50 CFR § 452.01-451.09 - Consideration of Application by the Secretary

419 FWS, DOI, and NOAA, Commerce Pt. 452 (vi) A complete discussion of mitiga tion and enhancement measures pro posed to be undertaken if an exemption is granted. (6) When the exemption applicant is a license or permit applicant or a Gov ernor, a copy of the application shall be provided by the exemption applicant at the time the application is filed, to the Federal agency which denied the li cense or permit. (f) Review of the application by the Sec retary. (1) Upon receiving the applica tion, the Secretary shall review the contents thereof and consider whether the application complies with the re quirements set forth in paragraphs (c), (d) and (e) of this section. (2) The Secretary shall reject an ap plication within 10 days of receiving it if he determines that it does not com ply with paragraphs (c), (d) and (e) of this section. If the Secretary rejects an application because it does not contain the information required by paragraph (e) of this section, the applicant may resubmit a revised application so long as the applicant does so during the 90 day period specified in paragraph (d) of this section. (3) If the Secretary finds that the ap plication meets the requirements of paragraphs (c), (d), and (e) of this sec tion, he will consider the application in accordance with part 452. (g) Notification of the Secretary of State. The Secretary will promptly transmit to the Secretary of State a copy of all applications submitted in accordance with § 451.02. (h) Public notification. Upon receipt of an application for exemption, the Sec retary shall promptly publish a notice in the FEDERAL REGISTER (1) announc ing that an application has been filed, (2) stating the applicant’s name, (3) briefly describing the proposed agency action and the result of the consulta tion process, (4) summarizing the infor mation contained in the application, (5) designating the place where copies of the application can be obtained and (6) specifying the name of the person to contact for further information. The Secretary will promptly notify each member of the Committee upon receipt of an application for exemption. (i) The information collection re quirements contained in part 451 do not require approval by the Office of Man agement and Budget under 44 U.S.C. 3501 et seq., because it is anticipated there will be fewer than ten respond ents annually. § 451.03 Endangered Species Com mittee. (a) Scope. This section contains provi sions governing the relationship be tween the Secretary and the Endan gered Species Committee. (b) Appointment of State member. (1) Upon receipt of an application for ex emption, the Secretary shall promptly notify the Governors of each affected State, if any, as determined by the Sec retary, and request the Governors to recommend individuals to be appointed to the Endangered Species Committee for consideration of the application. Written recommendations of these Governors must be received by the Sec retary within 10 days of receipt of noti fication. The Secretary will transmit the Governors’ recommendations to the President and will request that the President appoint a State resident to the Endangered Species Committee from each affected State within 30 days after the application for exemption was submitted. (2) When no State is affected, the Secretary will submit to the President a list of individuals with expertise rel evant to the application and will re quest the President to appoint, within 30 days after the application for exemp tion was submitted, an individual to the Endangered Species Committee. PART 452—CONSIDERATION OF APPLICATION BY THE SECRETARY Sec. 452.01 Purpose and scope. 452.02 Definitions. 452.03 Threshold review and determinations. 452.04 Secretary’s report. 452.05 Hearings. 452.06 Parties and intervenors. 452.07 Separation of functions and ex parte communications. 452.08 Submission of Secretary’s report. 452.09 Consolidated and joint proceedings. AUTHORITY: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., as amended. SOURCE: 50 FR 8129, Feb. 28, 1985, unless otherwise noted. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00429 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 420 50 CFR Ch. IV (10–1–22 Edition) § 452.01 § 452.01 Purpose and scope. This part prescribes the procedures to be used by the Secretary when ex amining applications for exemption from section 7(a)(2) of the Endangered Species Act. § 452.02 Definitions. Definitions applicable to this part are contained in 50 CFR 450.01. § 452.03 Threshold review and deter minations. (a) Threshold determinations. Within 20 days after receiving an exemption ap plication, or a longer time agreed upon between the exemption applicant and the Secretary, the Secretary shall con clude his review and determine: (1) Whether any required biological assessment was conducted; (2) To the extent determinable within the time period provided, whether the Federal agency and permit or license applicant, if any, have refrained from making any irreversible or irretriev able commitment of resources; and (3) Whether the Federal agency and permit or license applicant, if any, have carried out consultation respon sibilities in good faith and have made a reasonable and responsible effort to de velop and fairly consider modifications or reasonable and prudent alternatives to the proposed action which would not violate section 7(a)(2) of the Act. (b) Burden