address natural restoration
processes. The report, and the accompanying budget requests,
strategies, plans, and direction, have become known as the NFP. The NFP
is intended to reduce risk to communities and natural resources from
wildland fires through rehabilitation, restoration and maintenance of
fire-adapted ecosystems, and by the reduction of accumulated fuels or
highly combustible fuels on forests, woodlands, grasslands, and
rangelands.
In August 2002, during another severe wildland fire season in which
over 7.1 million acres of wildlands burned, President Bush announced
the Healthy Forests Initiative. The initiative was intended to
accelerate implementation of the fuels reduction and ecosystem
restoration goals of the NFP in order to minimize the damage caused by
catastrophic wildfires by reducing unnecessary regulatory obstacles
that have at times delayed and frustrated active land management
activities. Because of nearly a century of policies to exclude fire
from performing its historical role in shaping plant communities, fires
in our public forests and rangelands now threaten people, communities,
and natural resources in ways never before seen in our Nation's
history.
Many of the Nation's forests and rangelands have become unnaturally
dense as a result of past fire suppression policies. Today's forests
contain previously unrecorded levels of fuels, while highly flammable
invasive species now pervade many rangelands. As a result, ecosystem
health has suffered significantly across much of the Nation. When
coupled with seasonal droughts, these unhealthy forests and rangelands,
overloaded with fuels, are vulnerable to unnaturally severe wildland
fires. The geographic scope of the problem is enormous, with estimates
approaching 200 million acres of forest and rangeland at risk of
catastrophic fire. The problem has been building across the landscape
for decades. Its sheer size makes it impossible to treat all the acres
needing attention in a few years or even within the next decade.
In 2002 alone, the Nation experienced over 88,000 wildland fires
that cost the Federal Government $1.6 billion to suppress. Many of
these wildfires significantly impacted threatened or endangered
species. The Biscuit Fire burned an area of 499,570 acres in Oregon and
California that included 49 nest sites and 50,000 acres of designated
critical habitat for the threatened northern spotted owl, and 14
nesting areas and 96,000 acres of designated critical habitat for the
threatened marbled murrelet. The estimated fire suppression cost was
$134,924,847. The Rodeo-Chediski fire in Arizona, the largest fire in
the State's post-settlement history, burned through 462,614 acres,
including 20 nesting areas for the threatened Mexican spotted owl.
Unless fuel loads can be reduced on the thousands of acres classified
at high risk of catastrophic wildfires, more adverse effects like those
of the 2002 fire season are certain to occur.
The long-term strategy for the NFP is to correct problems
associated with the disruption of natural fire cycles as a result of
fire suppression policy or the presence of fire-prone non-native
invasive species and to minimize risks to public safety and private
property due to the increase in amount and complexity of the urban/
wildland interface. The NFP calls for a substantial increase in the
number of acres treated annually to reduce unnaturally high fuel
levels, which will decrease the risks to communities and to the
environment caused by unplanned and unwanted wildland fire. These types
of preventative actions will help ensure public safety and fulfill the
goals of the President's Healthy Forests Initiative.
The FS, BIA, BLM, and NPS, as Federal land management agencies,
play an important role in implementing actions under the NFP that will
reduce the potential risks of catastrophic wildland fire. The FWS also
develops and carries out actions in support of the NFP on National
Wildlife Refuges or National Fish Hatcheries. These five agencies
constitute the Action Agencies who may use the counterpart regulations
contained herein. The types of projects being conducted by these
agencies under the NFP include prescribed fire (including naturally
occurring wildland fires managed to benefit resources), mechanical
fuels treatments (thinning and removal of fuels to prescribed
objectives), emergency stabilization, burned area rehabilitation, road
maintenance and operation activities, ecosystem restoration, and
culvert replacement actions. Prompt implementation of these types of
actions will substantially improve the condition of the Nation's
forests and rangelands and substantially diminish potential losses of
human lives and property caused by wildland fires. The Service and the
Action Agencies are adopting these counterpart regulations to
accelerate the rate at which these types of activities can be
implemented so that the likelihood of catastrophic wildland fires is
reduced.
[[Page 68256]]
Federal Fuels Treatment Activities
Each of the Action Agencies has substantial experience in planning
and implementing projects that further the goals of reducing risks
associated with wildland fires, while improving the condition of our
public lands and wildlife habitat. The FS works collaboratively with
its partners to design and implement projects to meet a variety of land
and resource management objectives, including projects to improve
habitat for wildlife and fish species. Through several hundred
rehabilitation, restoration and hazardous fuels reduction projects
under the NFP, the FS treats over 2 million acres each year to benefit
natural resources, people, and communities. All of these projects have
long-term multiple resource benefits, and several have short-term
wildlife benefits as well. On the Winema and Fremont National Forests
in Oregon, a thousand acres of forest were thinned and underburned to
protect stands and large trees from wildfire, and to increase the
longevity of those trees used by bald eagles for nesting and roosting.
On the Santa Fe National Forest in New Mexico, after habitat loss due
to the Cerro Grande Fire, ground cover in the form of large fallen
woody material was restored to benefit the Jemez Mountain salamander.
Habitat that had been damaged by post-wildland fire debris flows has
been restored to reduce erosion and benefit Yellowstone cutthroat trout
on the Custer National Forest in Montana. On the Jefferson National
Forest in Virginia, prescribed fire is used every 3 years on Mt. Rogers
to maintain the grassy bald area in a grass-forb stage and prevent
woody vegetation from becoming established that would out compete rare
plant species. Similarly, on the National Forests in Mississippi,
prescribed burning reduces woody vegetation and fuels, encourages fire-
dependent perennials, and restores and expands remnants of native
prairie.
The BIA has planned many beneficial projects under the NFP that are
designed to reduce wildland fire risk on Indian lands and to increase
public safety around tribal and non-tribal communities. For example,
one project will utilize both mechanical treatments and prescribed fire
in lodgepole pine and Engelmann spruce forests to reduce fuel loadings
and protect residents and residences around the Blackfeet Indian
Reservation communities of East Glacier, Little Badger, Babb, St. Mary,
Heart Butte, and Kiowa, in northwestern Montana. A second project would
also utilize mechanical treatments and prescribed fire to reduce fuel
loadings in Douglas-fir, ponderosa pine, and grass fuel types that pose
a high level of risk to the residents around the Rocky Boy's Indian
Reservation communities of Box Elder Village, Box Elder Creek, Rocky
Boy Townsite, Duck Creek, and Parker Canyon, in Central Montana. A
third project would reduce fuels in about 1,300 acres of pine, juniper,
oak, and grasses, by combining prescribed fire with mechanical fuels
treatment techniques on Zuni Tribal forest and woodland resources in
New Mexico. This project would create fuel breaks in large contiguous
fuels that are at high risk for catastrophic wildfires. Finally, a
fourth project will stabilize and rehabilitate 276,000 acres of White
Mountain Apache Tribal lands severely damaged in the Rodeo-Chediski
Fire. This project will reduce the potential threats to human life and
property in surrounding communities, along with threats to cultural
resources, water quantity and quality, and soil productivity.
