[Code of Federal Regulations] [Title 50, Volume 7] [Revised as of October 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 50CFR402.01] [Page 740-741] TITLE 50--WILDLIFE AND FISHERIES CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, PART 402_INTERAGENCY COOPERATION_ENDANGERED SPECIES ACT OF 1973, AS AMENDED--Table of Contents Subpart A_General Sec. 402.01 Scope. Subpart A_General Sec. 402.01 Scope. 402.02 Definitions. 402.03 Applicability. 402.04 Counterpart regulations. 402.05 Emergencies. 402.06 Coordination with other environmental reviews. 402.07 Designation of lead agency. 402.08 Designation of non-Federal representative. 402.09 Irreversible or irretrievable commitment of resources. Subpart B_Consultation Procedures 402.10 Conference on proposed species or proposed critical habitat. 402.11 Early consultation. 402.12 Biological assessments. 402.13 Informal consultation. 402.14 Formal consultation. 402.15 Responsibilities of Federal agency following issuance of a biological opinion. 402.16 Reinitiation of formal consultation. Subpart C_Counterpart Regulations For Implementing the National Fire Plan 402.30 Definitions. 402.31 Purpose. 402.32 Scope. 402.33 Procedures. 402.34 Oversight. Subpart D_Counterpart Regulations Governing Actions by the U.S. Environmental Protection Agency Under the Federal Insecticide, Fungicide and Rodenticide Act 402.40 Definitions. 402.41 Purpose. 402.42 Scope and applicability 402.43 Interagency exchanges of information. 402.44 Advance coordination for FIFRA actions. 402.45 Alternative consultation on FIFRA actions that are not likely to adversely affect listed species or critical habitat. 402.46 Optional formal consultation procedure for FIFRA actions. 402.47 Special consultation procedures for complex FIFRA actions. 402.48 Conference on proposed species or proposed critical habitat. Authority: 16 U.S.C. 1531 et seq. Source: 51 FR 19957, June 3, 1986, unless otherwise noted. (a) This part interprets and implements sections 7(a)-(d) [16 U.S.C. 1536(a)-(d)] of the Endangered Species Act of 1973, as amended (``Act''). Section 7(a) grants authority to and imposes requirements upon Federal agencies regarding endangered or threatened species of fish, wildlife, or plants (``listed species'') and habitat of such species that has been designated as critical (``critical habitat''). Section 7(a)(1) of the Act directs Federal agencies, in consultation with and with the assistance of the Secretary of the Interior or of Commerce, as appropriate, to utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed species. Such affirmative conservation programs must comply with applicable permit requirements (50 CFR parts 17, 220, 222, and 227) for listed species and should be coordinated with the appropriate Secretary. Section 7(a)(2) of the Act requires every Federal agency, in consultation with and with the assistance of the Secretary, to insure that [[Page 741]] any action it authorizes, funds, or carries out, in the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat. Section 7(a)(3) of the Act authorizes a prospective permit or license applicant to request the issuing Federal agency to enter into early consultation with the Service on a proposed action to determine whether such action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Section 7(a)(4) of the Act requires Federal agencies to confer with the Secretary on any action that is likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat. Section 7(b) of the Act requires the Secretary, after the conclusion of early or formal consultation, to issue a written statement setting forth the Secretary's opinion detailing how the agency action affects listed species or critical habitat Biological assessments are required under section 7(c) of the Act if listed species or critical habitat may be present in the area affected by any major construction activity as defined in Sec. 404.02. Section 7(d) of the Act prohibits Federal agencies and applicants from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. Section 7(e)-(o)(1) of the Act provide procedures for granting exemptions from the requirements of section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR part 451, and regulations governing the exemption process are found at 50 CFR parts 450, 452, and 453. (b) The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12 and the designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, the Federal agency shall contact the NMFS. For all other listed species the Federal Agency shall contact the FWS.