of proof. The exemption applicant has the burden of proving that the requirements of § 452.03(a) have been met. (c) Negative finding. If the Secretary makes a negative finding on any threshold determination, the Secretary shall deny the application and notify the exemption applicant in writing of his finding and grounds therefor. The exemption process shall terminate when the applicant receives such writ ten notice. The Secretary’s denial shall constitute final agency action for pur poses of judicial review under chapter 7 of title 5 of the United States Code. (d) Positive finding. If the Secretary makes a positive finding on each of the threshold determinations, he shall no tify the exemption applicant in writing that the application qualifies for con sideration by the Endangered Species Committee. (e) Secretary of State opinion. The Sec retary shall terminate the exemption process immediately if the Secretary of State, pursuant to his obligations under section 7(i) of the Act, certifies in writing to the Committee that granting an exemption and carrying out the proposed action would violate an international treaty obligation or other international obligation of the United States. § 452.04 Secretary’s report. (a) Contents of the report. If the Sec retary has made a positive finding on each of the threshold determinations, he shall proceed to gather information and prepare a report for the Endan gered Species Committee: (1) Discussing the availability of rea sonable and prudent alternatives to the proposed action; (2) Discussing the nature and extent of the benefits of the proposed action; (3) Discussing the nature and extent of the benefits of alternative courses of action consistent with conserving the species or the critical habitat; (4) Summarizing the evidence con cerning whether the proposed action is of national or regional significance; (5) Summarizing the evidence con cerning whether the proposed action is in the public interest; (6) Discussing appropriate and rea sonable mitigation and enhancement measures which should be considered by the Committee in granting an ex emption; and (7) Discussing whether the Federal agency and permit or license applicant, if any, have refrained from making any irreversible or irretrievable commit ment of resources. (b) Preparation of the report. The re port shall be prepared in accordance with procedures set out in § 452.05 and § 452.09. § 452.05 Hearings. (a) Hearings. (1) To develop the record for the report under § 452.04, the Sec retary, in consultation with the mem bers of the Committee, shall hold a hearing in accordance with 5 U.S.C. 554, 555, and 556. (2) The Secretary shall designate an Administrative Law Judge to conduct the hearing. The Secretary shall assign VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00430 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 421 FWS, DOI, and NOAA, Commerce § 452.05 technical staff to assist the Adminis trative Law Judge. (3) When the Secretary designates the Administrative Law Judge, the Secretary may establish time periods for conducting the hearing and closing the record. (4) The Secretary may require the ap plicant to submit further discussions of the information required by § 451.02(e)(5). This information will be made part of the record. (b) Prehearing conferences. (1) The Ad ministrative Law Judge may, on his own motion or the motion of a party or intervenor, hold a prehearing con ference to consider: (i) The possibility of obtaining stipu lations, admissions of fact or law and agreement to the introduction of docu ments; (ii) The limitation of the number of witnesses; (iii) Questions of law which may bear upon the course of the hearings; (iv) Prehearing motions, including motions for discovery; and (v) Any other matter which may aid in the disposition of the proceedings. (2) If time permits and if necessary to materially clarify the issues raised at the prehearing conference, the Admin istrative Law Judge shall issue a state ment of the actions taken at the con ference and the agreements made. Such statement shall control the subsequent course of the hearing unless modified for good cause by a subsequent state ment. (c) Notice of hearings. Hearings and prehearing conferences will be an nounced by a notice in the FEDERAL REGISTER stating: (1) The time, place and nature of the hearing or prehearing conference; and (2) the matters of fact and law to be considered. Such notices will ordinarily be published at least 15 days before the scheduled hearings. (d) Conduct of hearings—(1) Admissi bility of evidence. Relevant, material, and reliable evidence shall be admit ted. Immaterial, irrelevant, unreliable, or unduly repetitious parts of an ad missible document may be segregated and excluded so far as practicable. (2) Motions, objections, rebuttal and cross-examination. Motions and objec tions may be filed with the Adminis trative Law Judge, rebuttal evidence may be submitted, and cross-examina tion may be conducted, as required for a full and true disclosure of the facts, by parties, witnesses under subpoena, and their respective counsel. (i) Objections. Objections to evidence shall be timely, and the party making them may be required to state briefly the grounds relied upon. (ii) Offers of proof. When an objection is sustained, the examining party may make a specific offer of proof and the Administrative Law Judge may receive the evidence in full. Such evidence, adequately marked