(C) The Chairman of the Council of Economic Advisors. The National Environmental Policy Act (NEPA) and Section 7 Endangered Species Act (ESA) processes interact in the early phases of the environmental analysis of a project. Cooperation with the States, Sec. The proposed regulations would not affect the consultation obligations of Federal agencies pursuant to section 7 of the Act. The counterpart regulations, authorized by 50 CFR 402.04, complement the consultation process by providing an alternative process for completing section 7 consultation for projects that authorize, fund, or carry out actions that support the NFP. (5)(A) Five members of the Committee or their representatives shall constitute a quorum for the transaction of any function of the Committee, except that, in no case shall any representative be considered in determining the existence of a quorum for the transaction of any function of the Committee if that function involves a vote by the Committee on any matter before the Committee. (b) OPINION OF SECRETARY.—(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency. (B) The Secretary of the Army. See Appendix L of the Opinion for more information. Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project and product proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. (D) The Administrator of the Environmental Protection Agency. Fish and Wildlife Service (Service) when any action the agency carries out, funds, or authorizes (such as through a permit) may affect a listed endangered or threatened species. (7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist him in carrying out his duties under this section. The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7 of title 5, United States Code. (D) All meetings and records of the Committee shall be open to the public. Action area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. This process usually begins as informal consultation. 18 (5) Within 140 days after making the determinations under paragraph (3) or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report discussing— (A) the availability of reasonable and prudent alternatives to the agency action, and the nature and extent of the benefits of the agency action and of alternative courses of action consistent with conserving the species or the critical habitat; (B) a summary of the evidence concerning whether or not the agency action is in the public interest and is of national or regional significance; (C) appropriate reasonable mitigation and enhancement measures which should be considered by the Committee; and (D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d). Pocillopora grandis coral colonies serve as a welcome shelter for these butterflyfish and damselfish. 17 (4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556 (other than subsection (b)(1) and (2) thereof) of title 5, United States Code, and prepare the report to be submitted pursuant to paragraph (5). 2 Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico - GRBO (PDF, 19 pages), Programmatic Biological Opinion on a Modification of the USACE Jacksonville District's Programmatic General Permit for Live Rock and Marine Shellfish Aquaculture in Florida State Waters (PDF, 61 pages), Framework Biological Opinion on Deepwater Horizon Oil Spill Final Programmatic Damage Assessment and Restoration Plan and Final Programmatic Environmental Impact Statement (PDF, pages 414), Biological Opinion on the Continued Authorization and Implementation of National Marine Fisheries Service' s Integrated Fisheries Independent Monitoring Activities (PDF, 428 pages), Biological Opinion on the Continued Implementation of the Sea Turtle Conservation Regulations under the ESA and the Continued Authorization of the Southeast U.S. Shrimp Fisheries in Federal Waters under the Magnuson-Stevens Fishery Management Conservation Act (PDF, 346 pages), Biological Opinion on the Continued Authorization of the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Atlantic and Gulf of Mexico under the Magnuson-Stevens Fishery Management and Conservation Act (PDF, 226 pages). (l) COMMITTEE ORDERS.—(1) If the Committee determines under subsection (h) that an exemption should be granted with respect to any agency action, the Committee shall issue an order granting the exemption and specifying the mitigation and enhancement measures established pursuant to subsection (h) which shall be carried out and paid for by the exemption applicant in implementing the agency action. The benefit is for people who have a health condition or disability which limits their capability to work. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. This applies particularly to "take," which can include any act that kills or injures threatened species, and may include habitat modification. Any such biological assessment must, however, be conducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency. Background: The ESA Section 7 CRs provide an optional alternative to the standard section 7 consultation process, and were developed specifically for agency projects that authorize, fund, or carry out actions that support the National Fire Plan (NFP). Section 7 of the Endangered Species Act (ESA) outlines the procedures for Federal interagency cooperation to conserve Federally listed species and designated critical habitat. Biological Opinions issued since 2010 can be found in the NOAA library repository. Part 402 that implement section 7(a)(2) of the ESA (84 Fed. Joint Counterpart Endangered Species Act Section 7 Consultation Regulations - FIFRA (pesticides)(69 FR 47732, August 5, 2004) Joint Counterpart Endangered Species Act Section 7 Consultation Regulations - National Fire Plan (68 FR 68254, December 8, 2003) Evaluating the Net Benefit of Hazardous Fuels Treatment Projects (68 FR 1629, January 13, 2003) (B) An exemption shall be permanent under subparagraph (A) unless— (i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of a species that was not the subject of consultation under subsection (a)(2) or was not identified in any biological assessment conducted under subsection (c), and (ii) the Committee determines within 60 days after the date of the Secretary’s finding that the exemption should not be permanent. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. New Pilot Project Offers Quick Answers About Important Consultations, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Report a Stranded or Injured Marine Animal, The Environmental Consultation System (ECO), Revision No. The applicant for an exemption shall be referred to as the “exemption applicant” in this section. DATES: This final rule … ESA Section 7 regulations have long established a 135-day time frame for completing formal consultations. (2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned. NMFS (collectively referred to as the Services) revised the regulations at 50 C.F.R. (4) If after consultation under subsection (a)(2), the Secretary concludes that— (A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection; (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and (C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 101(a)(5) of the Marine Mammal Protection Act of 1972; the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that— (i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 101(a)(5) of the Marine Mammal Protection Act of 1972 with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). Any applicant may request the Secretary to carry out such mitigation and enhancement measures. The final rules concern Section 4 (listing of endangered and to be a prohibited taking of the species concerned. Under Section 7 of the Endangered Species Act, federal agencies must consult with NOAA Fisheries on activities that may affect ESA-listed species. Under Section 7 of the Endangered Species Act, federal agencies must consult with NOAA Fisheries on activities that may affect ESA-listed species. Title 50, part 402, of the Code of Federal Regulations establishes the 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 (the “Secretaries”), to insure 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 cri… (2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. ): Provided, That an environmental impact statement which discusses the impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by such order. (D) The Committee may use the United States mails in the same manner and upon the same conditions as a Federal agency. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection. (1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. (g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.—(1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license applicant may apply to the Secretary for an exemption for an agency action of such agency if, after consultation under subsection (a)(2), the Secretary’s opinion under subsection (b) indicates that the agency action would violate subsection (a)(2). (2)(A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f), not later than 90 days after the completion of the consultation process; except that, in the case of any agency action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. Reg. (f) REGULATIONS.—Not later than 90 days after the date of enactment of the Endangered Species Act Amendments of 1978, the Secretary shall promulgate regulations which set forth the form and manner in which applications for exemption shall be submitted to the Secretary and the information to be contained in such applications. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act. (e)(1) ESTABLISHMENT OF COMMITTEE.—There is established a committee to be known as the Endangered Species Committee (hereinafter in this section referred to as the “Committee”). Regulations at 50 CFR 402.04 provide that “the consultation procedures may be superseded for a particular Federal agency by joint counterpart regulations among that agency, the Fish and Wildlife Service, and the National Marine Fisheries Service.” The preamble to the 1986 regulations for implementing section 7 of the ESA states that “such counterpart regulations must retain the overall degree of protection afforded listed species required by the [ESA] and these regulations. People will only be able to claim the benefit where … All necessary mitigation and enhancement measures shall be authorized prior to the implementing of the agency action and funded concurrently with all other project features. (B) The Secretary of the Interior shall be the Chairman of the Committee. 4332). Credit: Jeffreyw (CC BY 2.0). (4)(A) Members of the Committee shall receive no additional pay on account of their service on the Committee. (i) REVIEW BY SECRETARY OF STATE.—Notwithstanding any other provision of this Act, the Committee shall be prohibited from considering for exemption any application made to it, if the Secretary of State, after a review of the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section that the granting of any such exemption and the carrying out of such action would be in violation of an international treaty obligation or other international obligation of the United States. (C) Subject to the Privacy Act, the Committee may secure directly from any Federal agency information necessary to enable it to carry out its duties under this section. The ESA Section 7 agency consultations rule is available here. 4 (k) SPECIAL PROVISIONS.—An exemption decision by the Committee under this section shall not be a major Federal action for purposes of the National Environ mental Policy Act of 1969 (42 U.S.C. (d) LIMITATION ON COMMITMENT OF RESOURCES.—After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2). 1531 et seq.. Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Environmental Conservation Online System (ECOS), Candidate Conservation Agreements with Assurances, Information, Planning and Conservation System (IPaC), Recovery Online Activity Reporting System (ROAR), Endangered Species Regulations and Policies, brief presentation about this section of the Act, Sec. §§1531 et. 6 Photo: NOAA Fisheries/Ari Halperin. (3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species. (m) NOTICE.—The 60-day notice requirement of section 11(g) of this Act shall not apply with respect to review of any final determination of the Committee under subsection (h) of this section granting an exemption from the requirements of subsection (a)(2) of this section. For the best experience, please use a modern browser such as Chrome, Firefox, or Edge. 1 Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico (PDF, pages 28), Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico (PDF, pages 128), Appendix A: Avoidance of Effects of Select Restoration Activities Eligible for Streamlined Project-Level Consultation through Implementation of Specified Project, The 2020 SARBO was revised July 31, 2020, and all future projects covered under SARBO 2020 will be required to adhere to the PDCs as modified. Findings, purposes, and policy, Sec. These federal agency consultations are designed to help federal agencies in fulfilling their duty to ensure that their actions do not jeopardize the continued existence of a species, or destroy or adversely modify designated critical habitat. (2) The applicant receiving such exemption shall include the costs of such mitigation and enhancement measures within the overall costs of continuing the proposed action. 7. A copy of such petition shall be transmitted by the clerk of the court to the Committee and the Committee shall file in the court the record in the proceeding, as provided in section 2112, of title 28, United States Code. Section 4, among other things, deals with adding species to or removing species from ESA protection and designating critical habitat; section 7 covers consultations with other federal agencies. (4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. (6) To the extent practicable within the time required for action under subsection (g) of this section, and except to the extent inconsistent with the requirements of this section, the consideration of any application for an exemption under this section and the conduct of any hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5, United States Code. Administrator of the Interior shall be open to the Southeast Region 's ESA Section 7 interagency main. 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