Joint Counterpart Endangered Species Act Section 7 Consultation Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

50 CFR Part 402

RIN 1018-AD32

Joint Counterpart Endangered Species Act Section 7 Consultation

Regulations

AGENCIES: Fish and Wildlife Service, Interior; and National Marine

Fisheries Service, National Oceanic and Atmospheric Administration,

Commerce.

ACTION: Proposed rule.

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SUMMARY: With the concurrence of the U.S. Department of Agriculture,

Forest Service (FS) and the Department of the Interior, Bureau of Land

Management (BLM), the U.S. Fish and Wildlife Service (FWS) and the

National Oceanic and Atmospheric Administration, National Marine

Fisheries Service (NMFS) propose to promulgate counterpart section 7

consultation regulations (50 CFR 402) under the Endangered Species Act

of 1973 to establish an alternate consultation process. These

regulations supplement the more general consultation regulations in

Part 402 to provide for a more effective and efficient process to meet

the specific needs of BLM and FS programs.

DATES: Comments on this proposal must be received by October 3, 1995,

in order to be considered in the final decision on this proposal.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Chief, Division of Endangered Species, U.S. Fish and

Wildlife Service, 1849 C Street, N.W., Washington, DC 20240. Comments

and materials received will be available for public inspection, by

appointment, during normal business hours in Room 452, 4401 North

Fairfax Drive, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT:

E. LaVerne Smith, Chief, Division of Endangered Species, at the above

address (703/358-2171; facsimile 703/358-1735) or Robert C. Ziobro,

Endangered Species Division, NMFS, 1335 East-West Highway, Silver

Spring, MD 20910 (301/713-1401 facsimile 301/713-0376).

SUPPLEMENTARY INFORMATION:

Background

rs in Room 452, 4401 North

Fairfax Drive, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT:

E. LaVerne Smith, Chief, Division of Endangered Species, at the above

address (703/358-2171; facsimile 703/358-1735) or Robert C. Ziobro,

Endangered Species Division, NMFS, 1335 East-West Highway, Silver

Spring, MD 20910 (301/713-1401 facsimile 301/713-0376).

SUPPLEMENTARY INFORMATION:

Background

These proposed joint counterpart Endangered Species Act (ESA)

consultations procedures govern ESA section 7(a) consultation for FS

and BLM. The procedures differ from the existing procedures in part 402

subparts A and B in that they encourage ESA consultation well before

project-level decisions are made and provide a framework for

consultation on program-level or ecosystem-level decisions, as opposed

to project-level decisions. This early consultation at the program-

level facilitates future consultation at the project-level and these

procedures describe how that streamlining is accomplished. In addition,

while the regulations at part 402 subparts A and B are silent as to

whether ongoing actions can continue during consultations, these

regulations expressly address that issue and specify the measures the

agencies will take regarding ongoing actions once ESA consultation at

the project-level becomes mandatory.

Under these procedures, FS and BLM and the appropriate consulting

Service (either FWS or NMFS) are required to enter into a consultation

agreement, unless they have already done so for that species or

decision, when (1) a new species is proposed for listing or is listed;

e measures the

agencies will take regarding ongoing actions once ESA consultation at

the project-level becomes mandatory.

Under these procedures, FS and BLM and the appropriate consulting

Service (either FWS or NMFS) are required to enter into a consultation

agreement, unless they have already done so for that species or

decision, when (1) a new species is proposed for listing or is listed;

(2) critical habitat is proposed for designation or is designated; (3)

a revision or amendment of a land planning document is formally

announced; or (4) FS, BLM or one of the Services requests a

consultation agreement. In this agreement, the agencies choose how they

will conduct program-level and project-level consultation. That is,

they decide whether project-level (which the procedures call non-site-

specific) consultation and when project-level (which these procedures

call site-specific consultation) consultation will occur. The agreement

sets a schedule for the chosen manner of consultation and all

subsequent actions related to ongoing activities.