for identification, shall be retained in the record for con sideration by any reviewing authority. (iii) Motions. Motions and petitions shall state the relief sought, the basis for relief and the authority relied upon. If made before or after the hearing itself, these matters shall be in writing and shall be filed and served on all par ties. If made at the hearing, they may be stated and responded to orally, but the Administrative Law Judge may re quire that they be reduced to writing. Oral argument on motions and dead lines by which to file responses to writ ten motions will be at the discretion of the Administrative Law Judge. (e) Applicant responsibility. In pro ceedings conducted pursuant to this section, the exemption applicant has the burden of going forward with evi dence concerning the criteria for ex emption. (f) Open meetings and record. All hear ings and all hearing records shall be open to the public. (g) Requests for information, subpoenas. (1) The Administrative Law Judge is authorized to exercise the authority of the Committee to request, subject to the Privacy Act of 1974, that any per son provide information necessary to enable the Committee to carry out its duties. Any Federal agency or the ex emption applicant shall furnish such information to the Administrative Law Judge. (2) The Administrative Law Judge may exercise the authority of the Committee to issue subpoenas for the attendance and testimony of wit nesses and the production of relevant papers, books, and documents. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00431 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 422 50 CFR Ch. IV (10–1–22 Edition) § 452.06 (h) Information collection. The infor mation collection requirements con tained in § 452.05 do not require ap proval by the Office of Management and Budget under 44 U.S.C. 3501 et seq., because it is anticipated there will be fewer than ten respondents annually. § 452.06 Parties and intervenors. (a) Parties. The parties shall consist of the exemption applicant, the Fed eral agency responsible for the agency action in question, the Service, and in tervenors whose motions to intervene have been granted. (b) Intervenors. (1) The Administra tive Law Judge shall provide an oppor tunity for intervention in the hearing. A motion to intervene must state the petitioner’s name and address, identify its representative, if any, set forth the interest of the petitioner in the pro ceeding and show that the petitioner’s participation would assist in the deter mination of the issues in question. (2) The Administrative Law Judge shall grant leave to intervene if he de termines that an intervenor’s partici pation would contribute to the fair de termination of issues. In making this determination, the Administrative Law Judge may consider whether an inter venor represents a point of view not adequately represented by a party or another intervenor. § 452.07 Separation of functions and ex parte communications. (a) Separation of functions. (1) The Ad ministrative Law Judge and the tech nical staff shall not be responsible for or subject to the supervision or direc tion of any person who participated in the endangered species consultation at issue; (2) The Secretary shall not allow an agency employee or agent who partici pated in the endangered species con sultation at issue or a factually related matter to participate or advise in a de termination under this part except as a witness or counsel in public pro ceedings. (b) Ex parte communications. The pro visions of 5 U.S.C. 557(d) apply to the hearing and the preparation of the re port. § 452.08 Submission of Secretary’s re port. (a) Upon closing of the record, the Administrative Law Judge shall certify the record and transmit it to the Sec retary for preparation of the Sec retary’s report which shall be based on the record. The Secretary may direct the Administrative Law Judge to re open the record and obtain additional information if he determines that such action is necessary. (b) The Secretary shall submit his re port and the record of the hearing to the Committee within 140 days after making his threshold determinations under § 452.03(a) or within such other period of time as is mutually agreeable to the applicant and the Secretary. § 452.09 Consolidated and joint pro ceedings. (a) When the Secretary is considering two or more related exemption applica tions, the Secretary may consider them jointly and prepare a joint report if doing so would expedite or simplify consideration of the issues. (b) When the Secretaries of the Inte rior and Commerce are considering two or more related exemption applica tions, they may consider them jointly and prepare a joint report if doing so would expedite or simplify consider ation of the issues. PART 453—ENDANGERED SPECIES COMMITTEE Sec. 453.01 Purpose. 453.02 Definitions. 453.03 Committee review and final deter minations. 453.04 Committee information gathering. 453.05 Committee meetings. 453.06 Additional Committee powers. AUTHORITY: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., as amended. SOURCE: 50 FR 8130, Feb. 28, 1985, unless otherwise noted. § 453.01 Purpose. This part prescribes the procedures to be used by the Endangered Species Committee when examining applica tions for exemption from section 7(a)(2) of the Endangered Species Act of 1973, as amended. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00432 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