WSP04495

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 6/29/1983
• Author: Federal Register
• Title: Federal Register - DOI-FWS - DOC-NOAA - Interagency Cooperation-Endangered Species Act of 1973-Proposed Rule
• Water Supply Pro - Doc Type: Publication

002916

Federal Register I Vol. 48. No. ]26 I Wednesday, lune 29. 1983 I Proposed Rules

29997

Conference Reporlun tho~f'
Amendments:
The e>\emplion proceu W>l!l w..'f/n..d 10
TI."3olve elKbnllered ~~l(>>> cunflicfll aBeT
other "dQUnglrillllle rwnffiif!1l. includinR
coneuhllliun,llll1/ebe"'lIu.hllu51ed.ltmake.
nn I{'nlle 10 lllilial(' an ",...emption procen
hefQre II hllS been delt'nnine<.l thaI there is ot
n!'edfOfanr>;empHoninlhf"ftr.1I plllCf' ...
Thus.ifllt'ederaI1l8enq'dt>eideslhalil
Q1nnoICllmpl)',,'ithlherequi~lllt."nl.Or
Sec!iQf\ 7 afler consuhalion w,th the ...lIdlife-
88enC)'.itcllnfiJeforanl':\emp:lon "..jthill90
l/u}s uf thut d~'ision. !I,R. Rep. Y6-6s.", Il6th
Cons_ znd $t>ss.. pp. 14--IS [19791 (F."pt Il~p
IIdded.1
Reinitiation
Finallv. these rules discuss .....hen
reinitiation of Cormal consultation is
necessary. The reinitiation provisions
apply to aclions thai remain subjl'ct to
some future Federal action or
authorization. Thus. in the case of II
Fedt!rlll action. rt>initiBlion wauld oat be
required if the action was completed
and no further Federal discrelionary
control or in\'olvement remained.
Similaruy. in the CB!ll' where a permit or
license had been granted. reinitiation
would not be appropriate unless the
permitting or licensing agency retained
jurisdiction over the matter under the
temul of the pennit or license or as
otherwise authorized by law.
Summary
The Amendments made several
cllllnges in the conllullalion
requirements of Section 1 and lhe
Service believes that a consistent
response by the Federlll agencies 10
those Amendmenls. a8 implemented by
these proposed rules. wlll facilitate
successful compliance with Section 7 of
the Act.
The Sen.ice believes that the roles
finally adopted will Ben'e as an effective
1001 for the early resolution of potential
conflicts invol\-'ing listed species. The
Service solicits comments or suggestions
from tht' public. governml'ntal agencies.
or any other interested pilrty on lhese
regulations,
The primary authoT!l of this proposal
are David Wesley. Nancy Sweeney. and
Michael Young. Department of the
Interior: and Charles Kamclla.
Department of Commerce,
The Department of the Inlerior. as
lead agency in the development of these
proposed regulations, has prepared a
draft environmental assessmenHn
conjunction with thill proposal. A
determination .....iII be made at the time
of the final rule as to whether this is a
major F'ederal action significantl)o.
affecting the quality of the human
environmf'nt within Ihe meaning of
Seclion 102{21lCI of thl! Nalional

Environmental Polit). Act of 1969
implemf.'l1ted at 40 CFR Paris 151:U-15Of1).
These procedural regulCilions simply
providl' a uniform approach for
organizing consultation required by
Seclion 7 of the Act. Compliance with
the procedures 8S outlined in these
regulations do not appear Itl this lime to
have any significan!. direct. or indirect
ad\'erse en\'ironmental impact. It also
has been determined that these
regulations do nol constitute major rules
as defined in Execuli\"e Order lZ291.
The Department also has certified.
under the lerms of the Reguldtory
f1elr>ibility Act {5 U.S.C, 501}. that the
proposed regulations will not haH~ a
signH'icClnt economic impact on a
substantial number of small entities. The
regulations are directed at Federal
actions. The cosls to small entities Bre
those involved with timing and dala
gathering. if requested by the Federal
agenC)'. Even if these costs were passed
on.. the analysi8 under the Regulatory
Flexibility Act has concluded that these
are Insubstantial. The Department has
determined tha t these pro pOlled rules do
not contain a "collection of infonnation"
requirement. and thus the pro\'isions of
the Paperwork Reduction Act do not
apply. This is because all information
required in the consultation process is to
be submilled to the Service by or
through Ihe Federal agency involved.
The analyses under Executive Order
12291, the Regulatory Flexibility Act.
and NEPA are available to the public at
the Office of Endangered Species. U.S.
Fish and Wildlife Service at the address
listed above. Further information on
thelle mailers is here b)' solicited,

Ust of Subjects in 50 CFR Part .J02

Endangered and threalened wildlife.
Fish. Plants (agriculture).