The objective of non-site specific consultation is to identify

standards and guidelines or parameters that then can be applied to

site-specific consultations. Where the parameters are identified as

adequate to avoid adverse effects to the listed species in the non-

site-specific consultation by the appropriate Service, the parameters

are then used to facilitate site-specific consultation. For those

actions that are in conformance with adequate parameters, consultations

is concluded when FS and BLM notify the appropriate Service of the

conforming action and provide the Service with the basis for that

decision. Where no adequate parameters have been identified in a non-

site-specific consultation, the action agencies are required to conduct

consultation/conference pursuant to sections 402.10 and/or 402.14 for

any project-level decisions

ameters, consultations

is concluded when FS and BLM notify the appropriate Service of the

conforming action and provide the Service with the basis for that

decision. Where no adequate parameters have been identified in a non-

site-specific consultation, the action agencies are required to conduct

consultation/conference pursuant to sections 402.10 and/or 402.14 for

any project-level decisions.

The procedures address the measures the agencies are to take with

respect to ongoing actions when consultation becomes mandatory under

section 402.14. The procedures require the identification of all

ongoing actions that may affect the listed species and an initial

determination of which actions represent an imminent threat to the

listed species. The action agencies are required to take all possible

steps to halt or modify these imminent threat actions. The action

agencies are required then to identify all actions that are likely to

adversely affect the species in question and to review whether to take

steps to halt or modify those actions as well. All other ongoing

actions that are not halted under these procedures may go forward

during consultation. Provisions for counterpart section 7 consultation

procedures are set forth in section 402.04. Such regulations supersede

consultation regulations at 50 CFR 402, subpart B.

As part of their land management planning processes, the FS

prepares Land and Resource Management Plans and the BLM prepares

Resource Management Plans. Plans identify general land-use purposes or

allocations; future conditions that are desired on specific lands;

goals and

rocedures are set forth in section 402.04. Such regulations supersede

consultation regulations at 50 CFR 402, subpart B.

As part of their land management planning processes, the FS

prepares Land and Resource Management Plans and the BLM prepares

Resource Management Plans. Plans identify general land-use purposes or

allocations; future conditions that are desired on specific lands;

goals and

objectives for resource conditions on specific lands; and standards,

guidelines, or other mechanisms that govern activities conducted on

lands managed by these agencies in the future. Plans provide the

general framework under which those site specific activities are

developed over a period of several years.

Because Plans do not normally prescribe specific land management

activities, there is a significant level of uncertainty associated with

the environmental consequences of Plans. This uncertainty is a

particular problem when the BLM or FS try to fulfill their obligation

to consult with the FWS and/or NMFS and assure that their activities

are not likely to jeopardize the continued existence of threatened or

endangered species since site-specific details are not often known when

consultations are initiated. Because Plans are operational for a period

covering several years, new species may be added to the list of

threatened and endangered species, or significant new information may

become available and re-evaluation of the effects of Plans on listed,

proposed, or Category 1 species, and proposed or listed critical

habitat may be required.

ESA section 7(a)(2) requires that ``each Federal agency shall, in

consultation with and with the assistance of the Secretary [of the

Interior or Commerce] insure that any action authorized, funded, or

carried out by such agency * * * is not likely to jeopardize the

continued existence of any endangered species or threatened species or

result in the destruction or adverse modification of [critical] habitat

of such species.'' 16 U.S.C. 1536(a)(2)

y shall, in

consultation with and with the assistance of the Secretary [of the

Interior or Commerce] insure that any action authorized, funded, or

carried out by such agency * * * is not likely to jeopardize the

continued existence of any endangered species or threatened species or

result in the destruction or adverse modification of [critical] habitat

of such species.'' 16 U.S.C. 1536(a)(2). ESA section 7(a)(4) requires

that ``[e]ach Federal agency shall confer * * * on any agency action

which is likely to jeopardize the continued existence of any species

proposed to be listed * * * or result in the destruction or adverse

modification of [proposed] critical habitat'' for that species. 16

U.S.C. 1536(a)(4). The manner or timing of consultation and

conferencing is not prescribed by statute.

The ESA consultation regulations at section 402.14 provide that ESA

consultation is required for any Federal action that may affect a

listed species or critical habitat. These counterpart regulations

encourage consultation before there is an action that may affect a

species. Section 402.10 of the regulations provides that conferencing

is required for any action that is likely to jeopardize the continued

existence of any proposed species or result in the adverse modification

of proposed critical habitat. These regulations encourage conferencing

before an action is likely to jeopardize a proposed species or result

in adverse modification of proposed critical habitat. Thus, the use of

the terms ``consultation'' and ``conferencing'' in these regulations is

not always equivalent to their use in the regulations at part 402

subparts A and B.

