Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 402</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2021-0104; FXES1114090FEDR-245-FF09E300000; Docket No. NMFS-240325-0087]</DEPDOC> <RIN>RIN 1018-BF96; 0648-BK48</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> FWS and NMFS (collectively referred to as the “Services” or “we”) finalize revisions to portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended (“Act”). The revisions to the regulations clarify, interpret, and implement portions of the Act concerning the interagency cooperation procedures. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective May 6, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Public comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available online at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2021-0104. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Craig Aubrey, Ecological Services, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-2442; or Tanya Dobrzynski, Chief, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301/427-8400. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the Endangered Species Act, as amended (hereafter referred to as “ESA” or “the Act;” 16 U.S.C. 1531 <E T="03">et seq.</E> ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated procedural regulations governing interagency cooperation under section 7 of the Act, which requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to ensure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. These joint regulations, which are codified in the Code of Federal Regulations at 50 CFR part 402, were most recently revised in 2019 (84 FR 44976, August 27, 2019; hereafter referred to as “the 2019 rule”). Those revised regulations became effective October 28, 2019 (84 FR 50333, September 25, 2019). Executive Order 13990 (hereafter, “E.O. 13990”), which was entitled “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” was issued January 20, 2021, and directed all departments and agencies to immediately review agency actions taken between January 20, 2017, and January 20, 2021, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with important national objectives, including promoting and protecting our public health and the environment, and to immediately commence work to confront the climate crisis. A “Fact Sheet” that accompanied E.O. 13990 identified a non-exhaustive list of particular regulations requiring such a review and included the 2019 rule (see <E T="03">www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</E> ). In response to E.O. 13990 and in light of litigation over the 2019 rule, the Services proposed revisions to portions of the ESA implementing regulations at 50 CFR part 402. On June 22, 2023, we published in the <E T="04">Federal Register</E> (88 FR 40753) a proposed rule to amend portions of our regulations that implement section 7 of the Act. We accepted public comments on the June 22, 2023, proposed rule for 60 days, ending August 21, 2023. The proposed rule included clarifying the definitions of “effects of the action,” “environmental baseline,” and “reasonable and prudent measures”; removing § 402.17, “Other provisions,” which had been promulgated with the intent of clarifying several aspects of the process of determining whether an activity or consequence is reasonably certain to occur; clarifying the responsibilities of the Federal agency and the Services regarding the requirement to reinitiate consultation; and revising the regulations at 50 CFR 402.02 and 402.14 regarding the scope of reasonable and prudent measures (RPMs) in an incidental take statement (ITS). The proposed rule also sought comment on all aspects of the 2019 rule, including whether any of those provisions should be rescinded in their entirety (restoring the prior regulatory provision) or revised in a different way. The Services also conducted outreach to Federal and State agencies, industries regularly involved in section 7(a)(2) consultation, Tribes, nongovernmental organizations, and other interested parties and invited their comment on the proposal. Following consideration of all public comments received in response to our proposed rule, we are proceeding to finalize revisions to our implementing regulations at 50 CFR part 402 as proposed, with no changes. The basis and purpose for this final rule are reflected in our explanation in the June 2023 proposed rule, the responses to comments below, as well as the 2019 final rule for those aspects of the 2019 final rule we are not changing here. These revisions will further improve and clarify interagency consultation. With the exception of the revisions at 50 CFR 402.02 and 402.14 regarding the RPMs in an incidental take statement (ITS), the revisions do not make any changes to existing practice of the Services in implementing section 7(a)(2) of the Act. In the event any provision is invalidated or held to be impermissible as a result of a legal challenge, the “remainder of the regulations could function sensibly without the stricken provision.” <E T="03">Belmont Mun. Light Dep't</E> v. <E T="03">FERC,</E> 38 F.4th 173, 187 (D.C. Cir. 2022) (quoting <E T="03">MD/DC/DE Broad. Ass'n</E> v. <E T="03">FCC,</E> 236 F.3d 13, 22 (D.C. Cir. 2001)). Because each of the revisions stands on its own, the Services view each revision as operating independently from the other revisions. Should a reviewing court invalidate any particular revision(s) of this rulemaking, the remaining portions would still allow the Services to issue biological opinions and incidental take statements that comprehensively evaluate the effects of federal actions on listed species and critical habitat and adequately address the impacts of incidental take that are reasonably certain to occur. Specifically, these distinct provisions include: (1) revisions to the definition of “environmental baseline,” (2) removal of section § 402.17 and conforming revisions to the definition of “effects of the action,” (3) revisions to § 402.16, and (4) revisions to the regulatory provisions regarding the scope of reasonable and prudent measures in incidental take statements (§§ 402.02 and 402.14(i)). To illustrate this with one possible example, in the event that a reviewing court were to find the revision adopted in 2019 that described expedited consultations at § 402.14(l) is invalid, that finding would not affect the current revisions to the provisions for reinitiation of consultation at Section § 402.16. The revisions to the regulations in this final rule are prospective; they are not intended to require that any previous consultations under section 7(a)(2) of the Act be reevaluated at the time this final rule becomes effective (see <E T="02">DATES</E> , above). This rule is one of three rules publishing in today's <E T="04">Federal Register</E> that make changes to the regulations that implement the ESA. Two of these final rules, including this one, are joint between the Services, and one final rule is specific to FWS. <HD SOURCE="HD1">Summary of Comments and Responses</HD> In our June 22, 2023, proposed rule (88 FR 40753), we requested public comments by August 21, 2023. We received more than 140,000 comments by that date from individual members of the public, States, Tribes, industry organizations, legal foundations and firms, and environmental organizations. We received several requests for extensions of the public comment period. However, we elected not to extend the public comment period because we found the 60-day comment period provided sufficient time for a thorough review of the proposed revisions. The majority of the proposed revisions are to portions of the regulations that were previously revised in 2019, and we jointly announced in a public press release and on a Service website our intention to revise these regulations in June of 2021. The number of comments received indicated that members of the public were aware of the proposed rule and had adequate time to review it. In addition, we provided six informational sess ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 236k characters. 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