50 CFR § 453.01-453.06 - Endangered Species Committee

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 423 FWS, DOI, and NOAA, Commerce § 453.04 § 453.02 Definitions. Definitions applicable to this part are contained in 50 CFR 450.01. § 453.03 Committee review and final determinations. (a) Final determinations. Within 30 days of receiving the Secretary’s report and record, the Committee shall grant an exemption from the requirements of section 7(a)(2) of the Act for an agency action if, by a vote in which at least five of its members concur: (1) It determines that based on the report to the Secretary, the record of the hearing held under § 452.05, and on such other testimony or evidence as it may receive: (i) There are no reasonable and pru dent alternatives to the proposed ac tion; (ii) The benefits of such action clear ly outweigh the benefits of alternative courses of action consistent with con serving the species or its critical habi tat, and such action is in the public in terest; (iii) The action is of regional or na tional significance; and (iv) Neither the Federal agency con cerned nor the exemption applicant made any irreversible or irretrievable commitment of resources prohibited by section 7(d) of the Act; and, (2) It establishes such reasonable mitigation and enhancement measures, including, but not limited to, live prop agation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the proposed ac tion upon the endangered species, threatened species, or critical habitat concerned. Any required mitigation and enhancement measures shall be carried out and paid for by the exemp tion applicant. (b) Decision and order. The Commit tee’s final determinations shall be doc umented in a written decision. If the Committee determines that an exemp tion should be granted, the Committee shall issue an order granting the ex emption and specifying required miti gation and enhancement measures. The Committee shall publish its decision and order in the FEDERAL REGISTER as soon as practicable. (c) Permanent exemptions. Under sec tion 7(h)(2) of the Act, an exemption granted by the Committee shall con stitute a permanent exemption with re spect to all endangered or threatened species for the purposes of completing such agency action— (1) Regardless of whether the species was identified in the biological assess ment, and (2) Only if a biological assessment has been conducted under section 7(c) of the Act with respect to such agency action. Notwithstanding the foregoing, an exemption shall not be permanent if— (i) The Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of a species that was not the subject of consulta tion under section 7(a)(2) of the Act or was not identified in any biological as sessment conducted under section 7(c) of the Act, and (ii) The Committee determines with in 60 days after the date of the Sec retary’s finding that the exemption should not be permanent. If the Secretary makes a finding that the exemption would result in the ex tinction of a species, as specified above, the Committee shall meet with respect to the matter within 30 days after the date of the finding. During the 60 day period following the Sec retary’s determination, the holder of the exemption shall refrain from any action which would result in extinction of the species. (d) Finding by the Secretary of Defense. If the Secretary of Defense finds in writing that an exemption for the agency action is necessary for reasons of national security, the Committee shall grant the exemption notwith standing any other provision in this part. § 453.04 Committee information gath ering. (a) Written submissions. When the Chairman or four Committee members decide that written submissions are necessary to enable the Committee to make its final determinations, the Chairman shall publish a notice in the FEDERAL REGISTER inviting written submissions from interested persons. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00433 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 424 50 CFR Ch. IV (10–1–22 Edition) § 453.05 The notice shall include: (1) The ad dress to which such submissions are to be sent; (2) the deadline for such sub missions; and (3) a statement of the type of information needed. (b) Public hearing. (1) When the Chair man or four Committee members de cide that oral presentations are nec essary to enable the Committee to make its final determinations, a public hearing shall be held. (2) The public hearing shall be con ducted by (i) the Committee or (ii) a member of the Committee or other per son, designated by the Chairman or by four members of the Committee. (3) Notice. The Chairman shall publish in the FEDERAL REGISTER a general no tice of a public hearing, stating the time, place and nature of the public hearing. (4) Procedure. The public hearing shall be open to the public and con ducted in an informal manner. All in formation relevant to the Committee’s final determinations shall be admis sible, subject to the imposition of rea sonable time limitations on oral testi mony. (5) Transcript. Public hearings will be recorded verbatim and a transcript thereof will be available for public in spection. § 453.05 Committee meetings. (a) The committee shall meet at the call of the Chairman or five of its members. (b) Five members of the Committee or their representatives shall con stitute a quorum for the transaction of any function of the Committee, except that in no case shall any representa tive be considered in determining the existence of a quorum for the trans action of a Committee function which involves a vote by the Committee on the Committee’s final determinations. (c) Only members of the Committee may cast votes. In no case shall any representative cast a vote on behalf of a member. (d) Committee members appointed from the affected States shall collec tively have one vote. They shall deter mine among themselves how it will be cast. (e) All meetings and records of the Committee shall be open to the public. (f) The Chairman shall publish a no tice of all Committee meetings in the FEDERAL REGISTER. The notice will or dinarily be published at least 15 days prior to the meeting. § 453.06 Additional Committee powers. (a) Secure information. Subject to the Privacy Act, the Committee may se cure information directly from any Federal agency when necessary to en able it to carry out its duties. (b) Subpoenas. For the purpose of ob taining information necessary for the consideration of an application for an exemption, the Committee may issue subpoenas for the attendance and testi mony of witnesses and the production of relevant papers, books, and docu ments. (c) Rules and orders. The Committee may issue and amend such rules and orders as are necessary to carry out its duties. (d) Delegate authority. The Committee may delegate its authority under para graphs (a) and (b) of this section to any member. PARTS 454–499 [RESERVED] VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00434 Fmt 8010 Sfmt 8006 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B