Sections 402.22 and 402.23 of these counterpart regulations

facilitate and promote early consultation before it is mandatory under

the ESA, as determined in the regulations at section 402.14, and

establish a framework within which non-site-specific consultation may

be conducted

cing'' in these regulations is

not always equivalent to their use in the regulations at part 402

subparts A and B.

Sections 402.22 and 402.23 of these counterpart regulations

facilitate and promote early consultation before it is mandatory under

the ESA, as determined in the regulations at section 402.14, and

establish a framework within which non-site-specific consultation may

be conducted. Non-site-specific actions, as defined by these

regulations, shall have no direct effect on listed species or critical

habitat. Thus, the decision whether to engage in non-site-specific

consultation is discretionary, that is, not required under the statute

as interpreted by the part 402 subpart A and B regulations. Since non-

site-specific actions themselves have no direct effect on the species,

the written statement concluding non-site-specific consultation cannot

provide definitive findings of effect and ``jeopardy'' as to the

subject of consultation as can be provided in site-specific

consultation.

Even though non-site-specific consultation is discretionary and

cannot provide the definitive ``jeopardy/no-jeopardy'' determination

that results from site-specific consultation, Federal agencies may

elect to engage in non-site-specific consultation or conferencing even

when neither consultation nor conferencing are mandatory, as determined

by sections 402.10 and 402.14, to facilitate more efficient compliance

with their ESA duty. Such non-site-specific consultation may provide an

efficient anticipatory step to, or may be an integral part of,

mandatory ESA consultation compliance. It can provide an efficient

means of reviewing potential impacts to listed species on a broad scale

and lead to the identification of parameters that address the needs of

species throughout all or a portion of their range or within the

geographic scope of the non-site specific consultation

n

efficient anticipatory step to, or may be an integral part of,

mandatory ESA consultation compliance. It can provide an efficient

means of reviewing potential impacts to listed species on a broad scale

and lead to the identification of parameters that address the needs of

species throughout all or a portion of their range or within the

geographic scope of the non-site specific consultation. These

parameters may then be applied in site-specific consultations and

conferences, thereby streamlining the process of complying with the ESA

consultation requirements for site-specific actions that may affect

listed species or critical habitat or jeopardize proposed species or

adversely modify or destroy proposed critical habitat. Section 402.22

of these counterpart regulations provides for a consultation agreement

to facilitate this process and section 402.23 provides a framework for

this discretionary non-site-specific consultation.

Section 402.24 addresses consultation as it relates to site-

specific actions, where consultation is mandatory as defined by the

regulations in section 402.14. Section 402.24(a) specifies how

mandatory site-specific consultation shall be conducted where relevant

parameters have been identified and deemed sufficient pursuant to a

relevant non-site-specific consultation and an action is in conformance

with those parameters. Where adequate parameters have not been

developed or an action is not in conformance with those parameters,

section 402.24(a) provides that consultation shall proceed as described

in the part 402 subparts A and B regulations.

Once consultation becomes mandatory at the project level, certain

ongoing actions may need to be suspended until the conclusion of

consultation to insure the integrity of the consultation process

ave not been

developed or an action is not in conformance with those parameters,

section 402.24(a) provides that consultation shall proceed as described

in the part 402 subparts A and B regulations.

Once consultation becomes mandatory at the project level, certain

ongoing actions may need to be suspended until the conclusion of

consultation to insure the integrity of the consultation process.

Sections 402.24(b), (c), and (d) provide a process for reviewing, and

determining whether to halt, ongoing site-specific actions for which

parameters have not been developed, once ESA consultation at the

project level becomes mandatory. Since site-specific consultation at

the non-site-specific level is discretionary, not mandatory, no similar

provision governing review of ongoing actions is required during non-

site-specific consultation.

