[Code of Federal Regulations]
[Title 50, Volume 7]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR402.01]

[Page 814-815]
 
                    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 
 
                            Subpart A_General
 
Sec. 402.01  Scope.


    (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 815]]

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.