50 CFR § 402.01-402.48 - Interagency cooperation—Endangered Species Act of 1973, as amended

354 50 CFR Ch. IV (10–1–22 Edition) § 401.21 § 401.21 Patents and inventions. Determination of the patent rights in any inventions or discoveries resulting from work under project agreements entered into pursuant to the Act shall be consistent with the ‘‘Government Patent Policy’’ (President’s memo randum for Heads of Executive Depart ments and Agencies, August 23, 1971, and statement of Government Patent Policy as printed in 36 FR 16889). § 401.22 Civil rights. Each application for Federal assist ance, grant-in-aid award, or project agreement shall be supported by a statement of assurances executed by the Cooperator providing that the project will be carried out in accord ance with title VI, Nondiscrimination in federally Assisted Programs of the Civil Rights Act of 1964 and with the Secretary’s regulations promulgated thereunder. § 401.23 Audits. The State is required to conduct an audit at least every two years in ac cordance with the provisions of Attach ment P OMB Circular A–102. Failure to conduct audits as required may result in withholding of grant payments or such other sanctions as the Secretary may deem appropriate. [49 FR 30074, July 26, 1984] PART 402—INTERAGENCY CO OPERATION—ENDANGERED SPE CIES ACT OF 1973, AS AMEND ED 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 environ mental reviews. 402.07 Designation of lead agency. 402.08 Designation of non-Federal represent ative. 402.09 Irreversible or irretrievable commit ment 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 opin ion. 402.16 Reinitiation of consultation. 402.17 Other provisions. 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 Gov erning Actions by the U.S. Environ mental 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 informa tion. 402.44 Advance coordination for FIFRA ac tions. 402.45 Alternative consultation on FIFRA actions that are not likely to adversely affect listed species or critical habitat. 402.46 Optional formal consultation proce dure 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. Subpart A—General § 402.01 Scope. (a) This part interprets and imple ments sections 7(a)–(d) [16 U.S.C. 1536(a)–(d)] of the Endangered Species Act of 1973, as amended (‘‘Act’’). Sec tion 7(a) grants authority to and im poses requirements upon Federal agen cies regarding endangered or threat ened species of fish, wildlife, or plants (‘‘listed species’’) and habitat of such species that has been designated as critical (‘‘critical habitat’’). Section VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00364 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 355 FWS, DOI, and NOAA, Commerce § 402.02 7(a)(1) of the Act directs Federal agen cies, in consultation with and with the assistance of the Secretary of the Inte rior or of Commerce, as appropriate, to utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed spe cies. 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 appro priate Secretary. Section 7(a)(2) of the Act requires every Federal agency, in consultation with and with the assist ance of the Secretary, to insure that any action it authorizes, funds, or car ries out, in the United States or upon the high seas, is not likely to jeop ardize the continued existence of any listed species or results in the destruc tion or adverse modification of critical habitat. Section 7(a)(3) of the Act au thorizes a prospective permit or license applicant to request the issuing Fed eral agency to enter into early con sultation with the Service on a pro posed 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. Sec tion 7(a)(4) of the Act requires Federal agencies to confer with the Secretary on any action that is likely to jeop ardize the continued existence of pro posed species or result in the destruc tion or adverse modification of pro posed critical habitat. Section 7(b) of the Act requires the Secretary, after the conclusion of early or formal con sultation, to issue a written statement setting forth the Secretary’s opinion detailing how the agency action affects listed species or critical habitat Bio logical 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 con struction activity as defined in § 404.02. Section 7(d) of the Act prohibits Fed eral agencies and applicants from mak ing any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formula tion or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued exist ence of listed species or resulting in the destruction or adverse modifica tion of critical habitat. Section 7(e)– (o)(1) of the Act provide procedures for granting exemptions from the require ments of section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR part 451, and regulations governing the ex emption process are found at 50 CFR parts 450, 452, and 453. (b) The U.S. Fish and Wildlife Service (FWS) and the National Marine Fish eries Service (NMFS) share responsibil ities 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 crit ical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endan gered 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. § 402.02 Definitions. Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. Action means all activities or pro grams of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples in clude, but are not limited to: (a) actions intended to conserve list ed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, con tracts, leases, easements, rights-of way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air. Action area means all areas to be af fected directly or indirectly by the Federal action and not merely the im mediate area involved in the action. Applicant refers to any person, as de fined in section 3(13) of the Act, who re quires formal approval or authoriza tion from a Federal agency as a pre requisite to conducting the action. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00365 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 356 50 CFR Ch. IV (10–1–22 Edition) § 402.02 Biological assessment refers to the in formation prepared by or under the di rection of the Federal agency con cerning listed and proposed species and designated and proposed critical habi tat that may be present in the action area and the evaluation potential ef fects of the action on such species and habitat. Biological opinion is the document that states the opinion of the Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modifica tion of critical habitat. Conference is a process which involves informal discussions between a Federal agency and the Service under section 7(a)(4) of the Act regarding the impact of an action on proposed species or pro posed critical habitat and rec ommendations to minimize or avoid the adverse effects. Conservation recommendations are sug gestions of the Service regarding dis cretionary measures to minimize or avoid adverse effects of a proposed ac tion on listed species or critical habi tat or regarding the development of in formation. Critical habitat refers to an area des ignated as critical habitat listed in 50 CFR parts 17 or 226. Cumulative effects are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action sub ject to consultation. Designated non-Federal representative refers to a person designated by the Federal agency as its representative to conduct informal consultation and/or to prepare any biological assessment. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. Director refers to the Assistant Ad ministrator for Fisheries for the Na tional Marine Fisheries Service, or his or her authorized representative; or the Director of the U.S. Fish and Wildlife Service, or his or her authorized rep resentative. Early consultation is a process re quested by a Federal agency on behalf of a prospective applicant under sec tion 7(a)(3) of the Act. Effects of the action are all con sequences to listed species or critical habitat that are caused by the pro posed action, including the con sequences of other activities that are caused by the proposed action. A con sequence is caused by the proposed ac tion if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may in clude consequences occurring outside the immediate area involved in the ac tion. (See § 402.17). Environmental baseline refers to the condition of the listed species or its designated critical habitat in the ac tion area, without the consequences to the listed species or designated critical habitat caused by the proposed action. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone for mal or early section 7 consultation, and the impact of State or private ac tions which are contemporaneous with the consultation in process. The con sequences to listed species or des ignated critical habitat from ongoing agency activities or existing agency fa cilities that are not within the agen cy’s discretion to modify are part of the environmental baseline. Formal consultation is a process be tween the Service and the Federal agency that commences with the Fed eral agency’s written request for con sultation under section 7(a)(2) of the Act and concludes with the Service’s issuance of the biological opinion under section 7(b)(3) of the Act. Framework programmatic action means, for purposes of an incidental take statement, a Federal action that approves a framework for the develop ment of future action(s) that are au thorized, funded, or carried out at a later time, and any take of a listed spe cies would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00366 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 357 FWS, DOI, and NOAA, Commerce § 402.04 Incidental take refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activ ity conducted by the Federal agency or applicant. Informal consultation is an optional process that includes all discussions, correspondence, etc., between the Serv ice and the Federal agency or the des ignated non-Federal representative prior to formal consultation, if re quired. Jeopardize the continued existence of means to engage in an action that rea sonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and re covery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. Listed species means any species of fish, wildlife, or plant which has been determined to be endangered or threat ened under section 4 of the Act. Listed species are found in 50 CFR 17.11–17.12. Major construction activity is a con struction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human en vironment as referred to in the Na tional Environmental Policy Act [NEPA, 42 U.S.C. 4332(2)(C)]. Mixed programmatic action means, for purposes of an incidental take state