Sections 402.24 (c) and (d) also provide that other actions

associated with actions that may cause imminent threats to or are

likely to adversely affect listed species or its critical habitat may

need to be suspended as well during consultation. ESA consultation on

imminent threat and likely to adversely affect actions (unlike ESA

consultation on actions that are not likely to adversely affect listed

species) have a reasonable potential to result in the identification of

reasonable and prudent alternatives to the action in consultation. In

such circumstances, section 7(d) of the ESA also prohibits the action

agency from undertaking any irreversible and irretrievable commitments

of resources associated with such actions that would foreclose the

formulation or implementation of reasonable and prudent alternative.

Required Determinations

This rule was reviewed under Executive Order 12866. The Fish and

Wildlife Service certifies that the proposed revisions to 50 CFR 402

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5

h such actions that would foreclose the

formulation or implementation of reasonable and prudent alternative.

Required Determinations

This rule was reviewed under Executive Order 12866. The Fish and

Wildlife Service certifies that the proposed revisions to 50 CFR 402

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). Significant adverse economic impacts are not

expected as a result of the proposed rule because: (1) the rule is

intended to reduce or eliminate altogether the consultation

requirements on numerous Federal actions under the ESA with respect to

listed and proposed species; and (2) the rule amends 50 CFR 402,

resulting in consultation efficiencies that will effectively reduce

potential economic burdens associated with consultation requirements.

Also, no direct costs, enforcement costs, information collection, or

recordkeeping requirements are required by this proposed rule beyond

those already required by existing 50 CFR 402 regulations, nor does the

proposed rule contain any recordkeeping requirements as defined by the

Paperwork Reduction Act of 1980. Further, this rule does not require a

Federalism assessment under Executive Order 12612 because it would have

no significant Federalism effects as described in the order. Finally,

the Service has determined that the proposed regulation does not

require the preparation of a Takings Implication Assessment under the

requirements of Executive Order 12630, ``Government Actions and

Interference with Constitutionally Protected Property Rights.'' These

counterpart regulations pertain solely to consultation coordination

procedures and the procedures have no impact on personal property

rights.

Author

ed that the proposed regulation does not

require the preparation of a Takings Implication Assessment under the

requirements of Executive Order 12630, ``Government Actions and

Interference with Constitutionally Protected Property Rights.'' These

counterpart regulations pertain solely to consultation coordination

procedures and the procedures have no impact on personal property

rights.

Author

The primary authors of this proposal are Jay Slack, Department of

the Interior, Fish and Wildlife Service, Division of Endangered

Species, Arlington, Virginia 22203 (703/358-2106); Jim Hoff, Department

of the Interior, Bureau of Land Management, Washington, D.C. 20240

(202/452-5045); Harv Forsgren, Department of Agriculture, Forest

Service, Washington, D.C. 20090 (202/205-0830); Bob Ziobro, Department

of commerce, National Oceanic and Atmospheric Administration, National

Marine Fisheries Service, Silver Spring, Maryland 20910 (301/713-1401).

List of Subjects in 50 CFR Part 402

Endangered and threatened species.

Proposed Regulation Promulgation

Accordingly, the FWS and NMFS hereby propose to amend part 402,

title 50 of the Code of Federal Regulations, as set forth below:

PART 402--[AMENDED]

1. The authority citation for part 402 continues to read as

follows:

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

2. Revise Sec. 402.04 to read as follows:

Sec. 402.04 Counterpart regulations.

The consultation procedures set forth in this part may be

superseded for a particular Federal agency by joint counterpart

regulations issued by, the Fish and Wildlife Service, and the National

Marine Fisheries Service with the written concurrence of the action

agency published with that counterpart regulation. Such counterpart

regulations shall be published in the Federal Register in proposed form

and shall be subject to public comment for at least 60 days before

final rules are published. Counterpart regulations appear in subpart C

of this part.

3

dlife Service, and the National

Marine Fisheries Service with the written concurrence of the action

agency published with that counterpart regulation. Such counterpart

regulations shall be published in the Federal Register in proposed form

and shall be subject to public comment for at least 60 days before

final rules are published. Counterpart regulations appear in subpart C

of this part.

3. Add a new subpart C--Counterpart Regulations and sections 402.20

to 402.29 to read as follows:

Sec. 402.20 Scope.

The counterpart regulations in this subpart supplement and, where

applicable, set forth an alternative to the Endangered Species Act

(ESA) consultation regulations found in subparts A and B of this part

for the Forest Service (FS), Department of Agriculture and the Bureau

of Land Management (BLM), Department of the Interior.