Proposed Regulation Promulgation

Accordingly. the Service proposes to
re\ise 5(} CFR Part 402 to read as
follows:

PART 402-INTERAGENCV
COOPERATION-ENDANGERED
SPECIES ACT OF 1973. AS AMENDED
Subpart A-Qefleral
.\OZ.t Scope.
40<:.2 nennilions.
403.3 ApplieotbililY.
4OZ.~ Counlerpart fl>gulati"ns.
WZ.S Emf!lllendll'B.
.w2.6-WZ.9 IResef'\'~]
Subpart S-Consultalion Precess
-40Z.10 Consolidation 01 infonr,al and formlll
C(ln.ul!alion'andconferen(t'.
coordinlllionwithoth~ll'1l\ironmental
rf!\'ip,,'s.anddesi(!nationoflpadallf'nq.
-Ilr.!l1 11Tl'\'pl"SibleorifTelril'\'ab,..
cnmmifmenlofl'f'sources.

s...
.J()2-1Z Infonnill con~ultdlil,".
.w~, 13 Conference on propost'd species or
propnsoocriliCillhabillll.
4oz.14 Earlycuosullation.
WZ.IS Formal conJultaliun
4ln..16 Furthetdiscuuion.
4ll2,17 Rl'spon.ibilltin of Ft'.-Ieral d,llt'ncy
rullowingiullllnceor", biological
upinion.
-402.t8 Reinili<lllOnoffurmalcuO$ull<ltion.
402.19lncidenlllltalo.e.
,-\ulhorily: Endangered Spe-cies Act [Pub. 1..
93-2M,87SI11t.884;Pub.L9~:!.92Stat.
3751; Pub, L 96-159. 93 Stal1:!2:5; and Pub. L
97-30.t 96 StilI. 1411; 116 U.S C. 1531 et seq.lI.
Subpart A-General
I 402 1 SCope.
This part interprets and implemE'nts
Sections 7 {allhrough (dJ of the
Endangered Species Act of 1973, as
amended (hereinafter referred to as the
"Act"). The U.S. Fish and Wildlife
SeT\"ice IFWS) and the National Marine
Fisheries Service (NMFSlshare
responsibilities. for administering the
Act. The Lisls of Endangered and
Threatened Wildllfe snd Plants are
found in 5OCF'R 17.11 and 17.12. and the
designated critical habitats are found in
50 CFR 17.95 and 17.96119S1).
Endangered or threatened species under
the jurisdiction of the NMFS are located
In 50 CF'R 222.23Ialllnd 227.4. If the
subject species is cited in 50 erR
2Z2.23{a} or 227.4, the agency shall
contact the ~MFS. Otherwise the
Federal agenc)' shall contact the FWS.
la} Section 7(a) {16 U.S.C. lS36{alJ
imposes several requirements upon
F'edersl agencies regarding all
endangered or threatened species of
fish. wildlife. or plants (hereinafter
referred 10 as listed species) and habitat
of such species which has been
designated as criticallhereinafter
referred to as critical habitat). Section
7{a){lJ directs Federal dgendt'S, ill
consultation with and with the
assistance of the Secretary. to utilize
their authorities to further the purposes
of the Act by carrying oul consen'allon
programs for listed species. Such
afftrmati\'e conservation programs must
comply with any applicable permit
requirements of 50 CFR Parts 17, 220,
222. and 4'7 for listed species and
should be fully coordinated ~1th the
appropriate Secretary. Section 7(a)f21 .
requires every Federal agency, in
consultation with and with the
assistance of the Secretary. to insure
that any actions it authorizes. funds, or
carries Oul are not likely to jeopardize
the continued existence of an)' listed
species or result in the destruction or
ad\.erse modification of critical habitat.
Section 7{at(3) authorizes prospective

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