ment, a Federal action that approves action(s) that will not be subject to further section 7 consultation, and also approves a framework for the develop ment of future action(s) that are au thorized, funded, or carried out at a later time and any take of a listed spe cies would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation. Preliminary biological opinion refers to an opinion issued as a result of early consultation. Programmatic consultation is a con sultation addressing an agency’s mul tiple actions on a program, region, or other basis. Programmatic consulta tions allow the Services to consult on the effects of programmatic actions such as: (1) Multiple similar, frequently oc curring, or routine actions expected to be implemented in particular geo graphic areas; and (2) A proposed program, plan, policy, or regulation providing a framework for future proposed actions. Proposed critical habitat means habi tat proposed in the FEDERAL REGISTER to be designated or revised as critical habitat under section 4 of the Act for any listed or proposed species. Proposed species means any species of fish, wildlife, or plant that is proposed in the FEDERAL REGISTER to be listed under section 4 of the Act. Reasonable and prudent alternatives refer to alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the ac tion, that can be implemented con sistent with the scope of the Federal agency’s legal authority and jurisdic tion, that is economically and techno logically feasible, and that the Direc tor believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the de struction or adverse modification of critical habitat. Reasonable and prudent measures refer to those actions the Director believes necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take. Recovery means improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act. Service means the U.S. Fish and Wild life Service or the National Marine Fisheries Service, as appropriate. [51 FR 19957, June 3, 1986, as amended at 73 FR 76286, Dec. 16, 2008; 74 FR 20422, May 4, 2009; 80 FR 26844, May 11, 2015; 81 FR 7225, Feb. 11, 2016; 84 FR 45016, Aug. 27, 2019] § 402.03 Applicability. Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involve ment or control. [74 FR 20423, May 4, 2009] § 402.04 Counterpart regulations. The consultation procedures set forth in this part may be superseded for a particular Federal agency by joint VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00367 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 358 50 CFR Ch. IV (10–1–22 Edition) § 402.05 counterpart regulations among that agency, the Fish and Wildlife Service, and the National Marine Fisheries Service. Such counterpart regulations shall be published in the FEDERAL REG ISTER in proposed form and shall be subject to public comment for at least 60 days before final rules are published. § 402.05 Emergencies. (a) Where emergency circumstances mandate the need to consult in an ex pedited manner, consultation may be conducted informally through alter native procedures that the Director de termines to be consistent with the re quirements of sections 7(a)–(d) of the Act. This provision applies to situa tions involving acts of God, disasters, casualties, national defense or security emergencies, etc. (b) Formal consultation shall be ini tiated as soon as practicable after the emergency is under control. The Fed eral agency shall submit information on the nature of the emergency ac tion(s), the justification for the expe dited consultation, and the impacts to endangered or threatened species and their habitats. The Service will evalu ate such information and issue a bio logical opinion including the informa tion and recommendations given dur ing the emergency consultation. § 402.06 Coordination with other envi ronmental reviews. (a) Consultation, conference, and bio logical assessment procedures under section 7 may be consolidated with interagency cooperation procedures re quired by other statutes, such as the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq., imple mented at 40 CFR parts 1500–1508) or the Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 661 et seq.). Satis fying the requirements of these other statutes, however, does not in itself re lieve a Federal agency of its obliga tions to comply with the procedures set forth in this part or the substantive requirements of section 7. The Service will attempt to provide a coordinated review and analysis of all environ mental requirements. (b) Where the consultation or con ference has been consolidated with the interagency cooperation procedures re quired by other statutes such as NEPA or FWCA, the results should be in cluded in the documents required by those statutes. § 402.07 Designation of lead agency. When a particular action involves more than one Federal agency, the con sultation and conference responsibil ities may be fulfilled through a lead agency. Factors relevant in deter mining an appropriate lead agency in clude the time sequence in which the agencies would become involved, the magnitude of their respective involve ment, and their relative expertise with respect to the environmental effects of the action. The Director shall be noti fied of the designation in writing by the lead agency. § 402.08 Designation of non-Federal representative. A Federal agency may designate a non-Federal representative to conduct informal consultation or prepare a bio logical assessment by giving written notice to the Director of such designa tion. If a permit or license applicant is involved and is not the designated non Federal representative, then the appli cant and Federal agency must agree on the choice of the designated non-Fed eral representative. If a biological as sessment is prepared by the designated non-Federal representative, the Fed eral agency shall furnish guidance and supervision and shall independently re view and evaluate the scope and con tents of the biological assessment. The ultimate responsibility for compliance with section 7 remains with the Fed eral agency. § 402.09 Irreversible or irretrievable commitment of resources. After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irre versible or irretrievable commitment of resources with respect to the agency action which has the effect of fore closing the formulation or implemen tation of any reasonable and prudent alternatives which would avoid vio lating section 7(a)(2). This prohibition is in force during the consultation VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00368 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 359 FWS, DOI, and NOAA, Commerce § 402.11 process and continues until the re quirements of section 7(a)(2) are satis fied. This provision does not apply to the conference requirement for pro posed species or proposed critical habi tat under section 7(a)(4) of the Act. Subpart B—Consultation Procedures § 402.10 Conference on proposed spe cies or proposed critical habitat. (a) Each Federal agency shall confer with the Service on any action which is likely to jeopardize the continued ex istence of any proposed species or re sult in the destruction or adverse modification of proposed critical habi tat. The conference is designed to as sist the Federal agency and any appli cant in identifying and resolving po tential conflicts at an early stage in the planning process. (b) The Federal agency shall initiate the conference with the Director. The Service may request a conference if, after a review of available information, it determines that a conference is re quired for a particular action. (c) A conference between a Federal agency and the Service shall consist of informal discussions concerning an ac tion that is likely to jeopardize the continued existence of the proposed species or result in the destruction or adverse modification of the proposed critical habitat at issue. Applicants may be involved in these informal dis cussions to the greatest extent prac ticable. During the conference, the Service will make advisory rec ommendations, if any, on ways to min imize or avoid adverse effects. If the proposed species is subsequently listed or the proposed critical habitat is des ignated prior to completion of the ac tion, the Federal agency must review the action to determine whether for mal consultation is required. (d) If requested by the Federal agen cy and deemed appropriate by the Serv ice, the conference may be conducted in accordance with the procedures for formal consultation in § 402.14. An opin ion issued at the conclusion of the con ference may be adopted as the biologi cal opinion when the species is listed or critical habitat is designated, but only if no significant new information is de veloped (including that developed dur ing the rulemaking process on the pro posed listing or critical habitat des ignation) and no significant changes to the Federal action are made that would alter the content of the opinion. An in cidental take statement provided with a conference opinion does not become effective unless the Service adopts the opinion once the listing is final. (e) The conclusions reached during a conference and any recommendations shall be documented by the Service and provided to the Federal agency and to any applicant. The style and mag nitude of this document will vary with the complexity of the conference. If formal consultation also is required for a particular action, then the Service will provide the results of the con ference with the biological opinion. § 402.11 Early consultation. (a) Purpose. Early consultation is de signed to reduce the likelihood of con flicts between listed species or critical habitat and proposed actions and oc curs prior to the filing of an applica tion for a Federal permit or license. Al though early consultation is conducted between the Service and the Federal agency, the prospective applicant should be involved throughout the con sultation 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 ap plicant must certify in writing to the Federal agency that (1) it has a defini tive proposal outlining the action and its effects and (2) it intends to imple ment its proposal, if authorized. (c) Initiation of early consultation. If the Federal agency receives the pro spective applicant’s certification in paragraph (b) of this section, then the Federal agency shall initiate early con sultation with the Service. This re quest shall be in writing and contain the information outlined in § 402.14(c) and, if the action is a major construc tion activity, the biological assessment as outlined in § 402.12. (d) Procedures and responsibilities. The procedures and responsibilities for VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00369 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 360 50 CFR Ch. IV (10–1–22 Edition) § 402.12 early consultation are the same as out lined in § 402.14(c)–(j) for formal con sultation, except that all references to the ‘‘applicant’’ shall be treated as the ‘‘prospective applicant’’ and all ref erences 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 prelimi nary biological opinion are the same as for a biological opinion issued after formal consultation except that the in cidental take statement provided with a preliminary biological opinion does not constitute authority to take listed species. (f) Confirmation of preliminary biologi cal 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 sig nificant changes in the action as planned or in the information used dur ing the early consultation. A written request for confirmation of the pre liminary biological opinion should be submitted after the prospective appli cant 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 ei ther: (1) Confirm that the preliminary bio logical opinion stands as a final bio logical opinion; or (2) If the findings noted above cannot be made, request that the Federal agency initiate formal consultation. § 402.12 Biological assessments. (a) Purpose. A biological assessment shall evaluate the potential effects of the action on listed and proposed spe cies and designated and proposed crit ical habitat and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether for mal consultation or a conference is necessary. (b) Preparation requirement. (1) The procedures of this section are required for Federal actions that are ‘‘major construction activities’’; provided that a contract for construction was not en tered into or actual construction was not begun on or before November 10, 1978. Any person, including those who may wish to apply for an exemption from section 7(a)(2) of the Act, may prepare a biological assessment under the supervision of the Federal agency and in cooperation with the Service consistent with the procedures and re quirements of this section. An exemp tion from the requirements of section 7(a)(2) is not permanent unless a bio logical assessment has been prepared. (2) The biological assessment shall be completed before any contract for con struction is entered into and before construction is begun. (c) Request for information. The Fed eral agency or the designated non-Fed eral representative shall convey to the Director either (1) a written request for a list of any listed or proposed species or designated or proposed critical habi tat that may be present in the action area; or (2) a written notification of the species and critical habitat that are being included in the biological assess ment. (d) Director’s response. Within 30 days of receipt of the notification of, or the request for, a species list, the Director shall either concur with or revise the list or, in those cases where no list has been provided, advise the Federal agen cy or the designated non-Federal rep resentative in writing whether, based on the best scientific and commercial data available, any listed or proposed species or designated or proposed crit ical habitat may be present in the ac tion area. In addition to listed and pro posed species, the Director will provide a list of candidate species that may be present in the action area. Candidate species refers to any species being con sidered by the Service for listing as en dangered or threatened species but not yet the subject of a proposed rule. Al though candidate species have no legal status and are accorded no protection under the Act, their inclusion will alert the Federal agency of potential proposals or listings. (1) If the Director advises that no listed species or critical habitat may be present, the Federal agency need not prepare a biological assessment VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00370 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 361 FWS, DOI, and NOAA, Commerce § 402.12 and further consultation is not re quired. If only proposed species or pro posed critical habitat may be present in the action area, then the Federal agency must confer with the Service if required under § 402.10, but preparation of a biological assessment is not re quired unless the proposed listing and/ or designation becomes final. (2) If a listed species or critical habi tat may be present in the action area, the Director will provide a species list or concur with the species list pro vided. The Director also will provide available information (or references thereto) regarding these species and critical habitat, and may recommend discretionary studies or surveys that may provide a better information base for the preparation of an assessment. Any recommendation for studies or surveys is not to be construed as the Service’s opinion that the Federal agency has failed to satisfy the infor mation standard of section 7(a)(2) of the Act. (e) Verification of current accuracy of species list. If the Federal agency or the designated non-Federal representative does not begin preparation of the bio logical assessment within 90 days of re ceipt of (or concurrence with) the spe cies list, the Federal agency or the des ignated non-Federal representative must verify (formally or informally) with the Service the current accuracy of the species list at the time the prep aration of the assessment is begun. (f) Contents. The contents of a bio logical assessment are at the discretion of the Federal agency and will depend on the nature of the Federal action. The following may be considered for in clusion: (1) The results of an on-site inspec tion of the area affected by the action to determine if listed or proposed spe cies are present or occur seasonally. (2) The views of recognized experts on the species at issue. (3) A review of the literature and other information. (4) An analysis of the effects of the action on the species and habitat, in cluding consideration of cumulative ef fects, and the results of any related studies. (5) An analysis of alternate actions considered by the Federal agency for the proposed action. (g) Incorporation by reference. If a pro posed action requiring the preparation of a biological assessment is identical, or very similar, to a previous action for which a biological assessment was pre pared, the Federal agency may fulfill the biological assessment requirement for the proposed action by incor porating by reference the earlier bio logical assessment, plus any supporting data from other documents that are pertinent to the consultation, into a written certification that: (1) The proposed action involves similar impacts to the same species in the same geographic area; (2) No new species have been listed or proposed or no new critical habitat des ignated or proposed for the action area; and (3) The biological assessment has been supplemented with any relevant changes in information. (h) Permit requirements. If conducting a biological assessment will involve the taking of a listed species, a permit under section 10 of the Act (16 U.S.C. 1539) and part 17 of this title (with re spect to species under the jurisdiction of the FWS) or parts 220, 222, and 227 of this title (with respect to species under the jurisdiction of the NMFS) is re quired. (i) Completion time. The Federal agen cy or the designated non- Federal rep resentative shall complete the biologi cal assessment within 180 days after its initiation (receipt of or concurrence with the species list) unless a different period of time is agreed to by the Di rector and the Federal agency. If a per mit or license applicant is involved, the 180-day period may not be extended unless the agency provides the appli cant, before the close of the 180-day pe riod, with a written statement setting forth the estimated length of the pro posed extension and the reasons why such an extension is necessary. (j) Submission of biological assessment. The Federal agency shall submit the completed biological assessment to the Director for review. The Director will respond in writing within 30 days as to whether or not he concurs with the findings of the biological assessment. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00371 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 362 50 CFR Ch. IV (10–1–22 Edition) § 402.13 At the option of the Federal agency, formal consultation may be initiated under § 402.14(c) concurrently with the submission of the assessment. (k) Use of the biological assessment. (1) The Federal agency shall use the bio logical assessment in determining whether formal consultation or a con ference is required under § 402.14 or § 402.10, respectively. If the biological assessment indicates that there are no listed species or critical habitat present that are likely to be adversely affected by the action and the Director concurs as specified in paragraph (j) of this section, then formal consultation is not required. If the biological assess ment indicates that the action is not likely to jeopardize the continued ex istence of proposed species or result in the destruction or adverse modifica tion of proposed critical habitat, and the Director concurs, then a conference is not required. (2) The Director may use the results of the biological assessment in (i) de termining whether to request the Fed eral agency to initiate formal con sultation or a conference, (ii) formu lating a biological opinion, or (iii) for mulating a preliminary biological opinion. § 402.13 Informal consultation. (a) Informal consultation is an op tional process that includes all discus sions, correspondence, etc., between the Service and the Federal agency or the designated non-Federal representa tive, designed to assist the Federal agency in determining whether formal consultation or a conference is re quired. (b) During informal consultation, the Service may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat. (c) If during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or crit ical habitat, the consultation process is terminated, and no further action is necessary. (1) A written request for concurrence with a Federal agency’s not likely to adversely affect determination shall include information similar to the types of information described for for mal consultation at § 402.14(c)(1) suffi cient for the Service to determine if it concurs. (2) Upon receipt of a written request consistent with paragraph (c)(1) of this section, the Service shall provide writ ten concurrence or non-concurrence with the Federal agency’s determina tion within 60 days. The 60-day time frame may be extended upon mutual consent of the Service, the Federal agency, and the applicant (if involved), but shall not exceed 120 days total from the date of receipt of the Federal agen cy’s written request consistent with paragraph (c)(1) of this section. [74 FR 20423, May 4, 2009, as amended at 84 FR 45016, Aug. 27, 2019] § 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 af fect 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 identifies any action of that agency that may affect listed species or crit ical habitat and for which there has been no consultation. When such a re quest is made, the Director shall for ward to the Federal agency a written explanation of the basis for the re quest. (b) Exceptions. (1) A Federal agency need not initiate formal consultation if, as a result of the preparation of a bi ological assessment under § 402.12 or as a result of informal consultation with the Service under § 402.13, the Federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to ad versely affect any listed species or crit ical habitat. (2) A Federal agency need not ini tiate formal consultation if a prelimi nary biological opinion, issued after early consultation under § 402.11, is confirmed as the final biological opin ion. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00372 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 363 FWS, DOI, and NOAA, Commerce § 402.14 (c) Initiation of formal consultation. (1) A written request to initiate formal consultation shall be submitted to the Director and shall include: (i) A description of the proposed ac tion, including any measures intended to avoid, minimize, or offset effects of the action. Consistent with the nature and scope of the proposed action, the description shall provide sufficient de tail to assess the effects of the action on listed species and critical habitat, including: (A) The purpose of the action; (B) The duration and timing of the action; (C) The location of the action; (D) The specific components of the action and how they will be carried out; (E) Maps, drawings, blueprints, or similar schematics of the action; and (F) Any other available information related to the nature and scope of the proposed action relevant to its effects on listed species or designated critical habitat. (ii) A map or description of all areas to be affected directly or indirectly by the Federal action, and not merely the immediate area involved in the action (i.e., the action area as defined at § 402.02). (iii) Information obtained by or in the possession of the Federal agency and any applicant on the listed species and designated critical habitat in the action area (as required by paragraph (c)(1)(ii) of this section), including available information such as the pres ence, abundance, density, or periodic occurrence of listed species and the condition and location of the species’ habitat, including any critical habitat. (iv) A description of the effects of the action and an analysis of any cumu lative effects. (v) A summary of any relevant infor mation provided by the applicant, if available. (vi) Any other relevant available in formation on the effects of the pro posed action on listed species or des ignated critical habitat, including any relevant reports such as environmental impact statements and environmental assessments. (2) A Federal agency may submit ex isting documents prepared for the pro posed action such as NEPA analyses or other reports in substitution for the initiation package outlined in this paragraph (c). However, any such sub stitution shall be accompanied by a written summary specifying the loca tion of the information that satisfies the elements above in the submitted document(s). (3) 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 § 402.12. (4) Any request for formal consulta tion may encompass, subject to the ap proval of the Director, a number of similar individual actions within a given geographical area, a pro grammatic consultation, or a segment of a comprehensive plan. The provision in this paragraph (c)(4) does not relieve the Federal agency of the requirements for considering the effects of the action or actions as a whole. (d) Responsibility to provide best sci entific and commercial data available. The Federal agency requesting formal consultation shall provide the Service with the best scientific and commer cial data available or which can be ob tained 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 sur veys conducted by the Federal agency or the designated non-Federal rep resentative. The Federal agency shall provide any applicant with the oppor tunity to submit information for con sideration during the consultation. (e) Duration and extension of formal consultation. Formal consultation con cludes within 90 days after its initi ation unless extended as provided below. If an applicant is not involved, the Service and the Federal agency may mutually agree to extend the con sultation for a specific time period. If an applicant is involved, the Service and the Federal agency may mutually agree to extend the consultation pro vided 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, VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00373 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 364 50 CFR Ch. IV (10–1–22 Edition) § 402.14 (2) The information that is required to complete the consultation, and (3) The estimated date on which the consultation will be completed. A con sultation involving an applicant can not 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 opin ion, the Director may request an exten sion of formal consultation and request that the Federal agency obtain addi tional data to determine how or to what extent the action may affect list ed species or critical habitat. If formal consultation is extended by mutual agreement according to § 402.14(e), the Federal agency shall obtain, to the ex tent practicable, that data which can be developed within the scope of the extension. The responsibility for con ducting and funding any studies be longs to the Federal agency and the ap plicant, 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 for mal consultation is agreed to, the Di rector will issue a biological opinion using the best scientific and commer cial data available. (g) Service responsibilities. Service re sponsibilities during formal consulta tion are as follows: (1) Review all relevant information provided by the Federal agency or oth erwise available. Such review may in clude an on-site inspection of the ac tion area with representatives of the Federal agency and the applicant. (2) Evaluate the current status and environmental baseline 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) Add the effects of the action and cumulative effects to the environ mental baseline and in light of the sta tus of the species and critical habitat, formulate the Service’s opinion as to whether the action is likely to jeop ardize the continued existence of listed species or result in the destruction or adverse modification of critical habi tat. (5) Discuss with the Federal agency and any applicant the Service’s review and evaluation conducted under para graphs (g)(1) through (3) of this section, the basis for any finding in the biologi cal opinion, and the availability of rea sonable 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 re quested, the Service shall make avail able to the Federal agency the draft bi ological opinion for the purpose of ana lyzing the reasonable and prudent al ternatives. The 45-day period in which the biological opinion must be deliv ered will not be suspended unless the Federal agency secures the written consent of the applicant to an exten sion to a specific date. The applicant may request a copy of the draft opinion from the Federal agency. All com ments 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 biologi cal opinion within 10 days of the dead line for issuing the opinion, the Service is entitled to an automatic 10-day ex tension on the deadline. (6) Formulate discretionary con servation 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 con cerning incidental take, if such take is reasonably certain to occur. (8) In formulating its biological opin ion, any reasonable and prudent alter natives, and any reasonable and pru dent measures, the Service will use the best scientific and commercial data VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00374 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 365 FWS, DOI, and NOAA, Commerce § 402.14 available and will give appropriate con sideration to any beneficial actions as proposed or taken by the Federal agen cy or applicant, including any actions taken prior to the initiation of con sultation. Measures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not re quire any additional demonstration of binding plans. (h) Biological opinions. (1) The biologi cal opinion shall include: (i) A summary of the information on which the opinion is based; (ii) A detailed discussion of the envi ronmental baseline of the listed species and critical habitat; (iii) A detailed discussion of the ef fects of the action on listed species or critical habitat; and (iv) The Service’s opinion on whether the action is: (A) Likely to jeopardize the contin ued existence of a listed species or re sult in the destruction or adverse modification of critical habitat (a ‘‘jeopardy’’ biological opinion); or (B) Not likely to jeopardize the con tinued existence of a listed species or result in the destruction or adverse modification of critical habitat (a ‘‘no jeopardy’’ biological opinion). (2) A ‘‘jeopardy’’ biological opinion shall include reasonable and prudent alternatives, if any. If the Service is unable to develop such alternatives, the Service will indicate that to the best of its knowledge there are no rea sonable and prudent alternatives. (3) The Service may adopt all or part of: (i) A Federal agency’s initiation package; or (ii) The Service’s analysis required to issue a permit under section 10(a) of the Act in its biological opinion. (4) A Federal agency and the Service may agree to follow an optional col laborative process that would further the ability of the Service to adopt the information and analysis provided by the Federal agency during consultation in the development of the Service’s bi ological opinion to improve efficiency in the consultation process and reduce duplicative efforts. The Federal agency and the Service shall consider the na ture, size, and scope of the action or its anticipated effects on listed species or critical habitat, and other relevant fac tors to determine whether