(a) Sections 402.22 and 402.23 of the counterpart regulations in

this subpart address consultation agreements and non-site-specific

consultations, respectively. Both facilitate ESA consideration and

coordination sooner than is required by subpart A and B of this part.

Section 402.22 establishes a process by which FS and BLM, in

coordination with the Fish and Wildlife Service (FWS) and/or the

National Marine Fisheries Service (NMFS), determine whether and in what

manner to engage in non-site-specific consultations related to their

land management planning efforts pursuant to, inter alia, the

Endangered Species Act, 16 U.S.C. 1531, et seq., the National Forest

Management Act of 1976, 16 U.S.C. 1604 and 36 CFR 219, the Federal Land

and Policy Management Act of 1976, 43 U.S.C. 1701-1784 and the Oregon

and California Lands Act, 43 U.S.C 1181a. Section 402.23 provides a

framework for non-site-specific ESA consultation which may result in

the identification of protective parameters for listed species and

critical habitat.

, et seq., the National Forest

Management Act of 1976, 16 U.S.C. 1604 and 36 CFR 219, the Federal Land

and Policy Management Act of 1976, 43 U.S.C. 1701-1784 and the Oregon

and California Lands Act, 43 U.S.C 1181a. Section 402.23 provides a

framework for non-site-specific ESA consultation which may result in

the identification of protective parameters for listed species and

critical habitat.

(b) Section 402.24 addresses site-specific consultations and

conferences. Section 403.24(a) provides an alternative to subparts A

and B of this part governing how ongoing and proposed site-specific

actions shall be conducted where sufficient parameters have been

identified in a relevant non-site-specific consultation. Sections

402.24(b), (c), and (d) provide a process for reviewing ongoing site-

specific actions when consultation becomes mandatory and no sufficient

parameters have been identified.

Sec. 402.21 Definitions.

Many of the terms used in the regulations in this subpart are

defined in section 402.02. In addition, the terms defined in this

section are applicable to this subpart.

(a) Action agency means either the FS or the BLM.

(b) Consultation means all oral and written communications between

the Action Agency and the Service designed to facilitate that Action

Agency's compliance with the ESA. Consultation includes, but is not

limited to, early, informal and formal consultation under the

regulations in subpart B of this part, as well as early non-site-

specific consultation as provided for in Secs. 402.22 and 402.23;

(1) Site-specific consultation means any consultation the subject

of which is a particular site-specific action or group of site-specific

actions that may affect listed species or critical habitat; and

(2) Non-site-specific consultation means any consultation

undertaken the subject of which is something other than a particular

site-specific action or group of site-specific actions.

d 402.23;

(1) Site-specific consultation means any consultation the subject

of which is a particular site-specific action or group of site-specific

actions that may affect listed species or critical habitat; and

(2) Non-site-specific consultation means any consultation

undertaken the subject of which is something other than a particular

site-specific action or group of site-specific actions.

(c) Is likely to adversely affect means the appropriate conclusion

if an adverse effect to listed species or critical habitat may occur as

a direct or indirect result of the proposed action or its interrelated

or interdependent actions. In the event the overall effect of the

proposed action is beneficial to the listed species or critical

habitat, but also likely to cause some adverse effects, then the

proposed action ``is likely to adversely affect'' the listed species or

critical habitat. An ``is likely to adversely affect'' determination

requires formal consultation.

(d) Is not likely to adversely affect means the appropriate

conclusion when effects on the species or critical habitat are expected

to be beneficial, discountable, or insignificant. Beneficial effects

have contemporaneous positive effects without any adverse effects to

the species or habitat. Insignificant effects relate to the size of the

impact (and should not reach the scale where take occurs, as defined in

16 U.S.C. 1532(19) and 50 CFR 17.3). Discountable effects are those

extremely unlikely to occur. Based on best judgment, a person would not

be able to meaningfully measure, detect, or evaluate insignificant

effects or expect discountable effects to occur.

species or habitat. Insignificant effects relate to the size of the

impact (and should not reach the scale where take occurs, as defined in

16 U.S.C. 1532(19) and 50 CFR 17.3). Discountable effects are those

extremely unlikely to occur. Based on best judgment, a person would not

be able to meaningfully measure, detect, or evaluate insignificant

effects or expect discountable effects to occur.