Across the Nation, NPS is implementing numerous projects to support
the goals of the NFP. Park superintendents use prescribed fire
(including wildland fire), mechanical fuels treatments, and invasive
species control to restore or maintain natural ecosystems, to mitigate
the effects of past fire suppression policies, and to protect
communities from catastrophic wildfires. NPS fire management and
restoration efforts generally focus on restoring ecosystem processes
rather than on the management of specific species. However, these
projects provide important long-term habitat benefits to a variety of
threatened or endangered species. For example, Great Smoky Mountains
National Park is completing a 1,034-acre yellow pine restoration burn,
the largest prescribed burn in the Park's history. The central purpose
of the Park's use of fire is to replicate as nearly as possible the
role that naturally occurring fires played in shaping and maintaining
the Park's biologically diverse ecosystems, while also minimizing the
risk of future wildfires. At Washita Battlefield National Historic
Site, the use of prescribed fire is intended to restore and maintain
grassland/prairie habitats in a healthy condition. The operation was an
interagency effort between the FS and the NPS. Similarly, Gulf Islands
National Seashore has conducted prescribed burns for habitat
restoration and to reduce hazardous fuels. These burns both restore key
vegetative communities and provide habitat for relocated gopher
tortoises. Other projects have improved habitat for red-cockaded
woodpeckers at Big Thicket National Preserve and bald eagles at
Lavabeds National Monument. All of these fuels treatment projects will
enhance public safety for the communities around the Parks.
The BLM is proceeding with many NFP projects to restore dense
pinyon pine and juniper forests and woodlands, nearly devoid of
understory shrubs, grasses, and forbs, to a more natural savannah, or
open woodland conditions. In the Farmington Field Office, New Mexico,
the Pump Mesa project is a multiple phase project to open up the pinyon
pine and juniper forest canopy by thinning, wood removal, and
prescribed burning, to make space, sunlight, water, and nutrients
available for the manual seeding of native understory species that were
formerly present on the site. Densities of trees in the pinyon pine
systems have increased to the point that large proportions of these
woodlands have become highly combustible, supporting crown fires that
can produce catastrophic habitat loss for wildlife and high risk to
nearby communities. In the Richfield Field Office, the Praetor Slope
Fuel Reduction project will mechanically displace patches of juniper
and sagebrush to reduce the risk created by large, dense contiguous
areas of fuel, while creating valuable deer and elk range, complete
with islands and feathered woodlands that provide necessary animal
cover. In the Central Montana Fire Management Zone, a number of small
and moderate-sized prescribed burns, such as in Cow Creek, Little Bull
Whacker, and Fergus Triangle, have been completed to increase wildlife
habitat diversity, reduce fuel loads, and increase forage for both
livestock and wildlife.
Endangered Species Act Section 7 Consultation
Section 7(a)(2) of the ESA requires that each Federal agency shall,
in consultation with and with the assistance of the Service, insure
that any action it authorizes, funds, or carries out is not likely to
jeopardize the continued existence of any listed species or result in
destruction or adverse modification of designated critical habitat.
Section 7(b) of the ESA describes the consultation process, which is
further developed in regulations at 50 CFR 402.
The existing ESA section 7 regulations require an action agency to
complete formal consultation with the Service on any proposed action
that may affect a listed species or designated critical habitat, unless
following either a biological assessment or informal
[[Page 68257]]
consultation with the Service, the action agency makes a determination
that a proposed action is ``not likely to adversely affect'' any listed
species or designated critical habitat and obtains written concurrence
from the Service for the NLAA determination. The alternative
consultation process contained in these counterpart regulations will
allow the Service to provide training, oversight, and monitoring to an
Action Agency through an alternative consultation agreement (ACA) that
enables the Action Agency to make an NLAA determination for a project
implementing the NFP without informal consultation or written
concurrence from the Service.
Using the existing consultation process, the Action Agencies have
consulted with the Service on many thousands of proposed actions that
ultimately received written concurrence from the Service for NLAA
determinations. Those projects had only insignificant or beneficial
effects on listed species or posed a discountable risk of adverse
effects. The concurrence process for such projects has diverted some of
the consultation resources of the Service from projects in greater need
of consultation. With the anticipated increase in fire plan projects,
the concurrence process could cause delays. These counterpart
regulations are being implemented to proactively reduce these
anticipated delays and to increase the Service's capability to focus on
Federal actions requiring formal consultation by eliminating the
requirement to provide written concurrence for actions within the scope
of these counterpart regulations.
The Action Agencies have engaged in thousands of formal and
informal consultations with the Service in the 30 years since the
passage of the ESA, and have developed substantial scientific,
planning, mitigation, and other expertise to support informed decision-
making and to meet their responsibilities under ESA section 7 to avoid
jeopardy and contribute to recovery of listed species. To meet their
obligations, the Action Agencies employ large staffs of qualified,
experienced, and professional wildlife biologists, fisheries
biologists, botanists, and ecologists to help design, evaluate, and
implement proposed activities carried out under land use and resource
management plans. All of the Action Agencies consult with the Service
on actions that implement land use and resource management plans that
contribute to the recovery of proposed and listed species and the
ecosystems upon which they depend. In particular, the informal
consultation and concurrence process has given the Action Agencies
considerable familiarity with the standards for making NLAA
determinations for their proposed actions.
The Action Agencies have developed familiarity with the standards
over time through various activities. The Action Agencies develop
proposals and evaluate several thousand actions for possible effects to
listed species and designated critical habitat. Agency biologists are
members of listed species recovery teams, contribute to management
plans that provide specific objectives and guidelines to help recover
and protect listed species and designated critical habitat, and
cooperate on a continuing basis with Service personnel. In many parts
of the country, personnel from the Action Agencies and the Service
participate in regular meetings to identify new management projects and
the effects to proposed and listed species through formalized
streamlined consultation procedures.
The Action Agencies' established biological expertise and active
participation in the consultation process provides a solid base of
knowledge and understanding of how to implement section 7 of the ESA.
By taking advantage of this expertise within the Action Agencies, the
counterpart regulations process will help ensure more timely and
efficient decisions on planned NFP actions while retaining the
protection for listed species and designated critical habitat required
by the ESA and other applicable regulations. The Service can rely upon
the expertise of the Action Agencies to make NLAA determinations that
are consistent with the ESA and its implementing regulations. Moreover,
the Action Agencies are committed to implementing this authority in a
manner that will be equally as protective of listed species and
designated critical habitat as the current procedures that require
written concurrence from the Service.
