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cooperation with the action agency. The regulations provide for 

 obtaining comments on a draft biological opinion only if it is a 

 draft jeopardy opinion, obtaining comments only from the action 

 agency, and only for the purpose of obtaining the agency's 

 analysis of any reasonable and prudent alternatives included. An 

 applicant may request a copy of the draft opinion from the action 

 agency. 



The absence of statutory or regulatory provisions for full public 

 participation during the interagency consultation process 

 reflects, in part, the fact that the consultation and resulting 

 biological opinion do not represent final decisions concerning 

 the agency action. The action agency that is ultimately 

 responsible for the final decision often involves the public in 

 its decisionmaking process through the Administrative Procedures 

 Act, National Environmental Policy Act or other statutory 

 authority, and the biologcial opinion of NMFS becomes part of 

 that agency's administrative record. 



Practical considerations, most notably of providing timely advice 

 to action agencies, do not weigh in favor of public participation 

 in consultations. (However, there are situations where NMFS 

 needs and should use the expertise of entities outside the 

 consultation, particularly state and tribal governments. An 

 example would be their participation in analyzing the effects on 

 listed fish of a complex of actions, such as harvest, hydrosystem 

 and hatchery operations.) NMFS is required to issue its 

 biological opinion within 135 days of the start of the 

 consultation, with 90 days provided for consultation and 45 days 

 provided to complete a biological opinion. Consultations are an 

 evolving process, which includes exchanges of information between 

 the consulting agencies and often involves significant changes 

 along the way to the proposed action and the analysis of impacts. 

 If NMFS chose to permit greater public participation, the only 

 definite mileposts where it would be logical to provide the 

 public notice and opportunity to comment (the usual minimum is 30 

 days) would be: NMFS's receipt of the biological assessment; and 

 NMFS's preparation of a complete draft biological opinion. (The 

 alternative to formal notice-and-comment — having "interested" 

 members of the public participate continuously, in a role 

 analogous to an applicant — runs the risk of either making the 

 consultation unwieldy or inviting charges of excluding other 

 would-be participants.) 



(a) . Most agencies are quite willing to provide copies of 

 their biological assessments to the public, who are then 

 free to supply information and views to NMFS. NMFS believes 

 it is the action agency's responsibility to obtain and 

 utilize the best scientific and commercial information 

 available in the preparation of their biological 

 assessments. As a matter of policy, NMFS does not 

 distribute biological assessments for public comment. 