(e) Site-specific action means any FS or BLM action or group of

actions (as defined in Sec. 402.02) that has physical, biological, or

chemical effects on the environment;

(1) Any other FS and BLM action is a non-site-specific action;

(2) ongoing site-specific action means a site-specific action that

is being executed or one for which a project level decision has been

made or that otherwise has been authorized by the Action Agency but has

not yet been completed at the time consultation is initiated (e.g.,

actions that were authorized, funded, or initiated prior to the

relevant triggering event and in which there is discretionary Federal

involvement or control); and

(3) Proposed site-specific action means a site-specific action that

has not yet been finally authorized by the Action Agency.

Sec. 402.22 Consultation/conference agreement.

(a) Commencement of discussions. (1) Unless the event was

contemplated and addressed in a prior consultation/conference agreement

in accordance with this section, the Action Agency and Service shall

discuss and determine the most efficient method for fulfilling the

purposes of the ESA consistent with the regulations in this subpart ,

as soon as practicable after any of the following events:

(a) Commencement of discussions. (1) Unless the event was

contemplated and addressed in a prior consultation/conference agreement

in accordance with this section, the Action Agency and Service shall

discuss and determine the most efficient method for fulfilling the

purposes of the ESA consistent with the regulations in this subpart ,

as soon as practicable after any of the following events:

(i) Publication of a proposed rule to list a species or to

designate critical habitat;

(ii) Listing of a species or designation of critical habitat;

(iii) Formal proposal of a new, or amendment or revision of an

existing, BLM or FS land management planning decision, including but

not limited to the proposal of a land and resource management plan,

resource management plan, or a protective initiative, but not including

instructional memoranda, policies, directives or revisions to agency

manuals; or

(iv) When, at any time, an Action Agency or the Service requests

such discussions.

(2) Where any of these events affects more than one administrative

unit of the Action Agency or the Service, these discussions shall be

conducted jointly by, or on behalf of, all such units.

(b) Consultation/conference agreement. Unless a different time

frame is mutually agreed to by the Action Agency and the Service, the

results of these discussions shall be embodied in a document

(hereinafter ``consultation/conference agreement''), to be completed

within 45 days of the events listed in paragraph (a) of this section.

(1) The consultation/conference agreement shall:

such units.

(b) Consultation/conference agreement. Unless a different time

frame is mutually agreed to by the Action Agency and the Service, the

results of these discussions shall be embodied in a document

(hereinafter ``consultation/conference agreement''), to be completed

within 45 days of the events listed in paragraph (a) of this section.

(1) The consultation/conference agreement shall:

(i) Identify the land management planning documents relevant to the

present or anticipated need for ESA consultation/conference;

(ii) Where a land management planning document incorporates

authorization for a relevant site-specific activity, identify the

portions of the document that embody land management planning decisions

and those that embody the site-specific decisions that must be the

subject of site-specific consultation under subparts A and B of this

part, as supplemented by Sec. 402.24;

(iii) Determine whether and in what manner non-site-specific

consultation will be undertaken, including a list of the species that

will be considered and a description of the geographic area that is to

be encompassed by the consultation, and set forth a preliminary

schedule for and description of each major step required for each

selected level of consultation;

(iv) Provide a description of how ESA requirements for applicant

participation, if any, will be fulfilled;

(v) Establish any necessary and appropriate timeframes for

completing any review of ongoing site-specific actions under

Sec. 402.24, and

(vi) If practicable within the period set forth in paragraph (b) of

this section, incorporate parameters that will be used in making a

determination for listed species of ``not likely to adversely affect''

or ``imminent threat,'' or for developing any appropriate standards for

proposed or other species, in future site-specific consultation and

conferences under the regulations in this subpart related to the same

species and same geographic areas covered by the consultation/

conference agreement.

that will be used in making a

determination for listed species of ``not likely to adversely affect''

or ``imminent threat,'' or for developing any appropriate standards for

proposed or other species, in future site-specific consultation and

conferences under the regulations in this subpart related to the same

species and same geographic areas covered by the consultation/

conference agreement.

