[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: 50CFR402.14]



[Page 747-751]

 

                    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. 402.14  Formal consultation.



    (a) Requirement for formal consultation. Each Federal agency shall 

review its actions at the earliest possible time to determine whether 

any action may affect listed species or critical habitat. If such a 

determination is made, formal consultation is required, except as noted 

in paragraph (b) of this section. The Director may request a Federal 

agency to enter into consultation if he



[[Page 748]]



identifies any action of that agency that may affect listed species or 

critical habitat and for which there has been no consultation. When such 

a request is made, the Director shall forward to the Federal agency a 

written explanation of the basis for the request.

    (b) Exceptions. (1) A Federal agency need not initiate formal 

consultation if, as a result of the preparation of a biological 

assessment under Sec. 402.12 or as a result of informal consultation 

with the Service under Sec. 402.13, the Federal agency determines, with 

the written concurrence of the Director, that the proposed action is not 

likely to adversely affect any listed species or critical habitat.

    (2) A Federal agency need not initiate formal consultation if a 

preliminary biological opinion, issued after early consultation under 

Sec. 402.11, is confirmed as the final biological opinion.

    (c) Initiation of formal consultation. A written request to initiate 

formal consultation shall be submitted to the Director and shall 

include:

    (1) A description of the action to be considered;

    (2) A description of the specific area that may be affected by the 

action;

    (3) A description of any listed species or critical habitat that may 

be affected by the action;

    (4) A description of the manner in which the action may affect any 

listed species or critical habitat and an analysis of any cumulative 

effects;

    (5) Relevant reports, including any environmental impact statement, 

environmental assessment, or biological assessment prepared; and

    (6) Any other relevant available information on the action, the 

affected listed species, or critical habitat.



Formal consultation shall not be initiated by the Federal agency until 

any required biological assessment has been completed and submitted to 

the Director in accordance with Sec. 402.12. Any request for formal 

consultation may encompass, subject to the approval of the Director, a 

number of similar individual actions within a given geographical area or 

a segment of a comprehensive plan. This does not relieve the Federal 

agency of the requirements for considering the effects of the action as 

a whole.

    (d) Responsibility to provide best scientific and commercial data 

available. The Federal agency requesting formal consultation shall 

provide the Service with the best scientific and commercial data 

available or which can be obtained during the consultation for an 

adequate review of the effects that an action may have upon listed 

species or critical habitat. This information may include the results of 

studies or surveys conducted by the Federal agency or the designated 

non-Federal representative. The Federal agency shall provide any 

applicant with the opportunity to submit information for consideration 

during the consultation.

    (e) Duration and extension of formal consultation. Formal 

consultation concludes within 90 days after its initiation unless 

extended as provided below. If an applicant is not involved, the Service 

and the Federal agency may mutually agree to extend the consultation for 

a specific time period. If an applicant is involved, the Service and the 

Federal agency may mutually agree to extend the consultation provided 

that the Service submits to the applicant, before the close of the 90 

days, a written statement setting forth:

    (1) The reasons why a longer period is required,

    (2) The information that is required to complete the consultation, 

and

    (3) The estimated date on which the consultation will be completed.



A consultation involving an applicant cannot be extended for more than 

60 days without the consent of the applicant. Within 45 days after 

concluding formal consultation, the Service shall deliver a biological 

opinion to the Federal agency and any applicant.

    (f) Additional data. When the Service determines that additional 

data would provide a better information base from which to formulate a 

biological opinion, the Director may request an extension of formal 

consultation and request that the Federal agency obtain additional data 

to determine how or to what extent the action may affect listed species 

or critical habitat. If formal consultation is extended by mutual 

agreement according to Sec. 402.14(e), the



[[Page 749]]



Federal agency shall obtain, to the extent practicable, that data which 

can be developed within the scope of the extension. The responsibility 

for conducting and funding any studies belongs to the Federal agency and 

the applicant, not the Service. The Service's request for additional 

data is not to be construed as the Service's opinion that the Federal 

agency has failed to satisfy the information standard of section 7(a)(2) 

of the Act. If no extension of formal consultation is agreed to, the 

Director will issue a biological opinion using the best scientific and 

commercial data available.

    (g) Service responsibilities. Service responsibilities during formal 

consultation are as follows:

    (1) Review all relevant information provided by the Federal agency 

or otherwise available. Such review may include an on-site inspection of 

the action area with representatives of the Federal agency and the 

applicant.

    (2) Evaluate the current status of the listed species or critical 

habitat.

    (3) Evaluate the effects of the action and cumulative effects on the 

listed species or critical habitat.

    (4) Formulate its biological opinion as to whether the action, taken 

together with cumulative effects, is likely to jeopardize the continued 

existence of listed species or result in the destruction or adverse 

modification of critical habitat.

    (5) Discuss with the Federal agency and any applicant the Service's 

review and evaluation conducted under paragraphs (g)(1) through (3) of 

this section, the basis for any finding in the biological opinion, and 

the availability of reasonable and prudent alternatives (if a jeopardy 

opinion is to be issued) that the agency and the applicant can take to 

avoid violation of section 7(a)(2). The Service will utilize the 

expertise of the Federal agency and any applicant in identifying these 

alternatives. If requested, the Service shall make available to the 

Federal agency the draft biological opinion for the purpose of analyzing 

the reasonable and prudent alternatives. The 45-day period in which the 

biological opinion must be delivered will not be suspended unless the 

Federal agency secures the written consent of the applicant to an 

extension to a specific date. The applicant may request a copy of the 

draft opinion from the Federal agency. All comments on the draft 

biological opinion must be submitted to the Service through the Federal 

agency, although the applicant may send a copy of its comments directly 

to the Service. The Service will not issue its biological opinion prior 

to the 45-day or extended deadline while the draft is under review by 

the Federal agency. However, if the Federal agency submits comments to 

the Service regarding the draft biological opinion within 10 days of the 

deadline for issuing the opinion, the Service is entitled to an 

automatic 10-day extension on the deadline.