The Healthy Forests Initiative builds from the recognition that
more timely environmental reviews of proposed fire plan projects will
provide greater benefits to the range, forest lands, and wildlife by
reducing the risk of catastrophic wildfire while the reviews are
pending. These counterpart regulations provide an additional tool for
accomplishing faster reviews. Streamlining the NLAA concurrence process
offers a significant opportunity to accelerate NFP projects while
providing equal or greater protection of the resources. Under current
procedures, the Action Agencies must already complete and document a
full ESA analysis to reach an NLAA determination. The counterpart
regulations permit a project to proceed following an Action Agency's
NLAA determination without an overlapping review by the Service, where
the Service has provided specific training and oversight to achieve
comparability between the Action Agency's determination and the likely
outcome of an overlapping review by the Service. These counterpart
regulations should significantly accelerate planning, review, and
implementation of NFP actions, and by doing so, should contribute to
achieving the habitat management and ecosystem restoration activities
contemplated under the NFP.
Summary of Comments Received
On June 5, 2003 (68 FR 33806), we proposed the rule that would
establish the joint counterpart regulations for consultation under
section 7 of the ESA to streamline consultation on proposed projects
that support the NFP. The comment period closed on August 4, 2003. On
October 9, 2003 (68 FR 58298), we reopened the comment period on the
proposed rule and provided a notice of availability for the
Environmental Assessment. The second comment period closed on November
10, 2003. During these two comment periods, the Service received more
than 50,000 comments on the proposed rule from a large variety of
entities, including State, County, Tribal agencies, industry,
conservation groups, religious groups, coalitions, and private
individuals. The Service and the Action Agencies considered all of the
information and recommendations received from all interested parties on
the proposed regulation during the public comment period and
appreciated the comments received on the proposed rule. The Service
received numerous comments on the scope of the National Fire Plan, for
example, appropriate fire cycles, thinning and restoration practices,
which were beyond the narrow scope of the proposed rulemaking for the
counterpart regulations.
The following is a summary of the comments on the proposed
counterpart regulations, and the Service's response.
State and Tribe Comments
We received comments from three States and two Tribal agencies.
Issue: One State recommended including the State fish and wildlife
agencies during the development of the ACAs and, where appropriate,
during the development of documentation in support of NLAA
determinations. Including the States would better ensure
[[Page 68258]]
that the best available scientific information is used during the
determination analysis by the Action Agencies.
Response: We agree that the State agencies likely have biological
information that will be relevant in making an NLAA determination. The
Services currently have a joint policy (59 FR 34275) in which we
request any information from the State that might be relevant, as well
as notify the State of any action that might adversely affect any
proposed or listed species or designated critical habitat. The Service
will encourage each of the Action Agencies to embrace this policy as a
component of the ACA.
Issue: One State, and several commenters, expressed concern that
this proposed regulation does not go far enough to improve the overall
efficiency of the consultation process and, therefore, should be opened
up to all projects, not just fire plan projects. A few commenters
suggested including the Corps of Engineers and Environmental Protection
Agency in the list of Action Agencies.
Response: These counterpart regulations have been proposed as part
of the President's Healthy Forests Initiative to accelerate the rate at
which fire plan projects can be implemented. Once these counterpart
regulations are adopted and implemented, the Services believe that
other agencies may decide that similar counterpart regulations would
help to expedite other types of actions. The EPA has already published
an advance notice of rulemaking for developing counterpart regulations
for pesticides (68 FR 3785, January 24, 2003). The Services will take
up any such proposals from other agencies in the future as
circumstances may warrant.
Issue: One State and several commenters were concerned that these
counterpart regulations relieve the Service of its duties and the
resources that will be spent creating a new process could be used more
efficiently by the Service to carry out its duties under the ESA.
Response: We agree that the Services will likely experience a small
short-term increase in administrative burden as they begin to implement
the training and oversight components of the regulations and ACAs.
However, this short term burden will be more than balanced out by a
substantial long term increase in Service efficiency resulting from a
reduction in resources required to review projects that ultimately
receive a NLAA concurrence letter. We believe that by removing the need
to provide NLAA concurrence letters on NFP projects, the Services will
be able to devote greater resources to analyzing and coordinating on
projects that do have adverse effects on listed species and designated
critical habitat. We believe this shift in resources will not only
accelerate NFP projects, but will also generally expedite consultations
on other projects, which will make the most efficient use of the
Services time. This will ultimately provide more conservation to listed
species, thus fulfilling the objectives of the ESA.
Issue: The two Tribal comments stated that the Action Agency will
still need to complete a biological assessment for its action. In
addition, both tribal commenters requested government-to-government
consultation.
Response: We agree that an Action Agency will still need to
complete a biological assessment for an action when required by the
ESA. The regulations at 50 CFR 402.12 require the preparation of a
biological assessment for those Federal actions that are ``major
construction activities.'' Given that these counterpart regulations
only address those fire plan projects that are not likely to adversely
affect listed species or critical habitat, we do not anticipate that a
large majority of these actions would otherwise require preparation of
a biological assessment.
The standards for making an NLAA determination remain unchanged by
these counterpart regulations. These counterpart regulations do not
change the analysis that is conducted for determining how a proposed
project affects listed species or critical habitat. Therefore, this
counterpart regulation will maintain the same level of protection for
listed species or designated critical habitat. As such, we do not
believe that tribal resources will be affected by implementation of
this rule and government-to-government consultation is not necessary at
this stage in the process.
General Comments
Issue: Many commenters felt that the proposed counterpart
regulations will give some interest groups, such as logging companies
and other commercial interests, free reign over public land, which will
increase commercial timber sales, and that this result is not in the
best interest of the species or the public.
Response: This regulation will apply only to those projects that
are within the scope of the NFP and are not likely to adversely affect
listed species or critical habitat. Commercial timber sales that
adversely affect listed species and designated critical habitat will
still need to be analyzed through formal consultation. We believe that
implementation of the counterpart regulations will allow the Service to
focus its efforts on Federal actions that are likely to adversely
affect listed species and critical habitat. This will ultimately
benefit listed species.
Issue: Several commenters noted that the proposed rule has failed
to offer any empirical evidence substantiating the claim that the
regulatory obstacles have unnecessarily delayed active land management
activities.
Response: The Healthy Forests Initiative is intended to accelerate
implementation of the fuels reduction and ecosystem restoration goals
of the NFP in order to minimize damage caused by catastrophic
wildfires. Accordingly, the issue is not whether the regulatory process
has delayed NFP projects, but rather whether it can be streamlined so
as to expedite the projects. The number of consultations conducted for
NFP projects is currently relatively low; however the Service
anticipates that the number of consultations requested for projects
that implement the NFP will increase substantially in the future, as
additional funding and effort is directed toward implementation of the
NFP. Due to the beneficial effects that this initiative will have to
fish and wildlife resources, the Services are ensuring that actions
supporting the NFP that are NLAA listed species or critical habitat are
not delayed.
Issue: Many commenters believe that the Action Agencies do not have
the expertise to make the determinations without concurrence from the
Service. They believe that the Service is the expert agency and without
the Service's input many of the decisions will have a negative impact
on listed species. In particular, the commenters believe that the
Action Agencies do not know the biology of the species or the other
indirect or cumulative effects that should be factored into the
analysis.