an action or a class of actions is appropriate for this process. The Federal agency and the Service may develop coordination pro cedures that would facilitate adoption of the initiation package with any nec essary supplementary analyses and in cidental take statement to be added by the Service, if appropriate, as the Serv ice’s biological opinion in fulfillment of section 7(b) of the Act. (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 mam mals, where the taking is authorized pursuant to section 101(a)(5) of the Ma rine Mammal Protection Act of 1972, the Service will provide with the bio logical opinion a statement concerning incidental take that: (i) Specifies the impact, i.e., the amount or extent, of such incidental taking on the species (A surrogate (e.g., similarly affected species or habitat or ecological conditions) may be used to express the amount or extent of antici pated take provided that the biological opinion or incidental take statement: Describes the causal link between the surrogate and take of the listed spe cies, explains why it is not practical to express the amount or extent of antici pated take or to monitor take-related impacts in terms of individuals of the listed species, and sets a clear standard for determining when the level of an ticipated take has been exceeded.); (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 nec essary 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 condi tions (including, but not limited to, re porting requirements) that must be complied with by the Federal agency or VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00375 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 366 50 CFR Ch. IV (10–1–22 Edition) § 402.14 any applicant to implement the meas ures 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 indi viduals 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 in volve 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 spe cies to the Service as specified in the incidental take statement. The report ing requirements will be established in accordance with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 216.105 and 222.301(h) for NMFS. (4) If during the course of the action the amount or extent of incidental tak ing, as specified under paragraph (i)(1)(i) of this Section, is exceeded, the Federal agency must reinitiate con sultation 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 condi tions of that statement is not a prohib ited taking under the Act, and no other authorization or permit under the Act is required. (6) For a framework programmatic action, an incidental take statement is not required at the programmatic level; any incidental take resulting from any action subsequently author ized, funded, or carried out under the program will be addressed in subse quent section 7 consultation, as appro priate. For a mixed programmatic ac tion, an incidental take statement is required at the programmatic level only for those program actions that are reasonably certain to cause take and are not subject to further section 7 consultation. (j) Conservation recommendations. The Service may provide with the biologi cal opinion a statement containing dis cretionary conservation recommenda tions. 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 opin ion on the incremental step being con sidered, including its views on the en tire action. Upon the issuance of such a biological opinion, the Federal agency may proceed with or authorize the in cremental 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 suffi cient data upon which to base the final biological opinion on the entire action; (4) The incremental step does not vio late section 7(d) of the Act concerning irreversible or irretrievable commit ment of resources; and (5) There is a reasonable likelihood that the entire action will not violate section 7(a)(2) of the Act. (l) Expedited consultations. Expedited consultation is an optional formal con sultation process that a Federal agency and the Service may enter into upon mutual agreement. To determine whether an action or a class of actions is appropriate for this type of consulta tion, the Federal agency and the Serv ice shall consider the nature, size, and scope of the action or its anticipated effects on listed species or critical habitat and other relevant factors. Conservation actions whose primary purpose is to have beneficial effects on listed species will likely be considered appropriate for expedited consultation. (1) Expedited timelines. Upon agree ment to use this expedited consulta tion process, the Federal agency and the Service shall establish the expe dited timelines for the completion of this consultation process. (2) Federal agency responsibilities. To request initiation of expedited con sultation, the Federal agency shall pro vide all the information required to initiate consultation under paragraph (c) of this section. To maximize effi ciency and ensure that it develops the VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00376 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 367 FWS, DOI, and NOAA, Commerce § 402.17 appropriate level of information, the Federal agency is encouraged to de velop its initiation package in coordi nation with the Service. (3) Service responsibilities. In addition to the Service’s responsibilities under the provisions of this section, the Serv ice will: (i) Provide relevant species informa tion to the Federal agency and guid ance to assist the Federal agency in completing its effects analysis in the initiation package; and (ii) Conclude the consultation and issue a biological opinion within the agreed-upon timeframes. (m) Termination of consultation. (1) Formal consultation is terminated with the issuance of the biological opinion. (2) If during any stage of consulta tion a Federal agency determines that its proposed action is not likely to occur, the consultation may be termi nated by written notice to the Service. (3) If during any stage of consulta tion a Federal agency determines, with the concurrence of the Director, that its proposed action is not likely to ad versely affect any listed species or crit ical habitat, the consultation is termi nated. [51 FR 19957, June 3, 1986, as amended at 54 FR 40350, Sept. 29, 1989; 73 FR 76287, Dec. 16, 2008; 74 FR 20423, May 4, 2009; 80 FR 26844, May 11, 2015; 84 FR 45016, Aug. 27, 2019] § 402.15 Responsibilities of Federal agency following issuance of a bio logical opinion. (a) Following the issuance of a bio logical opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service’s biological opinion. (b) If a jeopardy biological opinion is issued, the Federal agency shall notify the Service of its final decision on the action. (c) If the Federal agency determines that it cannot comply with the require ments of section 7(a)(2) after consulta tion with the Service, it may apply for an exemption. Procedures for exemp tion applications by Federal agencies and others are found in 50 CFR part 451. § 402.16 Reinitiation of consultation. (a) Reinitiation of consultation is re quired and shall be requested by the Federal agency or by the Service, where discretionary Federal involve ment or control over the action has been retained or is authorized by law and: (1) If the amount or extent of taking specified in the incidental take state ment is exceeded; (2) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously consid ered; (3) If the identified action is subse quently modified in a manner that causes an effect to the listed species or critical habitat that was not consid ered in the biological opinion or writ ten concurrence; or (4) If a new species is listed or crit ical habitat designated that may be af fected by the identified action. (b) An agency shall not be required to reinitiate consultation after the ap proval of a land management plan pre pared pursuant to 43 U.S.C. 1712 or 16 U.S.C. 1604 upon listing of a new spe cies or designation of new critical habi tat if the land management plan has been adopted by the agency as of the date of listing or designation, provided that any authorized actions that may affect the newly listed species or des ignated critical habitat will be ad dressed through a separate action-spe cific consultation. This exception to reinitiation of consultation shall not apply to those land management plans prepared pursuant to 16 U.S.C. 1604 if: (1) Fifteen years have passed since the date the agency adopted the land management plan prepared pursuant to 16 U.S.C. 1604; and (2) Five years have passed since the enactment of Public Law 115–141 [March 23, 2018] or the date of the list ing of a species or the designation of critical habitat, whichever is later. [51 FR 19957, June 3, 1986, as amended at 84 FR 45017, Aug. 27, 2019] § 402.17 Other provisions. (a) Activities that are reasonably cer tain to occur. A conclusion of reason ably certain to occur must be based on VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00377 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 368 50 CFR Ch. IV (10–1–22 Edition) § 402.30 clear and substantial information, using the best scientific and commer cial data available. Factors to consider when evaluating whether activities caused by the proposed action (but not part of the proposed action) or activi ties reviewed under cumulative effects are reasonably certain to occur in clude, but are not limited to: (1) Past experiences with activities that have resulted from actions that are similar in scope, nature, and mag nitude to the proposed action; (2) Existing plans for the activity; and (3) Any remaining economic, admin istrative, and legal requirements nec essary for the activity to go forward. (b) Consequences caused by the pro posed action. To be considered an effect of a proposed action, a consequence must be caused by the proposed action (i.e., the consequence would not occur but for the proposed action and is rea sonably certain to occur). A conclusion of reasonably certain to occur must be based on clear and substantial informa tion, using the best scientific and com mercial data available. Considerations for determining that a consequence to the species or critical habitat is not caused by the proposed action include, but are not limited to: (1) The consequence is so remote in time from the action under consulta tion that it is not reasonably certain to occur; or (2) The consequence is so geographi cally remote from the immediate area involved in the action that it is not reasonably certain to occur; or (3) The consequence is only reached through a lengthy causal chain that in volves so many steps as to make the consequence not