(2) The consultation agreement may reflect consideration of a

number of factors, including the types, impacts, and numbers of ongoing

actions; the biology, ecology, distribution, and abundance of the

relevant Category 1 candidate, proposed or listed species and proposed

or designated critical habitat; human resource consideration; the

timing of the consultation; National Environmental Policy Act, 43

U.S.C. 4321-4370(d), requirements for the Action Agency; data

collection requirements; and existing and forthcoming protective

strategies for the listed species.

(3) If the representatives of the Action Agency and the Service in

the discussions required in paragraph (a) of this section cannot agree

on the terms of the consultation/conference agreement, agreement shall

promptly be reached jointly by the heads of the applicable agencies, or

their designees.

(4) The time frames for development of, and the terms of, the

consultation/conference agreement may be modified or deviated from upon

mutual written agreement of the Action Agency and the Service.

Sec. 402.23 Non-site-specific consultation/conference.

he consultation/conference agreement, agreement shall

promptly be reached jointly by the heads of the applicable agencies, or

their designees.

(4) The time frames for development of, and the terms of, the

consultation/conference agreement may be modified or deviated from upon

mutual written agreement of the Action Agency and the Service.

Sec. 402.23 Non-site-specific consultation/conference.

(a) Action agency responsibilities. If the agencies elect to

conduct non-site-specific consultation/conference, the Action Agency

shall submit to the Service, by the date set forth in the consultation/

conference agreement, or the date as modified by mutual agreement, the

following information and documents:

(1) A copy of all documents, unless the document is already in the

possession of the Service, deemed by the Action Agency to be relevant

to the non-site-specific consultation/conference, including but not

limited to, scientific documents and data, reports, draft environmental

impact statements or assessments, forest plans, and resource management

plans, or strategies, including initiatives designed to address the

needs of the species identified in the consultation/conference

agreement, which shall be the best scientific and commercial data

available at the time of submission of the information required in this

paragraph;

(2) A written statement of how any non-site-specific level

decisions interact, if at all, with decisions at the site-specific

level and with the species identified in the consultation/conference

agreement and proposed or designated critical habitat of concern;

(3) Identification of any parameters such that site-specific

actions consistent with those parameters are not likely to adversely

affect listed species and/or are not likely to jeopardize the continued

existence of proposed species or adversely modify or destroy critical

habitat.

ecies identified in the consultation/conference

agreement and proposed or designated critical habitat of concern;

(3) Identification of any parameters such that site-specific

actions consistent with those parameters are not likely to adversely

affect listed species and/or are not likely to jeopardize the continued

existence of proposed species or adversely modify or destroy critical

habitat.

(b) Service responsibilities. Within 135 days of receiving the

information required under paragraph (a) of this section, the Service

shall:

(1) Issue a written statement detailing whether the parameters

identified pursuant to paragraph (a)(3) of this section provide

appropriate parameters such that site-specific actions consistent with

those parameters are not likely to adversely affect listed species or

critical habitat and/or are not likely to jeopardize and continued

existence of

proposed species or adversely modify or destroy proposed critical

habitat; or

(2) If either there is no existing or proposed decision document,

or the parameters identified in paragraph (a)(3) of this section are

determined to be inadequate, provide a description of parameters

sufficient under paragraph (a)(3) of this section, to the extent

possible and to the degree permitted by the information provided by the

Action Agency.

Sec. 402.24 Site-specific consultation/conference; ongoing site-

specific actions during consultation.

ment,

or the parameters identified in paragraph (a)(3) of this section are

determined to be inadequate, provide a description of parameters

sufficient under paragraph (a)(3) of this section, to the extent

possible and to the degree permitted by the information provided by the

Action Agency.

Sec. 402.24 Site-specific consultation/conference; ongoing site-

specific actions during consultation.

