[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 39921-39925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18919]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
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;
(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.
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
[[Page 39922]]
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). 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. 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. 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.
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
[[Page 39923]]
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
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. 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.
(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.
(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.
[[Page 39924]]
(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:
(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:
(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.
(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.
(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.
(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
[[Page 39925]]
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.
(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.
(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
(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
(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]
Dated: July 7, 1995.
George Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
Dated: June 30, 1995.
James R. Lyons,
Undersecretary, Natural Resources Environment.
Dated: July 3, 1995.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
Dated: July 6, 1995.
Bob Armstrong,
Assistant Secretary for Land and Minerals Management.
[FR Doc. 95-18919 Filed 8-3-95; 8:45 am]
BILLING CODE 4310-55-M