reasonably certain to occur. (c) Required consideration. The provi sions in paragraphs (a) and (b) of this section must be considered by the ac tion agency and the Services. [84 FR 45018, Aug. 27, 2019] Subpart C—Counterpart Regula tions for Implementing the National Fire Plan SOURCE: 68 FR 68264, Dec. 8, 2003, unless otherwise noted. § 402.30 Definitions. The definitions in § 402.02 are applica ble to this subpart. In addition, the fol lowing definitions are applicable only to this subpart. Action Agency refers to the Depart ment of Agriculture Forest Service (FS) or the Department of the Interior Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), or National Park Service (NPS). Alternative Consultation Agreement (ACA) is the agreement described in § 402.33 of this subpart. Fire Plan Project is an action deter mined by the Action Agency to be within the scope of the NFP as defined in this section. National Fire Plan (NFP) is the Sep tember 8, 2000, report to the President from the Departments of the Interior and Agriculture entitled ‘‘Managing the Impact of Wildfire on Communities and the Environment’’ outlining a new approach to managing fires, together with the accompanying budget re quests, strategies, plans, and direction, or any amendments thereto. Service Director refers to the FWS Di rector or the Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration. § 402.31 Purpose. The purpose of these counterpart reg ulations is to enhance the efficiency and effectiveness of the consultation process under section 7 of the ESA for Fire Plan Projects by providing an op tional alternative to the procedures found in §§ 402.13 and 402.14(b) of this part. These regulations permit an Ac tion Agency to enter into an Alter native Consultation Agreement (ACA) with the Service, as described in § 402.33, which will allow the Action Agency to determine that a Fire Plan Project is ‘‘not likely to adversely af fect’’ (NLAA) a listed species or des ignated critical habitat without formal or informal consultation with the Serv ice or written concurrence from the Service. An NLAA determination for a Fire Plan Project made under an ACA, as described in § 402.33, completes the Action Agency’s statutory obligation to consult with the Service for that Project. In situations where the Action VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00378 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 369 FWS, DOI, and NOAA, Commerce § 402.33 Agency does not make an NLAA deter mination under the ACA, the Action Agency would still be required to con duct formal consultation with the Service when required by § 402.14. This process will be as protective to listed species and designated critical habitat as the process established in subpart B of this part. The standards and require ments for formal consultation under subpart B for Fire Plan Projects that do not receive an NLAA determination are unchanged. § 402.32 Scope. (a) Section 402.33 establishes a proc ess by which an Action Agency may de termine that a proposed Fire Plan Project is not likely to adversely affect any listed species or designated critical habitat without conducting formal or informal consultation or obtaining written concurrence from the Service. (b) Section 402.34 establishes the Service’s oversight responsibility and the standard for review under this sub part. (c) Nothing in this subpart C pre cludes an Action Agency at its discre tion from initiating early, informal, or formal consultation as described in §§ 402.11, 402.13, and 402.14, respectively. (d) The authority granted in this sub part is applicable to an Action Agency only where the Action Agency has en tered into an ACA with the Service. An ACA entered into with one Service is valid with regard to listed species and designated critical habitat under the jurisdiction of that Service whether or not the Action Agency has entered into an ACA with the other Service. § 402.33 Procedures. (a) The Action Agency may make an NLAA determination for a Fire Plan Project without informal consultation or written concurrence from the Direc tor if the Action Agency has entered into and implemented an ACA. The Ac tion Agency need not initiate formal consultation on a Fire Plan Project if the Action Agency has made an NLAA determination for the Project under this subpart. The Action Agency and the Service will use the following pro cedures in establishing an ACA. (1) Initiation: The Action Agency sub mits a written notification to the Serv ice Director of its intent to enter into an ACA. (2) Development and Adoption of the Alternative Consultation Agreement: The Action Agency enters into an ACA with the Service Director. The ACA will, at a minimum, include the following com ponents: (i) A list or description of the staff positions within the Action Agency that will have authority to make NLAA determinations under this sub part C. (ii) Procedures for developing and maintaining the skills necessary with in the Action Agency to make NLAA determinations, including a jointly de veloped training program based on the needs of the Action Agency. (iii) A description of the standards the Action Agency will apply in assess ing the effects of the action, including direct and indirect effects of the action and effects of any actions that are interrelated or interdependent with the proposed action. (iv) Provisions for incorporating new information and newly listed species or designated critical habitat into the Ac tion Agency’s effects analysis of pro posed actions. (v) A mutually agreed upon program for monitoring and periodic program evaluation to occur at the end of the first year following signature of the ACA and periodically thereafter. (vi) Provisions for the Action Agency to maintain a list of Fire Plan Projects for which the Action Agency has made NLAA determinations. The Action Agency will also maintain the nec essary records to allow the Service to complete the periodic program evalua tions. (3) Training: Upon completion of the ACA, the Action Agency and the Serv ice will implement the training pro gram outlined in the ACA to the mu tual satisfaction of the Action Agency and the Service. (b) The Action Agency may, at its discretion, allow any subunit of the Ac tion Agency to implement this subpart as soon as the subunit has fulfilled the training requirements of the ACA, upon written notification to the Serv ice. The Action Agency shall at all VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00379 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 370 50 CFR Ch. IV (10–1–22 Edition) § 402.34 times have responsibility for the ade quacy of all NLAA determinations it makes under this subpart. (c) The ACA and any related over sight or monitoring reports shall be made available to the public through a notice of availability in the FEDERAL REGISTER. § 402.34 Oversight. (a) Through the periodic program evaluation set forth in the ACA, the Service will determine whether the im plementation of this subpart by the Ac tion Agency is consistent with the best available scientific and commercial in formation, the ESA, and section 7 regu lations. (b) The Service Director may use the results of the periodic program evalua tion described in the ACA to rec ommend changes to the Action Agen cy’s implementation of the ACA. If and as appropriate, the Service Director may suspend any subunit participating in the ACA or exclude any subunit from the ACA. (c) The Service Director retains dis cretion to terminate the ACA if the Ac tion Agency fails to comply with the requirements of this subpart, section 7 of the ESA, or the terms of the ACA. Termination, suspension, or modifica tion of an ACA does not affect the va lidity of any NLAA determinations made previously under the authority of this subpart. Subpart D—Counterpart Regula tions Governing Actions by the U.S. Environmental Protec tion Agency Under the Fed eral Insecticide, Fungicide and Rodenticide Act SOURCE: 69 FR 47759, Aug. 5, 2004, unless otherwise noted. § 402.40 Definitions. The definitions in § 402.02 are applica ble to this subpart. In addition, the fol lowing definitions are applicable only to this subpart. (a) Alternative consultation agreement is the agreement described in § 402.45. (b) Effects determination is a written determination by the U.S. Environ mental Protection Agency (EPA) ad dressing the effects of a FIFRA action on listed species or critical habitat. The contents of an effects determina tion will depend on the nature of the action. An effects determination sub mitted under § 402.46 or § 402.47 shall contain the information described in § 402.14(c) and a summary of the infor mation on which the determination is based, detailing how the FIFRA action affects the listed species or critical habitat. EPA may consider the fol lowing additional sections for inclusion in an effects determination: (1) A conclusion whether or not the FIFRA action is likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat and a description of any reasonable and prudent alternatives that may be avail able; (2) A description of the impact of any anticipated incidental taking of such listed species resulting from the FIFRA action, reasonable and prudent measures considered necessary or ap propriate to minimize such impact, and terms and conditions necessary to im plement such measures; and (3) A summary of any information or recommendations from an applicant. An effects determination shall be based on the best scientific and commercial data available. (c) FIFRA action is an action by EPA to approve, permit or authorize the sale, distribution or use of a pesticide under sections 136–136y of the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq. (FIFRA). In any consultation under this subpart, EPA shall determine the nature and scope of a FIFRA action. (d) Listed species is a species listed as endangered or threatened under section 4 of the Act. (e) Partial biological opinion is the document provided under § 402.47(a), pending the conclusion of consultation under § 402.47(b), stating the opinion of the Service as to whether or not a FIFRA action is likely to jeopardize the continued existence of one or more listed species or result in the destruc tion or adverse modification of one or more critical habitats, and describing VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00380 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 371 FWS, DOI, and NOAA, Commerce § 402.42 the impact of any anticipated inci dental taking of such listed species re sulting from the FIFRA action, reason able and prudent measures considered necessary or appropriate to minimize such