[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: 50CFR402.11]



[Page 745]

 

                    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 B_Consultation Procedures

 

Sec. 402.11  Early consultation.



    (a) Purpose. Early consultation is designed to reduce the likelihood 

of conflicts between listed species or critical habitat and proposed 

actions and occurs prior to the filing of an application for a Federal 

permit or license. Although early consultation is conducted between the 

Service and the Federal agency, the prospective applicant should be 

involved throughout the consultation process.

    (b) Request by prospective applicant. If a prospective applicant has 

reason to believe that the prospective action may affect listed species 

or critical habitat, it may request the Federal agency to enter into 

early consultation with the Service. The prospective applicant must 

certify in writing to the Federal agency that (1) it has a definitive 

proposal outlining the action and its effects and (2) it intends to 

implement its proposal, if authorized.

    (c) Initiation of early consultation. If the Federal agency receives 

the prospective applicant's certification in paragraph (b) of this 

section, then the Federal agency shall initiate early consultation with 

the Service. This request shall be in writing and contain the 

information outlined in Sec. 402.14(c) and, if the action is a major 

construction activity, the biological assessment as outlined in Sec. 

402.12.

    (d) Procedures and responsibilities. The procedures and 

responsibilities for early consultation are the same as outlined in 

Sec. 402.14(c)-(j) for formal consultation, except that all references 

to the ``applicant'' shall be treated as the ``prospective applicant'' 

and all references to the ``biological opinion'' or the ``opinion'' 

shall be treated as the ``preliminary biological opinion'' for the 

purpose of this section.

    (e) Preliminary biological opinion. The contents and conclusions of 

a preliminary biological opinion are the same as for a biological 

opinion issued after formal consultation except that the incidental take 

statement provided with a preliminary biological opinion does not 

constitute authority to take listed species.

    (f) Confirmation of preliminary biological opinion as final 

biological opinion. A preliminary biological opinion may be confirmed as 

a biological opinion issued after formal consultation if the Service 

reviews the proposed action and finds that there have been no 

significant changes in the action as planned or in the information used 

during the early consultation. A written request for confirmation of the 

preliminary biological opinion should be submitted after the prospective 

applicant applies to the Federal agency for a permit or license but 

prior to the issuance of such permit or license. Within 45 days of 

receipt of the Federal agency's request, the Service shall either:

    (1) Confirm that the preliminary biological opinion stands as a 

final biological opinion; or

    (2) If the findings noted above cannot be made, request that the 

Federal agency initiate formal consultation.