Response: The Action Agencies employ large staffs of professional
wildlife biologists, botanists, and ecologists to meet their
obligations under the Act and other natural resource management laws
they implement. The primary responsibility of these professionals is to
evaluate how proposed projects will affect listed species and critical
habitat.
The counterpart regulations contain a process for making sure that
the Action Agencies have the necessary skills to make the NLAA
determinations without Service concurrence. First, the Service and the
Action Agencies will jointly develop a training program that will
[[Page 68259]]
allow each Action Agency's staff to develop and maintain the same
skills that the Service has in making the NLAA determinations. Second,
the ACA will include provisions for incorporating new information on
currently listed species and new species and critical habitat into the
Action Agency's effects analysis of proposed actions. These two
provisions of the ACA will provide the Action Agency with the same
expertise and information that the Service possesses. This process will
maximize the use of the Service and Action Agencies' resources by
incorporating this additional knowledge into the Action Agencies'
current wealth of expertise.
Issue: One commenter noted that both the Service and NMFS have
policies regarding the use of high quality scientific and commercial
data in making decisions. FS and BLM do not have similar policies
presenting a challenge to prevent them from making the best decisions
possible. One commenter noted that streamlining to speed up
accomplishments of one goal may result in decisions being made on
inadequate data, lack of perspective on other goals and values, and
lack of knowledge of other alternatives, therefore risking failure of
making sound and wise decisions. Many commenters believe that, by
eliminating the Service, the Action Agencies will not make sound
decisions; that is, they will not be considering all of the facts and
possible ramifications.
Response: Section 7 of the ESA requires that each agency shall use
the best available scientific and commercial information. This standard
applies to any analysis that the Action Agency may make, as well as the
Service. It is the responsibility of the Action Agency to become aware
of all of the information necessary to make the determinations. In
signing the ACA, the Action Agency is agreeing to take on the
responsibility of making decisions using the best scientific and
commercial data available. It is common practice for the Service and
the Action Agency to share information in the field, and we expect this
practice will continue with the implementation of these counterpart
regulations.
The jointly developed training program will allow the Action Agency
staff to develop and maintain the same skills that the Service has in
making the NLAA determinations. In addition, the Service will retain
oversight authority and, through the periodic review and the monitoring
program, will evaluate whether the Action Agency has implemented the
regulation consistent with the best available scientific and commercial
information, the ESA, and the section 7 regulations.
Issue: Several commenters stated that the definition of NFP project
is overly broad and the Action Agencies could grant discretion to
undertake projects that are directly at odds with the philosophy and
purpose of the NFP.
Response: The definition according to the counterpart regulations
of a fire plan project is ``an action determined by the Action Agency
to be within the scope of the NFP as defined in this section.'' The
Action Agency will have the responsibility to justify whether any
action it is undertaking falls within the NFP scope. Several examples
of typical projects, such as mechanical treatments or prescribed fire,
are listed in the preamble for the regulation. While the definition is
broad, the Action Agency will ultimately have to determine if the
action will further the goals of the NFP to reduce risks associated
with wildland fires, while improving the condition of our public lands
and wildlife habitat.
Issue: Many commenters believe that the different missions between
the Action Agencies and the Service will not allow the Action Agencies
to make decisions that would be ``equally as protective of listed
species and critical habitat.'' In fact many commenters noted that
historically, the action agencies have pursued environmentally damaging
projects that were in direct conflict with their own policy. Many
commenters suggested that eliminating the Service concurrence is like
asking the fox to watch the henhouse. One State noted that they believe
the elimination of oversight and environmental review will allow the
Action Agencies to abuse the discretion.
Response: The Action Agencies are legally obligated to implement
the ESA, and have large staffs of professional biologists fully able to
do so. These counterpart regulations do not change the standards that
apply in assessing the effects of the action. As stated in Sec. 402.31
of the counterpart regulations, the process established in the
counterpart regulation will be as protective to listed species and
designated critical habitat as the process established in subpart B of
the regulations.
As discussed in the oversight section, Sec. 402.34, the Service
Director retains discretion to terminate the ACA if the Action Agency
fails to comply with the requirements of the counterpart regulations,
section 7 of the Act, or the terms of the ACA. Therefore, we believe
that sufficient training, monitoring, and oversight is built in to the
process to ensure that the Action Agencies will appropriately implement
their responsibilities under section 7 and these regulations.
Issue: Several commenters noted that informal consultation allows
the Service to work with the Action Agency to reduce the adverse
effects of a project on listed species or critical habitat. Those
instances where the Service does not concur with the Action Agencies
are the very reason for the consultation with the expert wildlife
agencies. Many commenters summarized this thought by stating that the
counterpart regulations will eliminate the checks and balances inherent
in the Act.
Response: These proposed counterpart regulations do not eliminate
the Action Agency's ability to request informal consultation or to
engage in day-to-day technical assistance with the Service when making
NLAA determinations on fire plan projects. Some commenters may have
misconstrued the ultimate use of this authority, which is for actions
that support the NFP that are NLAA only. The section 7 standards remain
unchanged by the counterpart regulations.
In addition, through the oversight provisions of Sec. 402.34, the
Service will work with the Action Agencies to determine whether the
Action Agency is implementing the regulation accordingly.
Issue: A couple of commenters thought the Service should make
organizational or structural changes to expedite the review process.
One commenter suggested a process comprised of a series of stages that
would increase the complexity of analysis, if warranted. Another
commenter suggested that the process could be further streamlined by
using a programmatic consultation approach.
Response: The Service considered administrative changes and
agreements that would help streamline reviews in the Environmental
Assessment for the Counterpart Regulations, September 30, 2003. As
discussed in the EA, the Service and the Action Agencies currently have
several agreements in place. While such agreements streamline the
process significantly by improving coordination between the consulting
agencies, the process still requires involvement of the Service in the
concurrence decisions on projects that are NLAA listed species or
critical habitat. These types of streamlining processes can work well
to meet statutory timelines, but they still encumber the Service's
biologists in requiring concurrences for NLAA actions and thereby
diverting their attention from actions that require formal
consultation. We believe these
[[Page 68260]]
counterpart regulations will accelerate the process of approval for
fire plan projects and allow the Service to devote more time to
analyzing and coordinating on projects that have adverse effects on
listed species and designated critical habitat.
Issue: A few commenters suggested using the counterpart regulation
to also modify the timeline for formal consultation. At a minimum, it
was suggested to set a deadline that is shorter than 90 days for the
consultation and 45 days for preparation of the biological opinion.
In addition, a couple of commenters suggested that the counterpart
regulation is governed only by the statute and therefore the final
regulation could change the NLAA standard such that any project with
net benefits is not likely to adversely affect. The commenters noted
that, without this modification, the proposed rule will likely be
inefficient to streamline consultation. In addition, the rule should be
allowed to change the threshold levels for ``may affect.''