impact, and terms and conditions necessary to implement such measures. (f) Service Director refers to the Direc tor of the U.S. Fish and Wildlife Serv ice or the Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration. (g) Service Representative is the person or persons designated to participate in advance coordination as provided in this subpart. [69 FR 47759, Aug. 5, 2004, as amended at 84 FR 45018, Aug. 27, 2019] § 402.41 Purpose. The purpose of these counterpart reg ulations is to enhance the efficiency and effectiveness of the existing con sultation process under section 7 of the Endangered Species Act (Act), 16 U.S.C. 1531 et seq., by providing Fish and Wild life Service and the National Marine Fisheries Service (referred to jointly as ‘‘Services’’ and individually as ‘‘Serv ice’’) and EPA with additional means to satisfy the requirements of section 7(a)(2) of the Act for certain regulatory actions under FIFRA. These additional means will permit the Services and EPA to more effectively use the sci entific and commercial data generated through the FIFRA regulatory process as part of the best scientific and com mercial data available to protect listed species and critical habitat. The proce dures authorized by these counterpart regulations will be as protective of list ed species and critical habitat as the process established in subpart B of this part. § 402.42 Scope and applicability. (a) Available consultation procedures. This subpart describes consultation procedures available to EPA to satisfy the obligations of section 7(a)(2) of the Act in addition to those in subpart B of this part for FIFRA actions authorized, funded, or carried out by EPA in which EPA has discretionary Federal involve ment or control. EPA retains discre tion to initiate early, informal, or for mal consultation as described in §§ 402.11, 402.13, and 402.14 for any FIFRA action. The procedures in this subpart may be employed for FIFRA actions as follows: (1) Interagency exchanges of informa tion under § 402.43 and advance coordi nation under § 402.44 are available for any FIFRA action. (2) Alternative consultation under § 402.45 is available for a listed species or critical habitat if EPA determines the FIFRA action is not likely to ad versely affect the listed species or crit ical habitat. (3) Optional formal consultation under § 402.46 is available for any FIFRA action with respect to any list ed species or critical habitat. (4) The special procedures in § 402.47 are available for consultations on FIFRA actions that will be unusually complex due to factors such as the geo graphic area or number of species that may be affected by the action. (5) EPA shall engage in consultation as to all listed species and critical habitat that may be affected by a FIFRA action, and may in its discre tion employ more than one of the available consultation procedures for a FIFRA action that may affect more than one listed species or critical habi tat. (6) EPA shall engage in consultation on actions involving requests for emer gency exemptions under section 18 of FIFRA that may affect listed species or critical habitat, and may choose to do so under § 402.05 or other provisions of this subpart or subpart B of this part. Any required formal consultation shall be initiated as soon as practicable after the emergency is under control. For the purposes of § 402.05(b) the defi nition of formal consultation in § 402.02 includes the procedures in § 402.46. (7) EPA must prepare a biological as sessment for a FIFRA action to the ex tent required by § 402.12. (8) EPA must comply with § 402.15 for all FIFRA actions. (9) After a consultation under this subpart has been concluded, EPA shall reinitiate consultation as required by § 402.16 as soon as practicable after a circumstance requiring reinitiation oc curs, and may employ the procedures in this subpart or subpart B of this part in any reinitiated consultation. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00381 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 372 50 CFR Ch. IV (10–1–22 Edition) § 402.43 (b) Exchanges of scientific information. As part of any of the additional con sultation procedures provided in this subpart, EPA and the Services shall es tablish mutually-agreeable procedures for regular and timely exchanges of scientific information to achieve accu rate and informed decision-making under this subpart and to ensure that the FIFRA process considers the best scientific and commercial data avail able on listed species and critical habi tat in a manner consistent with the re quirements of FIFRA and ESA. § 402.43 Interagency exchanges of in formation. EPA may convey to the Service a written request for a list of any listed species or critical habitat that may be present in any area that may be af fected by a FIFRA action. Within 30 days of receipt of such a request the Service shall advise EPA in writing whether, based on the best scientific and commercial data available, any listed species or critical habitat may be present in any such area. EPA may thereafter request the Service to pro vide available information (or ref erences thereto) describing the applica ble environmental baseline for each species or habitat that EPA determines may be affected by a FIFRA action, and the Service shall provide such in formation within 30 days of the re quest. § 402.44 Advance coordination for FIFRA actions. (a) Advance coordination. EPA may request the Service to designate a Service Representative to work with EPA in the development of an effects determination for one or more listed species or critical habitat. EPA shall make such a request in writing and shall provide sufficient detail as to a FIFRA action planned for consultation to enable the Service to designate a representative with appropriate train ing and experience who shall normally be available to complete advance co ordination with EPA within 60 days of the date of designation. Within 14 days of receiving such a request, the Service shall advise EPA of the designated Service Representative. (b) Participation of Service Representa tive in preparation of effects determina tion. The Service Representative des ignated under paragraph (a) of this sec tion shall participate with EPA staff in the preparation of the effects deter mination identified under paragraph (a) of this section. EPA shall use its best efforts to include the designated Service Representative in all relevant discussions on the effects determina tion, to provide the designated Service Representative with access to all docu mentation used to prepare the effects determination, and to provide the des ignated Service Representative office and staff support sufficient to allow the Service Representative to partici pate meaningfully in the preparation of the effects determination. EPA shall consider all information timely identi fied by the designated Service Rep resentative during the preparation of the effects determination. § 402.45 Alternative consultation on FIFRA actions that are not likely to adversely affect listed species or critical habitat. (a) Consultation obligations for FIFRA actions that are not likely to adversely af fect listed species or critical habitat when alternative consultation agreement is in effect. If EPA and the Service have en tered into an alternative consultation agreement as provided below, EPA may make a determination that a FIFRA action is not likely to adversely affect a listed species or critical habitat without informal consultation or writ ten concurrence from the Director, and upon making such a determination for a listed species or critical habitat, EPA need not initiate any additional con sultation on that FIFRA action as to that listed species or critical habitat. As part of any subsequent request for formal consultation on that FIFRA ac tion under this subpart or subpart B of this part, EPA shall include a list of all listed species and critical habitat for which EPA has concluded consultation under this section. (b) Procedures for adopting and imple menting an alternative consultation agreement. EPA and the Service may enter into an alternative consultation agreement using the following proce dures: VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00382 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 373 FWS, DOI, and NOAA, Commerce § 402.45 (1) Initiation. EPA submits a written notification to the Service Director of its intent to enter into an alternative consultation agreement. (2) Required contents of the alternative consultation agreement. The alternative consultation agreement will, at a min imum, include the following compo nents: (i) Adequacy of EPA Determinations under the ESA. The alternative con sultation agreement shall describe ac tions that EPA and the Service have taken to ensure that EPA’s determina tions regarding the effects of its ac tions on listed species or critical habi tat are consistent with the ESA and applicable implementing regulations. (ii) Training. The alternative con sultation agreement shall describe ac tions that EPA and the Service intend to take to ensure that EPA and Service personnel are adequately trained to carry out their respective roles under the alternative consultation agree ment. The alternative consultation agreement shall provide that all effects determinations made by EPA under this subpart have been reviewed and concurred on by an EPA staff member who holds a current certification as having received appropriate training under the alternative consultation agreement. (iii) Incorporation of new information. The alternative consultation agree ment shall describe processes that EPA and the Service intend to use to ensure that new information relevant to EPA’s effects determinations is timely and appropriately considered. (iv) Incorporation of scientific ad vances. The alternative consultation agreement shall describe processes that EPA and the Service intend to use to ensure that the ecological risk assess ment methodologies supporting EPA’s effects determinations incorporate rel evant scientific advances. (v) Oversight. The alternative con sultation agreement shall describe the program and associated record keeping procedures that the Service and EPA intend to use to evaluate EPA’s proc esses for making effects determina tions consistent with these regulations and the alternative consultation agree ment. The alternative consultation agreement shall provide that the Serv ice’s oversight will be based on periodic evaluation of EPA’s program for mak ing effects determinations under this subpart. Periodic program evaluation will occur at the end of the first year following