(a) Site-specific consultation/conference. For site-specific

actions that conform with parameters identified as sufficient under

Sec. 402.23, the Action Agency will provide, 30 days prior to the

decision document for proposed actions, or pursuant to the time frames

established in a consultation/conference agreement for ongoing actions,

a written notification to the Service of the Action Agency

determination and rationale that the action is in conformance with

relevant parameters. This notification ends consultation under section

7(a)(2) of the ESA. Completion of consultation fulfills the Action

Agency's responsibility to comply with section 7(d) of the ESA. If the

Service disagrees with the Action Agency's determination, it may

request reinitiation of informal or formal consultation as appropriate,

under this part and provide a rationale for its request. Any ongoing or

proposed site-specific action that is not in conformance with

parameters identified under Sec. 402.23 is subject to the consultation

requirements under subparts A and B of this part, as supplemented by

this section.

ion Agency's determination, it may

request reinitiation of informal or formal consultation as appropriate,

under this part and provide a rationale for its request. Any ongoing or

proposed site-specific action that is not in conformance with

parameters identified under Sec. 402.23 is subject to the consultation

requirements under subparts A and B of this part, as supplemented by

this section.

(b) Identification of ongoing activities. Pursuant to the

timeframes established in the relevant consultation/conference

agreement, the Action Agency will provide the Service with a written

list of all ongoing site-specific actions relevant to the triggering

event that may affect a listed species or its critical habitat. Such

ongoing site-specific actions are ones that were authorized, funded, or

initiated prior to the relevant triggering event and in which there is

discretionary Federal involvement or control. Actions identified on the

written list may continue under the regulations in this subpart during

consultation without interruption unless suspended pursuant to

paragraphs (c) or (d) of this section. The Action Agency should provide

notice to affected parties consistent with appropriate agency

procedures.

(c) Imminent threats. Pursuant to the timeframes establishment in

the relevant consultation/conference agreement, the Action Agency and

the Service shall review the actions identified pursuant to paragraph

interruption unless suspended pursuant to

paragraphs (c) or (d) of this section. The Action Agency should provide

notice to affected parties consistent with appropriate agency

procedures.

(c) Imminent threats. Pursuant to the timeframes establishment in

the relevant consultation/conference agreement, the Action Agency and

the Service shall review the actions identified pursuant to paragraph

(b) of this section. For any action that both the Service and Action

Agency agree may present an imminent threat to a listed species or its

critical habitat, the Action Agency will, as soon as practicable and

consistent with its legal authorities and obligations, initiate the

appropriate administrative process to review whether the action needs

to be modified, altered, or, if necessary, terminated. The Action

Agency also shall initiate formal consultation/conference under

Secs. 402.10 and 402.14 as appropriate. When it is consistent with its

legal authorities and obligations, the Action Agency should suspend any

such action and any associated irretrievable or irreversible

commitments of resources that would foreclose the formulation or

implementation of reasonable and prudent alternatives under section

7(d) of the ESA, until it is determined that the action is not likely

to jeopardize the continued existence of a listed species or result in

the adverse modification or destruction of its critical habitat.

(d) Likely to adversely affect actions. Pursuant to the timeframes

established in the relevant consultation/conference agreement, the

Action Agency shall review the actions identified pursuant to paragraph

until it is determined that the action is not likely

to jeopardize the continued existence of a listed species or result in

the adverse modification or destruction of its critical habitat.

(d) Likely to adversely affect actions. Pursuant to the timeframes

established in the relevant consultation/conference agreement, the

Action Agency shall review the actions identified pursuant to paragraph

(b) of this section, except for those already identified as imminent

threats under paragraph (c) of this section, and identify for the

Service those activities that are likely to adversely affect listed

species or critical habitat. For any action so identified by the Action

Agency, or for which the Service provides a written objection to its

continuance and the rationale therefore, the Action Agency will, as

soon as practicable and consistent with its legal authorities and

obligations, initiate the appropriate administrative process to review

whether the action, and any associated irretrievable or irreversible

commitments of resources that would foreclose the formulation or

implementation of reasonable and prudent alternatives under section

7(d) of the ESA, needs to be modified, altered, or, if necessary,

terminated. The Action Agency also shall initiate formal consultation/

conference under Secs. 402.10 and/or 402.14.

Sec. 402.25 Timeframes.

All timeframes set forth in Secs. 402.23 and 402.24 of this subpart

may be modified by mutual agreement.

Sec. 402.26 Applicability.

The regulations in this subpart are applicable to the FS and BLM

only where an event identified in Sec. 402.22(a) occurs after [the

effective date of the final rule].

Secs. 402.27-402.29 [Reserved]