Response: The focus of the counterpart regulations was to provide
an optional alternative to the standard section 7 consultation process
that would be consistent with 50 CFR 402.04. The Service is not
constrained by the statutory language in that it may (and often does)
complete consultations in less than 90 days. The Service has already
issued clarifying policy about the importance of considering the long-
term benefits of fuel reduction projects such that revising the NLAA
standards as part of these regulations is unnecessary to accomplish the
goal of streamlining for the Healthy Forests Initiative.
Issue: Contractors of the Action Agency and local governments
should be allowed to be a full participant in the consultation process
from beginning to end.
Response: This regulation does not change the statutory or
regulatory process for applicants to participate in the consultation.
We expect that applicants will continue to have participation in the
areas of the consultation process that are appropriate.
Issue: Many commenters believe that adoption of this counterpart
regulation violates the plain language of the statute, which states
that ``each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action * * *''.
Specifically, they assert that the proposed counterpart regulations
violate sections 7(a)(2), 7(a)(4) and 7(b). By allowing the Action
Agencies to reach their own conclusions without the Service
concurrence, the Service would not be allowed to provide reasonable and
prudent alternatives, reasonable and prudent measures, or to conduct a
jeopardy analysis.
Response: The Services have concluded that the counterpart
regulation does not violate the language or spirit of the ESA. The
counterpart regulation makes no changes to the statutory requirement
for formal consultation on agency actions that are likely to adversely
affect listed species or designated critical habitat. The counterpart
regulation builds upon the fundamental distinction in the current
Subpart B consultation regulations between the formal consultation
required for more significant projects and the lesser form of
consultation required for actions that are not likely to adversely
affect listed species or designated critical habitat. Neither informal
consultation nor NLAA concurrence is specified in the ESA. The
counterpart regulation creates a new, carefully-structured training,
monitoring and oversight relationship between the Service and the
Action Agency as an alternative for the individual project-based
concurrence system that was created in the Subpart B regulatory
framework. The counterpart regulation creates a system where the Action
Agency is trained and supervised to perform NLAA determinations just as
the Service would in a concurrence letter, with less delay and equal
protection for listed species and designated critical habitat.
The Service believes that through implementation of the ACA and
through the oversight discussed in Sec. 402.34, the counterpart
regulations comply with the statute, and the Action Agencies are
insuring, in consultation with and with assistance of the Secretary,
that any action is not likely to jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of critical habitat. Through the periodic review and monitoring
program, the Service will provide assistance to the Action Agency by
recommending changes to the Action Agency's implementation of the ACA,
if necessary. Consultation will continue to occur through the
implementation of the ACAs and the ongoing review and monitoring
program.
Issue: One commenter believed that the proposed rule violates
section 7(c)(1) of the ESA. The commenter suggested that 7(c) places a
mandatory duty on Federal Action Agencies to initiate consultation and
communication with the Service on all projects.
Response: Section 7(c) of the Act requires each Federal Agency to
prepare a biological assessment for the purpose of identifying any
endangered or threatened species, which is likely to be affected by an
action. Consistent with congressional intent (H.R. Conf. Rep. 96-697,
1979), the regulations at 50 CFR 402.12 specify that this requirement
applies only to those Federal actions that are ``major construction
activities.'' Given that these counterpart regulations address only
those fire plan projects that are not likely to adversely affect listed
species or critical habitat, we do not anticipate a large majority of
these actions would otherwise require preparation of a biological
assessment.
Section-by-Section Analysis
Procedures
Issue: Several commenters suggested that the ACAs should be subject
to a 60-day public review and comment period. A few commenters noted
that the rule is also unclear as to whether the ACAs are subject to
NEPA. Many commenters were concerned that the timetable for developing
the ACAs would prolong the implementation of the rule. One commenter
suggested that the ACAs should be developed prior to finalization of
the counterpart regulations.
Response: The ACAs will be made available to the public as stated
in the proposed rule. The details of the individual ACAs will conform
to the elements described in the procedures section. The individual
ACAs will most likely be categorically excluded from the NEPA
requirements. However, with any categorical exclusion, conditions at
the time may warrant more environmental analysis consistent with the
Action Agencies' requirement to identify extraordinary circumstances
under 40 CFR 1508.4. The NEPA determination will be made at the time
the individual ACAs are proposed. The Service anticipates that
development of the ACAs, for those Action Agencies that want to
implement the counterpart regulations, will begin immediately following
finalization of the counterpart regulations.
Issue: Many commenters believed that the details outlined in the
regulations regarding training, standards, incorporating new
information, and the periodic monitoring and program evaluation should
be specified in the regulation and not the ACA.
Response: The Service and the Action Agencies wanted to allow
maximum flexibility for each individual Action Agency's needs with
regard to the specific requirements in the ACA. For
[[Page 68261]]
instance, the training program for the Forest Service nationwide, which
has had extensive experience with section 7 consultation, may be
different from the BIA nationwide in which several districts may have
more experience than others. Allowing the details of, the training
program for example, to be further discussed in the ACA allows for the
program to be tailored for each particular Action Agency.
Staff Positions
Issue: One commenter believes that the ACA should list the Action
Agency staff making the determinations by name including their academic
and professional experience. Then the Service should make sure their
skill level is appropriate to make the determinations.
Response: The counterpart regulations and the subsequent ACAs have
established a system whereby the Action Agency can make the
determinations without concurrence by the Service. The Action Agencies
are committed to implementing this authority in a manner that will be
equally protective of listed species and critical habitat as the
current procedures. In implementing the ACA, the Action Agency will
retain full responsibility for compliance with section 7 of the ESA.
Given that responsibility, the Action Agency will determine the
appropriate skill level for making the determinations.
Training
Issue: Several commenters acknowledged that the Action Agencies
already employ the biological expertise necessary to make the NLAA
determination; therefore, the training program does not need to be
complex, and instead there should be a procedure to certify personnel
without training. One commenter suggested just having periodic
refresher courses.
Response: While we agree that the Action Agencies already have
familiarity with the standards for making an NLAA determination, we
believe that a focused training program that discusses how the Service
analyzes the NLAA determination when concurrence is requested will
achieve an even higher level of protection for listed species and
designated critical habitat.
Issue: One commenter suggested that the training program should
include principles of conservation biology, the life history of the
species of which the determinations will be made, animal ecology, plant
ecology, and environmental impact analysis.
Response: The Action Agencies currently make the NLAA
determinations based on the recommendations from professional
biologists who are employed or contracted by the Action Agencies. The
training program envisioned in the counterpart regulation will focus on
the fundamental aspects of section 7 that the Action Agency staff will
need to understand when making the NLAA determination without the
Service concurrence.
Standards
Issue: One State and a few other commenters suggested that uniform
national standards should be in the regulation not the ACA, including
the specific standards and procedures for implementing the ACA and
assuring that the direct and indirect effects of the proposed action
will not have an adverse effect on listed species.
