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29996 002915 Federal Register I Vol. 48, No. 126 I Wednesday, June 29, 1983 I Proposed Rules I to be used 10 handle or dispose 01 any species actually taken. The 1982 Amendment's provision on incidental take also has been included in these proposed regulations on early "-'Orulultatlon. By discussing allowable Ilcidentallake during early .on!lult~lion. the, PI'Q~ :hve appi;c.tnl ........I~I.. rth ......... Utl aware 0 e re'uonable and prudent measures necessa ry to minimize the impacts of the proposeLI action on listed specie.. Since ell!ly cG."\8ultation will take place when the pros~ctive applicanl is al the earlies.t pla~n 1ng stages of the action. mo(hficahC?::IS 10 tbe proposed action could be ilv' ..orPoraled with the lesst amount of. effort and cost. In addition. ha\';.,:.~ 'tne incidental take provisions included in early consultation will proIilote 8 full understanding of the impacla of the pro~'08f!d action, reduce the likelihood of a later sU...prise. and expedite the subsequent review of Ihe early consultalion's preliminary biological opinion by the Service prior to actual permlt or license approval. An incJdentallake statement included in the preliminary biological opinion does not constitute 8 permit to take any listed species. This p:"Ovision in no way affects a Federal agenCY'1 responsibility under Section 7(a}(2) to insure that its action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, ~~" order for the Service to monitor the Impacts oi ~~~~!<fe~tal take, reporting requirements maY~1.~...duded as part of the terms and conditions seCtJufl u. ttt.. statement on incidental take. Under 50 CFR 13.45 (FWSl and I Z22.23{d) (NMPS), there are pro\oi~ions concerning reporting requirements rOI " any taking of threatened or endangered ,. species. The Service plans to adopt the e:>:lsting procedures for incidental take. The exisling procedures have Paperwork Reduction Act clearance. Specific reporting requirements may be incorporated in incidental take statements provide-d pursuant to Section 7{bJ{4}. Additiooallnfonnation In some caSt'&. !he Service may determine that additional information would be helpful In assisting the consullation process. To co\'er this situation. these proposed regulations adopt procedures discussed by Congress in the legislative history of the 1979 Amendfflents. When additional information is believed advantageous, the Service will requesl an extension oE formal consullation. When the Service requests such an extension. it will identify the lypes of information sought I for assisting consultation. The Service will. to the extent practical. and within existing budgetary and personnel restrictions. provide assistance in planning studies. furnishing relevant data, and recommendations that may be nerf'!s~ary JP.?b1i>.\?.u-C' ~\:;.W~'lfi information. The rellponsibili~y for conducting and funding thp:,e sludies belongs to tbe Federal sge.neies or the applicant and not to th......:service. When the dala are gath<:ted and submitted to the-Service. fo..mal consultation will continue. If an extMlsion is not agreed to. by the Federal llgency or the applicant. if any. the Sen'ice shall issue a biological opinion t-..ased on the best scientific and commerciat data then available. The Conference Report to the 1979 Amendments liltates that in this al!ufttion, the P€.deral agency haa a continuing respons'ibility to make a reasonable effort to develop additional information (H.R. Rep. 96-697, 96th Cong.. 2nd Sess. p.l:! (1979)J. Initiating informal consultation at an early stage in the development Qf an action wilh respect to lisled species or critical habitat should minimi::e the need to extend formal consultation because of a lack of information. Additional proviSions hAve been added to these regulations to deal with situations where a statule authorizes the federal aclion to be taken in incremental steps. Such clrcumstances ex.isted In North Slope Borough v. Andros, 642 P. 2d 589 (D.c. Cir. 1980), invohdng de\'clopment of oil and g8S ..:!'":I"',....,..":m the other continental shelf and the bowhe~'1d whale. In view of this decision. these re"'Ulationll provide Ihat 8 Federal agency ma~.. TlroCeed with incremental steps tow.. 'i~d compJet,lon of the entire action if: (1) lh O! biollvtCical opir\!~n d~es not find tha~ .'\1e incremem~1 step would V'l0[ ate Section 7{a)(2}: (2) the .Fed~~~~~ge~2. continues the consultation p.V\Ar.' w..... -espect to the entire action and obtains biol~lJical opinions at each incremental step stating that the incremental action is no I likely to jeopardize Ihe continued existence of listed species or result in tbe destruction or ad\'ef8e modification of critical habitat: (3) the federal agency fulfills its continuing obligation to conduct the research to develop sufficient data upon which to base the final biological opinion on the entire action; (4) the incremental step does not violate Section 7(d) of the Act concerning irreversible or irretrieva~lfP. commitments of resources' r...Ait~/ltl.ere is a reasonable Iikeliho-.xI of compliance with Section 7{a)(2) fo.~. the entire action. Section 402.15 sf...lles that upon reque5t. the Se...vice will iS5ue a biological opinion stating ils views on the entire acllon and the incremental step being considered fas to compliance with Section 7{a)(2lJ. The Federal agency mav then proceed with the incro:menlal step If it meets the above described conditions. 1 he views of the Service, as expressed in the biological opinion, may include identification of those modifications 10 the action that mey 9ssist the Federal agency In a\'oiding adverse effects on listed species or critical habitat. Further Discussion Section 402.16, entitled "yurther Discussion," has been added. Existing rules imply that the consultation process tenninates at the poinl at which a biological opinion is issued by the Service. Although not required. in some cases. it may be desirable for the Service. the Federal agency. and the applicant. if any, to continue the consultation process beyond fonnal consultation. For example, if the Service includes conservation recommendations or reasonable aDd prudent altematives in the biological opinion, the Federal agency or applicant may want to discuss these recommendations or alternatives with the Service. Recommendations or alternatives may he reflOed or indentified for the first time du.ring discussions between the Service and the F'.l;;!~J agcncy. This conlinuing dialogue is called "further discussion" in these regulations. In addition to reviewing draft biological opinions. further discussion further affords the Federal agency or applicant another opportunity for discussing reasonable and prudent alternatives with the Service. Further discussion gives the Federal agcncy or the applicanl time to evaluate the biological opinion and an opportunity to review the alternatives and recommendations suggeste-d therein. If further discussion takes place, the consullation process will terminate only after the Federal agency submils a written notification to the Service stating its flOal decision on the action. It should be noted that these proposed rules leave the timing of the termination of the consullation proccu 10 the II 'iseration of the Federal agency (unless 81 "'t applicant il lnvoh.ed). The Federal agtt. '\cy has 90 days after the termination of th." consultation process to apply for B" I olxemplion. Under the 1979 Amendmentl. an applicant bas 90 days after receiving a final denial of the permit or license to apply for an eKemption. This proces.a has IUpport in the legislath'e history of the 1979 Amendments 88 Indicated in the I I 1 I I I I