[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: 50CFR452.03]

[Page 864]
 
                    TITLE 50--WILDLIFE AND FISHERIES
 
CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, 
 
PART 452_CONSIDERATION OF APPLICATION BY THE SECRETARY--Table of Contents
 
Sec. 452.03  Threshold review and determinations.

    (a) Threshold determinations. Within 20 days after receiving an 
exemption application, or a longer time agreed upon between the 
exemption applicant and the Secretary, the Secretary shall conclude his 
review and determine:
    (1) Whether any required biological assessment was conducted;
    (2) To the extent determinable within the time period provided, 
whether the Federal agency and permit or license applicant, if any, have 
refrained from making any irreversible or irretrievable commitment of 
resources; and
    (3) Whether the Federal agency and permit or license applicant, if 
any, have carried out consultation responsibilities in good faith and 
have made a reasonable and responsible effort to develop and fairly 
consider modifications or reasonable and prudent alternatives to the 
proposed action which would not violate section 7(a)(2) of the Act.
    (b) Burden of proof. The exemption applicant has the burden of 
proving that the requirements of Sec. 452.03(a) have been met.
    (c) Negative finding. If the Secretary makes a negative finding on 
any threshold determination, the Secretary shall deny the application 
and notify the exemption applicant in writing of his finding and grounds 
therefor. The exemption process shall terminate when the applicant 
receives such written notice. The Secretary's denial shall constitute 
final agency action for purposes of judicial review under chapter 7 of 
title 5 of the United States Code.
    (d) Positive finding. If the Secretary makes a positive finding on 
each of the threshold determinations, he shall notify the exemption 
applicant in writing that the application qualifies for consideration by 
the Endangered Species Committee.
    (e) Secretary of State opinion. The Secretary shall terminate the 
exemption process immediately if the Secretary of State, pursuant to his 
obligations under section 7(i) of the Act, certifies in writing to the 
Committee that granting an exemption and carrying out the proposed 
action would violate an international treaty obligation or other 
international obligation of the United States.