Response: The overall standards for making an NLAA determination
remain unchanged by these counterpart regulations. The ACA will include
specific standards that the individual Action Agency will be applying
in assessing the effects of the action. Since the ACAs are between the
Service and the individual Action Agency, the specific standards in
each ACA can be more individualized for the fire plan projects that
each Action Agency may undertake.
Issue: Several commenters noted that any standard developed for
effects analysis should not result in a new consultation process that
produces unnecessarily lengthy, detailed analyses or require analyses
that seek data that are nonexistent or unreliable.
Response: The Service and the Action Agencies agree. The purpose of
the counterpart regulations is to accelerate the process of approving
NFP projects by reducing the time and effort needed to conduct a
consultation for NFP activity that is not likely to adversely affect
listed species or designated critical habitat. These counterpart
regulations will not change the section 7 standards, only the process
by which consultation is conducted.
Monitoring
Issue: One commenter suggested that the periodic review and
monitoring program should have on-site audits that occur quarterly and
audits of the NLAA decisions that are conducted monthly, with a
corrective action plan prepared by the Action Agency, if warranted. If
the corrective action plan is not submitted on time, the ACA is
automatically void.
Response: The Service and the Action Agencies will determine the
most appropriate periodic review and monitoring program for each
individual Action Agency. The counterpart regulations do contemplate,
if appropriate, the termination of the ACA.
Issue: One commenter suggested that the Action Agencies should
conduct the monitoring and periodic review program and then provide the
Service with a report.
Response: The Service believes that, to maintain oversight over the
program, the periodic review and monitoring must be done jointly
between the Service and the Action Agency. This will allow the Service
to recommend whether the terms of the ACA should be modified.
Oversight
Issue: The two State commenters, the tribes, and a number of other
commenters believe that specific information should be included to
clarify under what conditions an Action Agency's ACA may be suspended
or revoked should the Action Agencies fail to meet their new ESA
responsibilities.
Response: We anticipate that the ACA will provide the detail,
specific to each Action Agency, for the periodic review and monitoring
program. The agencies anticipate that the details of such items as
timing and procedures will be described in the ACA. In addition, the
ACA will specify the information that will be necessary to provide for
the periodic review. Section 402.33(a)(2)(vi) specifically states that
the Action Agency will be responsible for maintaining the necessary
records to allow the Service to complete the periodic program
evaluation. The Oversight section of the counterpart regulations
discusses the standards that the Service will use to evaluate the
Action Agencies' implementation of the regulation.
Issue: Several commenters believe that enforcement of the ACA will
be problematic because suspension of an ACA resulting from failure to
comply will not affect the validity of prior NLAA determinations. If an
Action Agency is found violating the mandate of section 7, such a
violation will have no bearing upon past projects enabled by the
violation. One commenter suggested simply changing 402.34 to ``Service
Director is required to terminate the ACA if * * *''
Response: We disagree that enforcement will be an issue. The Action
Agencies must comply with the terms of the ACA and the counterpart
regulations prescribe the remedy for any failure by an Action Agency to
comply
[[Page 68262]]
with the terms of the ACA. If, through the periodic review and
monitoring program, the Service determines that implementation of this
regulation is not consistent with the best available information, the
ESA, or the section 7 regulations, then the Service will work with the
Action Agency to correct the issue. If the consistency issues persist,
the Service Director has the ability to terminate the ACA for an
individual sub-unit of the Action Agency. This should not call into
question any of the other sub-units' determinations or any of the
determinations prior to the issue at hand. The Service Director always
retains discretion to terminate the ACA with the Action Agency if it
fails to comply with the requirements of this subpart, section 7 of the
ESA, or the terms of the ACA. The terms of the ACA are intended to be
enforceable only through the remedies available to the Services under
the counterpart regulations.
Revisions to the Proposed Rule
In Sec. 402.31, we changed ``The purpose of these counterpart
regulations is to improve the consultation * * *'' to read, ``The
purpose of these counterpart regulations is to enhance the efficiency
and effectiveness of the consultation * * *.'' The change is made to
clarify that the intent of these counterpart regulations is to
accelerate the rate at which fire plan projects are processed without
changing the section 7 consultation standards.
Description/Overview of the Final Rule
Regulations at 50 CFR 402.04 provide that ``the consultation
procedures may be superseded for a particular Federal agency by joint
counterpart regulations among that agency, the Fish and Wildlife
Service, and the National Marine Fisheries Service.'' The preamble to
the 1986 regulations for implementing section 7 of the ESA states that
``such counterpart regulations must retain the overall degree of
protection afforded listed species required by the [ESA] and these
regulations. Changes in the general consultation process must be
designed to enhance its efficiency without elimination of ultimate
Federal agency responsibility for compliance with section 7.'' The
approach in these counterpart regulations is consistent with Sec.
402.04 because it leaves the standards for making NLAA determinations
unchanged. The joint counterpart regulations establish an optional
alternative process to conduct consultation under section 7 of the ESA
for actions that the FS, BIA, BLM, FWS, or NPS might authorize, fund,
or carry out to implement the NFP. The procedures outlined in these
counterpart regulations differ from the existing procedures in 50 CFR
part 402 subparts A and B, Sec. 402.13 and Sec. 402.14(b), by
allowing an Action Agency to enter into an ACA with the Service that
will allow the Action Agency to make an NLAA determination on a
proposed NFP project without informal consultation or written
concurrence from the Service. Further, Action Agencies operating under
these counterpart regulations retain full responsibility for compliance
with section 7 of the ESA.
Under the counterpart regulations, the Action Agencies will enter
into an ACA with either FWS, NMFS or both. The ACA will include: (1) A
list or description of the staff positions within the Action Agency
that will have authority to make NLAA determinations; (2) a program for
developing and maintaining the skills necessary within the Action
Agency to make NLAA determinations, including a jointly developed
training program based on the needs of the Action Agency; (3)
provisions for incorporating new information and newly listed species
or designated critical habitat into the Action Agency's effects
analysis on proposed actions; (4) provisions for the Action Agency to
maintain a list of fire plan projects that received NLAA determinations
under the agreement; and (5) a mutually agreed upon program for
monitoring and periodic program evaluations. By following the
procedures in these counterpart regulations and the ACA, the Action
Agencies fulfill their ESA section 7 consultation responsibility for
actions covered under these regulations.
The purpose of the jointly developed training program between the
Action Agency and the Service is to ensure that the Action Agency
consistently interprets and applies the relevant provisions of the ESA
and the regulations (50 CFR part 402) relevant to these counterpart
regulations with the expectation that the Action Agency will reach the
same conclusions as the Service. We expect that the training program
will be consistent among Action Agencies, subject to differing needs
and requirements of each agency, and will rely upon the ESA
Consultation Handbook as much as possible. The training program may
include jointly developed guidelines for conducting the ESA section 7
effects analysis for the particular listed species and critical habitat
that occur in the jurisdiction of the Action Agency requesting the
agreement. Training may also emphasize the use of project design
criteria for listed species where they have been developed between the
Service and the Action Agency.