    (6) Formulate discretionary conservation recommendations, if any, 

which will assist the Federal agency in reducing or eliminating the 

impacts that its proposed action may have on listed species or critical 

habitat.

    (7) Formulate a statement concerning incidental take, if such take 

may occur.

    (8) In formulating its biological opinion, any reasonable and 

prudent alternatives, and any reasonable and prudent measures, the 

Service will use the best scientific and commercial data available and 

will give appropriate consideration to any beneficial actions taken by 

the Federal agency or applicant, including any actions taken prior to 

the initiation of consultation.

    (h) Biological opinions. The biological opinion shall include:

    (1) A summary of the information on which the opinion is based;

    (2) A detailed discussion of the effects of the action on listed 

species or critical habitat; and

    (3) The Service's opinion on whether the action is likely to 

jeopardize the continued existence of a listed species or result in the 

destruction or adverse modification of critical habitat (a ``jeopardy 

biological opinion''); or, the action is not likely to jeopardize the 

continued existence of a listed species or result in the destruction or 

adverse modification of critical habitat (a ``no jeopardy'' biological 

opinion). A ``jeopardy'' biological opinion shall include reasonable and 

prudent alternatives, if any. If the Service is unable to develop such 

alternatives, it will indicate that



[[Page 750]]



to the best of its knowledge there are no reasonable and prudent 

alternatives.

    (i) Incidental take. (1) In those cases where the Service concludes 

that an action (or the implementation of any reasonable and prudent 

alternatives) and the resultant incidental take of listed species will 

not violate section 7(a)(2), and, in the case of marine mammals, where 

the taking is authorized pursuant to section 101(a)(5) of the Marine 

Mammal Protection Act of 1972, the Service will provide with the 

biological opinion a statement concerning incidental take that:

    (i) Specifies the impact, i.e., the amount or extent, of such 

incidental taking on the species;

    (ii) Specifies those reasonable and prudent measures that the 

Director considers necessary or appropriate to minimize such impact;

    (iii) In the case of marine mammals, specifies those measures that 

are necessary to comply with section 101(a)(5) of the Marine Mammal 

Protection Act of 1972 and applicable regulations with regard to such 

taking;

    (iv) Sets forth the terms and conditions (including, but not limited 

to, reporting requirements) that must be complied with by the Federal 

agency or any applicant to implement the measures specified under 

paragraphs (i)(1)(ii) and (i)(1)(iii) of this section; and

    (v) Specifies the procedures to be used to handle or dispose of any 

individuals of a species actually taken.

    (2) Reasonable and prudent measures, along with the terms and 

conditions that implement them, cannot alter the basic design, location, 

scope, duration, or timing of the action and may involve only minor 

changes.

    (3) In order to monitor the impacts of incidental take, the Federal 

agency or any applicant must report the progress of the action and its 

impact on the species to the Service as specified in the incidental take 

statement. The reporting requirements will be established in accordance 

with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 220.45 and 228.5 for 

NMFS.

    (4) If during the course of the action the amount or extent of 

incidental taking, as specified under paragraph (i)(1)(i) of this 

Section, is exceeded, the Federal agency must reinitiate consultation 

immediately.

    (5) Any taking which is subject to a statement as specified in 

paragraph (i)(1) of this section and which is in compliance with the 

terms and conditions of that statement is not a prohibited taking under 

the Act, and no other authorization or permit under the Act is required.

    (j) Conservation recommendations. The Service may provide with the 

biological opinion a statement containing discretionary conservation 

recommendations. Conservation recommendations are advisory and are not 

intended to carry any binding legal force.

    (k) Incremental steps. When the action is authorized by a statute 

that allows the agency to take incremental steps toward the completion 

of the action, the Service shall, if requested by the Federal agency, 

issue a biological opinion on the incremental step being considered, 

including its views on the entire action. Upon the issuance of such a 

biological opinion, the Federal agency may proceed with or authorize the 

incremental steps of the action if:

    (1) The biological opinion does not conclude that the incremental 

step would violate section 7(a)(2);

    (2) The Federal agency continues consultation with respect to the 

entire action and obtains biological opinions, as required, for each 

incremental step;

    (3) The Federal agency fulfills its continuing obligation to obtain 

sufficient data upon which to base the final biological opinion on the 

entire action;

    (4) The incremental step does not violate section 7(d) of the Act 

concerning irreversible or irretrievable commitment of resources; and

    (5) There is a reasonable likelihood that the entire action will not 

violate section 7(a)(2) of the Act.

    (l) Termination of consultation. (1) Formal consultation is 

terminated with the issuance of the biological opinion.

    (2) If during any stage of consultation a Federal agency determines 

that its proposed action is not likely to occur, the consultation may be 

terminated by written notice to the Service.

    (3) If during any stage of consultation a Federal agency determines, 

with the concurrence of the Director, that



[[Page 751]]



its proposed action is not likely to adversely affect any listed species 

or critical habitat, the consultation is terminated.



[51 FR 19957, June 3, 1986, as amended at 54 FR 40350, Sept. 29, 1989]