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December 22, 2011
In Reply Refer To:
6600 (230) P  
Instruction Memorandum No. 2012-049
Expires: 9/30/2013
To:                   All Field Office Officials
From:               Assistant Director, Renewable Resources and Planning
Subject:            Discontinued Use of the March 2004 Joint Counterpart Regulations’  
Alternative Consultation Agreement for Conducting Endangered Species Act Section 7 Consultations for National Fire Plan Projects
Program Area:  Fish and Wildlife Conservation.
Purpose: This Instruction Memorandum (IM) transmits direction to all Field Offices to discontinue use of the Alternative Consultation Agreement (ACA), when conducting Endangered Species Act (ESA) Section 7 Consultation for National Fire Plan Projects. 
Policy/Action: The Bureau of Land Management (BLM), in agreement with U.S. Fish and Wildlife Service (USFW), National Marine Fisheries Service (jointly, the Services), and the Forest Service (FS), has terminated the March 2004 ACA between the four agencies. This action took effect on the day of its posting in the Federal Register: Vol. 76, No. 191/ Monday, October 3, 2011. All Field Offices must discontinue use of the ACA when conducting National Fire Plan Projects; rather, resume the standard Section 7 Consultation processes, including informal consultation.
Timeframe:  All Field Offices shall immediately terminate the use of the ACA when conducting ESA Section 7 Consultation for National Fire Plan Projects.
Budget Impact:  Although the Joint Counterpart Regulations were developed, in part, to streamline the Section 7 Consultation process, improving the efficiency and effectiveness; the desired outcome has not been achieved. For a variety of reasons, the ACA has been underutilized by the BLM. The decision to terminate use of the ACA is due to the BLM’s low use of the consultation tool, and the unanticipated high administrative costs incurred. Because of the high administrative costs of implementing the ACA, discontinuing its use should have a beneficial impact to budget.   

Background: On December 8, 2003, the Services, in cooperation with the FS, Bureau of Indian Affairs (BIA), BLM, and National Park Service (NPS), issued Joint Counterpart Regulations for Section 7 Consultation (Federal Register, pages 68254- 68265). Codified in 50 CFR part 402 subpart C, the Counterpart Regulations provide an optional alternative to the standard Section 7 Consultation process described in subparts A and B, and were developed specifically for agency projects that authorize, fund, or carry out actions that support the National Fire Plan (NFP). The NFP, part of the 2002 Healthy Forests Initiative, is an interagency strategy for reducing the risk of catastrophic wildland fires and restoring fire-adapted ecosystems. The intent of the Counterpart Regulations was to eliminate the need to conduct informal consultation and obtain written concurrence from the Services for those NFP actions that the action agency determined are “not likely to adversely affect” any listed species or designated critical habitat. 

In March 2004, the BLM signed an ACA with the Services to implement the provisions of the Joint Counterpart Regulations. The ACA established the procedures to implement the Counterpart Regulations, including the development of a national monitoring team comprised of the Services and action agencies.
The stated goal of the ACA to improve efficiency and effectiveness of Section 7 Consultation has not been met. For a variety of reasons, the ACA is being underutilized. Given the BLM’s low use of the tool, and the unanticipated high administrative costs incurred, it has been determined that the costs outweigh the benefits of the program. 
Manual/Handbook Sections Affected:  None.
Coordination: The BLM and FS, in coordination with the Services, determined to discontinue use of the ACA. The BLM and FS have each submitted a letter to the Services, notifying them of their recommendation and rationale in terminating the use of the ACA. Upon agreement by all parties, the termination of the ACA was posted in the Federal Register: Vol. 76, No. 191/ Monday, October 3, 2011. With the issuance of this IM, all coordination has been satisfied.
Contact: If there are any questions regarding this IM, please contact Dwight Fielder, Division Chief, Fish and Wildlife Conservation, or Kim Tripp, Endangered Species Specialist, at 202-912-7237.
Signed by:                                                                    Authenticated by:
Nancy E. Dean                                                              Robert M. Williams
Acting, Assistant Director                                             Division of IRM Governance,WO-560
Renewable Resources and Planning

Last updated: 01-18-2012