Because the Service maintains information on listed species, the
Service may supply any new information it receives that would be
relevant to the effects analysis that the Action Agencies will conduct
to make the NLAA determinations. In addition, the Service will
coordinate with the Action Agency when new species are proposed for
listing or new critical habitat is proposed.
The Service will use monitoring and periodic program reviews to
evaluate an Action Agency's performance under the ACA at the end of the
first year of implementation and then at intervals specified in the
ACA. The evaluation may be on a subunit basis (e.g., a particular
National Forest or BLM district) where different subunits of an Action
Agency begin implementation of the ACA at different times. The Service
will evaluate whether the implementation of this regulation by the
Action Agency is consistent with the best available scientific and
commercial information, the ESA, and section 7 regulations. The result
of the periodic program review may be to recommend changes to the
Action Agency's implementation of the ACA. These recommendations could
include suspending or excluding any participating Action Agency
subunit, but more likely may include additional training. The Service
will retain discretion for terminating the ACA if the requirements
under the counterpart regulations are not met. However, any such
suspension, exclusion, or termination will not affect the legal
validity of NLAA determinations made prior to the suspension,
exclusion, or termination.
Upon completion of an ACA, the Action Agency and the Service will
implement the training program outlined in the ACA. At the Action
Agency's discretion, the training program may be designed such that
some subunits may begin implementing the ACA before agency personnel in
other subunits are fully trained. The Action Agency will assume full
responsibility for the adequacy of the NLAA determinations that it
makes.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal or policy issues, and
was reviewed by the Office of Management and Budget
[[Page 68263]]
(OMB) in accordance with the four criteria discussed below.
(a) This counterpart regulation will not have an annual economic
effect of $100 million or more or adversely affect an economic sector,
productivity, jobs, the environment, or other units of government. The
counterpart regulations do not pertain to commercial products or
activities or anything traded in the marketplace.
(b) This counterpart regulation is not expected to create
inconsistencies with other agencies' actions. FWS and NMFS are
responsible for carrying out the Act.
(c) This counterpart regulation is not expected to significantly
affect entitlements, grants, user fees, loan programs, or the rights
and obligations of their recipients.
(d) OMB has determined that this rule may raise novel legal or
policy issues and, as a result, this rule has undergone OMB review.
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 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, we certified to the
Small Business Administration that these regulations would not have a
significant economic impact on a substantial number of small entities.
The purpose of the rule is to increase the efficiency of the ESA
section 7 consultation process for those activities conducted to
implement the NFP. The changes will lead to the same protections for
listed species as the section 7 consultation regulations at 50 CFR part
402 and will only eliminate the need for the Action Agency to conduct
informal consultation with and obtain written concurrence from the
Service for those NFP actions that the Action Agency determines are
``not likely to adversely affect'' (NLAA) any listed species or
designated critical habitat.
Regulations at 50 CFR 402.04 provide that ``the consultation
procedures may be superseded for a particular Federal agency by joint
counterpart regulations among that agency, the Fish and Wildlife
Service, and the National Marine Fisheries Service.'' The preamble to
the 1986 regulations for implementing section 7 states that ``such
counterpart regulations must retain the overall degree of protection
afforded listed species required by the [ESA] and these regulations.
Changes in the general consultation process must be designed to enhance
its efficiency without elimination of ultimate Federal agency
responsibility for compliance with section 7.''
Under the counterpart regulations, the Action Agencies will enter
into an Alternative Consultation Agreement (ACA) with either or both of
the Services as appropriate. The ACA will include: (1) A list or
description of the staff positions within the Action Agency that will
have authority to make NLAA determinations; (2) a program for
developing and maintaining the skills necessary within the Action
Agency to make NLAA determinations, including a jointly developed
training program based on the needs of the Action Agency; (3)
provisions for incorporating new information and newly listed species
or designated critical habitat into the Action Agency's effects
analysis on proposed actions; (4) provisions for the Action Agency to
maintain a list of fire plan projects that received NLAA determinations
under the agreement; and (5) a mutually agreed upon program for
monitoring and periodic program evaluations. The purpose of the
training program is to ensure the Action Agency consistently interprets
and applies the relevant provisions of the ESA and regulations (50 CFR
402), with the expectation that the Action Agency will reach the same
conclusion as the Service.
This rule will not have a significant economic impact on a
substantial number of small entities for the following reasons: (1) The
joint counterpart ESA section 7 regulations apply only to ESA section 7
determinations made by one of the five Federal Action Agencies that
implement the NFP; (2) the rule will only remove the requirement for
the Action Agencies to conduct informal consultation with and obtain
written concurrence from FWS or NMFS on those NFP actions they
determine that are NLAA listed species or designated critical habitat;
and (3) the regulations are designed to reduce potential economic
burdens on the Services and Action Agencies by improving the efficiency
of the process. Therefore, we certify that this action will not have a
significant economic impact on a substantial number of small
businesses, organizations, or governments pursuant to the RFA.
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 counterpart regulations will not ``significantly or
uniquely'' affect small governments. A Small Government Agency Plan is
not required. We expect that these counterpart regulations will not
result in any significant additional expenditures.
(b) These counterpart 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
counterpart regulations impose no obligations on State, local, or
tribal governments.
Takings
In accordance with Executive Order 12630, these counterpart
regulations do not have significant takings implications. These
counterpart regulations pertain solely to ESA section 7 consultation
coordination procedures, and the procedures have no impact on personal
property rights.
Federalism
In accordance with Executive Order 13132, these counterpart
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 ESA, we coordinated
development of these counterpart regulations with
[[Page 68264]]
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 counterpart regulations
consistent with 50 CFR 402.04 and section 7 of the ESA.
Paperwork Reduction Act
This rule would 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
record keeping 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
These counterpart regulations have been developed by FWS and NMFS,
jointly with FS, BIA, BLM, and NPS according to 50 CFR 402.04. The FWS
and NMFS are considered the lead Federal agencies for the preparation
of this rule, pursuant to 40 CFR 1501. We have analyzed these
counterpart regulations in accordance with the criteria of the National
Environmental Policy Act (NEPA), the Department of the Interior Manual
(318 DM 2.2(g) and 6.3(D)), and National Oceanic and Atmospheric
Administration (NOAA) Administrative Order 216-6 and have determined,
after preparation of an environmental assessment, that the action does
not have any significant effects. A Finding Of No Significant Impact
has been prepared.
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-to
Government basis. These counterpart regulations do not directly affect
Tribal resources. These counterpart regulations may have an indirect
effect on Native American Tribes as the Bureau of Indian Affairs may,
at its discretion, implement the procedures outlined in the counterpart
regulations for those activities affecting Tribal resources that they
may authorize, fund, or carry out under the NFP. The analysis that is
conducted for determining how a proposed project affects listed species
or critical habitat remains unchanged by these counterpart regulations.