signature of the alternative consultation agreement and should normally occur at least every five years thereafter. (vi) Records. The alternative con sultation agreement shall include a provision for EPA to maintain a list of FIFRA actions for which EPA has made determinations under this sec tion and to provide the list to the Serv ices on request. EPA will also maintain the necessary records to allow the Service to complete program evalua tions. (vii) Review of Alternative Consultation Agreement. The alternative consulta tion agreement shall include provisions for regular review and, as appropriate, modification of the agreement by EPA and the Service, and for departure from its terms in a particular case to the ex tent deemed necessary by both EPA and the Service. (3) Training. After EPA and the Serv ice enter into the alternative consulta tion agreement, EPA and the Service will implement the training program outlined in the alternative consulta tion agreement to the mutual satisfac tion of EPA and the Service. (4) Public availability. The alternative consultation agreement and any re lated oversight or monitoring reports shall be made available to the public to the extent provided by law. (c) Oversight of alternative consultation agreement implementation. Through the program evaluations set forth in the alternative consultation agreement, the Service will determine whether the implementation of this section by EPA is consistent with the best scientific and commercial information available, the ESA, and applicable implementing regulations. The Service Director may use the results of the program evalua tions described in the alternative con sultation agreement to recommend changes to EPA’s implementation of the alternative consultation agree ment. The Service Director retains dis cretion to terminate or suspend the al ternative consultation agreement if, in using the procedures in this subpart, VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 374 50 CFR Ch. IV (10–1–22 Edition) § 402.46 EPA fails to comply with the require ments of this subpart, section 7 of the ESA, or the terms of the alternative consultation agreement. Termination, suspension, or modification of an alter native consultation agreement does not affect the validity of any NLAA de terminations made previously under the authority of this subpart. § 402.46 Optional formal consultation procedure for FIFRA actions. (a) Initiation of consultation. EPA may initiate consultation on a FIFRA ac tion under this section by delivering to the Service a written request for con sultation. The written request shall be accompanied by an effects determina tion as defined in § 402.40(b) and a list or summary of all references and data relied upon in the determination. All such references and data shall be made available to the Service on request and shall constitute part of the Service’s administrative record for the consulta tion. The time for conclusion of the consultation under section 7(b)(1) of the Act is calculated from the date the Service receives the written request from EPA. Any subsequent inter changes regarding EPA’s submission, including interchanges about the com pleteness of the effects determination, shall occur during consultation and do not extend the time for conclusion of the consultation unless EPA withdraws the request for consultation. (b) Additional information determina tion. For an effects determination pre pared without advance coordination under § 402.44, the Service may deter mine that additional available infor mation would provide a better informa tion base for the effects determination, in which case the Service Director shall notify the EPA Administrator within 45 days of the date the Service receives the effects determination. The notification shall describe such addi tional information in detail, and shall identify a means for obtaining that in formation within the time period avail able for consultation. EPA shall pro vide a copy of the Service Director’s notification to any applicant. EPA may thereafter revise its effects deter mination, and may resubmit the re vised effects determination to the Service. If EPA advises the Service it will not resubmit a revised effects de termination to the Service, its initi ation of consultation on the effects de termination is deemed withdrawn. (c) Service responsibilities. (1) Within the later of 90 days of the date the Service receives EPA’s written request for consultation or 45 days of the date the Service receives an effects deter mination resubmitted under paragraph (b) of this section, and consistent with section 7(b)(1) of the Act, the Service shall take one of the following actions: (i) If the Service finds that the ef fects determination contains the infor mation required by § 402.40(b) and satis fies the requirements of section 7(b)(4) of the Act, and the Service concludes that the FIFRA action that is the sub ject of the consultation complies with section 7(a)(2) of the Act, the Service will issue a written statement adopting the effects determination; or (ii) The Service will provide EPA a draft of a written statement modifying the effects determination, which shall meet the requirements of § 402.14(i), and as modified adopting the effects deter mination, and shall provide a detailed explanation of the scientific and com mercial data and rationale supporting any modification it makes; or (iii) The Service will provide EPA a draft of a biological opinion finding that the FIFRA action is likely to jeopardize the continued existence of a listed species or result in the destruc tion or adverse modification of critical habitat, and describing any reasonable and prudent alternatives if available. (2) If the Service acts under para graphs (c)(1)(ii) or (c)(1)(iii) of this sec tion, EPA shall, on request from an ap plicant, provide the applicant a copy of the draft written statement or draft bi ological opinion received from the Service. The Service shall at the re quest of EPA or an applicant discuss with EPA and the applicant the Serv ice’s review and evaluation under this section, and the basis for its findings. EPA and any applicant may submit written comments to the Service with in 30 days after EPA receives the draft written statement or opinion from the Service unless the Service, EPA and any applicant agree to an extended deadline consistent with section 7(b)(1) of the Act. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 375 FWS, DOI, and NOAA, Commerce § 403.01 (3) The Service will issue a final writ ten statement or final biological opin ion within 45 days after EPA receives the draft statement or opinion from the Service unless the deadline is ex tended under section 7(b)(1) of the Act. (d) Opinion of the Secretary. The writ ten statement or opinion by the Serv ice under paragraphs (c)(1) or (c)(3) of this section shall constitute the opin ion of the Secretary and the incidental take statement, reasonable and pru dent measures, and terms and condi tions under section 7(b) of the Act. (e) Delegation of Authority for Service decisions. Any written statement modi fying an effects determination or any biological opinion issued under this section shall be signed by the Service Director and such authority may not be delegated below the level of Assist ant Director for Endangered Species (FWS) or Director of Office of Pro tected Resources (NOAA Fisheries). § 402.47 Special consultation proce dures for complex FIFRA actions. (a) Successive effects determinations. If EPA determines after conferring with the Service that consultation on a FIFRA action will be unusually com plex due to factors such as the geo graphic area or number of species that may be affected by the action, EPA may address the effects of the action through successive effects determina tions under this subpart addressing groupings or categories of species or habitats as established by EPA. EPA may initiate consultation based upon each such effects determination using the procedure in § 402.46(a), and the pro visions of § 402.46(b) and (c) shall apply to any such consultation. When con sultation is conducted under this sec tion, the written statement or opinion provided by the Service under § 402.46(c) constitutes a partial biological opinion as to the species or habitats that are the subject of the consultation. While not constituting completion of con sultation under section 7(a)(2), EPA re tains authority to use such a partial biological opinion along with other available information in making a finding under section 7(d) of the Act. (b) Opinion of the Secretary. After con clusion of all consultation on the FIFRA action, the partial biological opinions issued under paragraph (a) of this section shall then collectively con stitute the opinion of the Secretary and the incidental take statement, rea sonable and prudent measures, and terms and conditions under section 7(b) of the Act except to the extent a par tial biological opinion is modified by the Service in accordance with the pro cedures in § 402.46(c). The Service shall so advise EPA in writing upon issuance of the last partial biological opinion for the consultation. § 402.48 Conference on proposed spe cies or proposed critical habitat. EPA may employ the procedures de scribed in § 402.10 to confer on any spe cies proposed for listing or any habitat proposed for designation as critical habitat. For the purposes of § 402.10(d), the procedures in § 402.46 are a permis sible form of formal consultation. PART 403—TRANSFER OF MARINE MAMMAL MANAGEMENT AU THORITY TO STATES Sec. 403.01 Purpose and scope of regulations. 403.02 Definitions. 403.03 Review and approval of State request for management authority. 403.04 Determinations and hearings under section 109(c) of the MMPA. 403.05 State and Federal responsibilities after transfer of management authority. 403.06 Monitoring and review of State man agement program. 403.07 Revocation and return of State man agement authority. 403.08 List of States to which management has been transferred. AUTHORITY: 16 U.S.C. 1361 et seq., as amend ed by Pub. L. 97–58. SOURCE: 48 FR 22456, May 18, 1983, unless otherwise noted. § 403.01 Purpose and scope of regula tions. The regulations contained in this part implement section 109 of the Act which, upon a finding by the Secretary of compliance with certain require ments, provides for the transfer of ma rine mammal management authority to the states. (a) The regulations of this part apply the procedures for the transfer of ma rine mammal management authority VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00385 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B