301 



MFo Smith. To start with, the way the law is presently con- 

 structed is the consultation occurs between the federal agency re- 

 sponsible, in this case National Marine Fisheries Service, or the 

 U.S. Fish & Wildlife Service, who share joint responsibility for ad- 

 ministering the Act, with the action agency, in this case it is our 

 federal agencies. The federal action agency provides a biological as- 

 sessment of the impacts and then we determine whether that ac- 

 tion is likely to jeopardize the existence of the species. And this is 

 required if the action may affect, it begins the process. 



In the Northwest we have, in the Usting process and other parts 

 of ESA, attempted to maintain an open process and to have in- 

 volvement. The Section 7 process does not allow that, but there are 

 some exceptions that have occurred that have allowed an opening 

 up and may lead the way for a solution. 



Mr, DeFazio, Does it allow it on a statutory basis, an adminis- 

 trative rule basis? 



Mr. Smith. It is between the two agencies. 



Mr. DeFazio. Minimally the two agencies could have the discus- 

 sions at a table in a room like this with microphones and an audi- 

 ence out there. That is not precluded by law certainly; it does not 

 have to be a confidential, secret discussion. 



Mr. Smith. I am sorry, I am not able to cite you, but I can get 

 you the cite, if you wish. 



[The information follows:] 