Therefore, tribal resources will be unaffected by implementation of
this rule and government-to-government consultation is not necessary.
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
Final Regulation Promulgation
0
For the reasons set forth in the preamble, the Service amends part 402,
title 50 of the Code of Federal Regulations as follows:
PART 402--[AMENDED]
0
1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Add a new Subpart C to read as follows:
Subpart C--Counterpart Regulations For Implementing the National Fire
Plan
Sec.
402.30 Definitions.
402.31 Purpose.
402.32 Scope.
402.33 Procedures.
402.34 Oversight.
Subpart C--Counterpart Regulations for Implementing the National
Fire Plan
Sec. 402.30 Definitions.
The definitions in Sec. 402.02 are applicable to this subpart. In
addition, the following definitions are applicable only to this
subpart.
Action Agency refers to the Department of Agriculture Forest
Service (FS) or the Department of the Interior Bureau of Indian Affairs
(BIA), Bureau of Land Management (BLM), Fish and Wildlife Service
(FWS), or National Park Service (NPS).
Alternative Consultation Agreement (ACA) is the agreement described
in Sec. 402.33 of this subpart.
Fire Plan Project is an action determined by the Action Agency to
be within the scope of the NFP as defined in this section.
National Fire Plan (NFP) is the September 8, 2000, report to the
President from the Departments of the Interior and Agriculture entitled
``Managing the Impact of Wildfire on Communities and the Environment''
outlining a new approach to managing fires, together with the
accompanying budget requests, strategies, plans, and direction, or any
amendments thereto.
Service Director refers to the FWS Director or the Assistant
Administrator for Fisheries for the National Oceanic and Atmospheric
Administration.
Sec. 402.31 Purpose.
The purpose of these counterpart regulations is to enhance the
efficiency and effectiveness of the consultation process under section
7 of the ESA for Fire Plan Projects by providing an optional
alternative to the procedures found in Sec. Sec. 402.13 and 402.14(b)
of this part. These regulations permit an Action Agency to enter into
an Alternative Consultation Agreement (ACA) with the Service, as
described in Sec. 402.33, which will allow the Action Agency to
determine that a Fire Plan Project is ``not likely to adversely
affect'' (NLAA) a listed species or designated critical habitat without
formal or informal consultation with the Service or written concurrence
from the Service. An NLAA determination for a Fire Plan Project made
under an ACA, as described in Sec. 402.33, completes the Action
Agency's statutory obligation to consult with the Service for that
Project. In situations where the Action Agency does not make an NLAA
determination under the ACA, the Action Agency would still be required
to conduct formal consultation with the Service when required by Sec.
402.14. This process will be as protective to listed species and
designated critical habitat as the process established in subpart B of
this part. The standards and requirements for formal consultation under
subpart B for Fire Plan Projects that do not receive an NLAA
determination are unchanged.
Sec. 402.32 Scope.
(a) Section 402.33 establishes a process by which an Action Agency
may determine that a proposed Fire Plan Project is not likely to
adversely affect any listed species or designated critical habitat
without conducting formal or informal consultation or obtaining written
concurrence from the Service.
(b) Section 402.34 establishes the Service's oversight
responsibility and the standard for review under this subpart.
(c) Nothing in this subpart C precludes an Action Agency at its
discretion from initiating early, informal, or formal consultation as
described in Sec. Sec. 402.11, 402.13, and 402.14, respectively.
(d) The authority granted in this subpart is applicable to an
Action Agency only where the Action Agency
[[Page 68265]]
has entered into an ACA with the Service. An ACA entered into with one
Service is valid with regard to listed species and designated critical
habitat under the jurisdiction of that Service whether or not the
Action Agency has entered into an ACA with the other Service.
Sec. 402.33 Procedures.
(a) The Action Agency may make an NLAA determination for a Fire
Plan Project without informal consultation or written concurrence from
the Director if the Action Agency has entered into and implemented an
ACA. The Action Agency need not initiate formal consultation on a Fire
Plan Project if the Action Agency has made an NLAA determination for
the Project under this subpart. The Action Agency and the Service will
use the following procedures in establishing an ACA.
(1) Initiation: The Action Agency submits a written notification to
the Service Director of its intent to enter into an ACA.
(2) Development and Adoption of the Alternative Consultation
Agreement: The Action Agency enters into an ACA with the Service
Director. The ACA will, at a minimum, include the following components:
(i) A list or description of the staff positions within the Action
Agency that will have authority to make NLAA determinations under this
subpart C.
(ii) Procedures for developing and maintaining the skills necessary
within the Action Agency to make NLAA determinations, including a
jointly developed training program based on the needs of the Action
Agency.
(iii) A description of the standards the Action Agency will apply
in assessing the effects of the action, including direct and indirect
effects of the action and effects of any actions that are interrelated
or interdependent with the proposed action.
(iv) Provisions for incorporating new information and newly listed
species or designated critical habitat into the Action Agency's effects
analysis of proposed actions.
(v) A mutually agreed upon program for monitoring and periodic
program evaluation to occur at the end of the first year following
signature of the ACA and periodically thereafter.
(vi) Provisions for the Action Agency to maintain a list of Fire
Plan Projects for which the Action Agency has made NLAA determinations.
The Action Agency will also maintain the necessary records to allow the
Service to complete the periodic program evaluations.
(3) Training: Upon completion of the ACA, the Action Agency and the
Service will implement the training program outlined in the ACA to the
mutual satisfaction of the Action Agency and the Service.
(b) The Action Agency may, at its discretion, allow any subunit of
the Action Agency to implement this subpart as soon as the subunit has
fulfilled the training requirements of the ACA, upon written
notification to the Service. The Action Agency shall at all times have
responsibility for the adequacy of all NLAA determinations it makes
under this subpart.
(c) The ACA and any related oversight or monitoring reports shall
be made available to the public through a notice of availability in the
Federal Register.
Sec. 402.34 Oversight.
(a) Through the periodic program evaluation set forth in the ACA,
the Service will determine whether the implementation of this subpart
by the Action Agency is consistent with the best available scientific
and commercial information, the ESA, and section 7 regulations.
(b) The Service Director may use the results of the periodic
program evaluation described in the ACA to recommend changes to the
Action Agency's implementation of the ACA. If and as appropriate, the
Service Director may suspend any subunit participating in the ACA or
exclude any subunit from the ACA.
(c) The Service Director retains discretion to terminate the ACA if
the Action Agency fails to comply with the requirements of this
subpart, section 7 of the ESA, or the terms of the ACA. Termination,
suspension, or modification of an ACA does not affect the validity of
any NLAA determinations made previously under the authority of this
subpart.
Dated: November 26, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
Dated: December 3, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 03-30393 Filed 12-5-03; 8:45 am]
BILLING CODE 3510-22-P