50 CFR § 451.01-451.03 - Application Procedure

417 FWS, DOI, and NOAA, Commerce § 451.02 the appropriate Federal agency pursu ant to a Freedom of Information Act request. [50 FR 8126, Feb. 28, 1985] PART 451—APPLICATION PROCEDURE Sec. 451.01 Definitions. 451.02 Applications for exemptions. 451.03 Endangered Species Committee. AUTHORITY: Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., as amended. SOURCE: 50 FR 8127, Feb. 28, 1985, unless otherwise noted. § 451.01 Definitions. All definitions contained in 50 CFR 450.01 are applicable to this part. § 451.02 Applications for exemptions. (a) Scope. This section prescribes the application procedures for applying for an exemption from the requirements of section 7(a)(2) of the Endangered Spe cies Act, as amended. (b) Where to apply. Applications should be made to the appropriate Sec retary(ies) by writing: (1) The Secretary, Attention: Endan gered Species Committee, Department of the Interior, 18th and C Street, NW., Washington, DC 20240. (2) The Secretary, Department of Commerce, 14th Street and Constitu tion Avenue NW., Washington, DC 20030. (c) Who may apply. (1) A Federal agency, (2) the Governor of the State in which an agency action will occur, if any, or (3) a permit or license applicant may apply to the Secretary for an ex emption for an agency action if, after consultation under section 7(a)(2) of the Act, the Secretary’s opinion indi cates that the agency action would vio late section 7(a)(2) of the Act. (d) When to apply. (1) Except in the case of agency action involving a per mit or license application, an applica tion for an exemption must be sub mitted to the Secretary within 90 days following the termination of the con sultation process. (2) In the case of agency action in volving a permit or license application, an application for an exemption may be submitted after the Federal agency concerned formally denies the permit or license. An applicant denied a per mit or license may not simultaneously seek administrative review within the permitting or licensing agency and apply for an exemption. If administra tive review is sought, an application for an exemption may be submitted if that review results in a formal denial of the permit or license. For an exemp tion application to be considered, it must be submitted within 90 days after the date of a formal denial of a permit or license. (e) Contents of the application when submitted. Exemption applicants must provide the following information at the time the application is submitted. (1) Name, mailing address, and phone number, including the name and tele phone number of an individual to be contacted regarding the application. (2) If the applicant is a Federal agen cy: (i) A comprehensive description of the proposed agency action and if a li cense or permit denial is involved, a comprehensive description of the li cense or permit applicant’s proposed action. (ii) In the case of a denial of a license or permit, a description of the permit or license sought, including a state ment of who in the Federal agency de nied the permit or license, the grounds for the denial, and a copy of the permit or license denial. (iii) A description of all permit(s), li cense(s) or other legal requirements which have been satisfied or obtained, or which must still be satisfied or ob tained, before the proposed action can proceed. (iv) A description of the consultation process carried out pursuant to section 7(a) of the Act. (v) A copy of the biological assess ment, if one was prepared. (vi) A copy of the biological opinion. (vii) A description of each alternative to the proposed action considered by the Federal agency, by the licensing or permitting agency, and by the permit or license applicant, to the extent known. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00427 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 418 50 CFR Ch. IV (10–1–22 Edition) § 451.02 (viii) A statement describing why the proposed agency action cannot be al tered or modified to avoid violating section 7(a)(2) of the Act. (ix) A description of resources com mitted by the Federal agency, or the permit or license applicant, if any, to the proposed action subsequent to the initiation of consultation. (3) If the applicant is a permit or li cense applicant other than a Federal agency: (i) A comprehensive description of the applicant’s proposed action. (ii) A description of the permit or li cense sought from the Federal agency, including a statement of who in that agency denied the permit or license and the grounds for the denial. (iii) A description of all permit(s), li cense(s) or other legal requirements which have been satisfied or obtained, or which must still be satisfied or ob tained, before it can proceed with the proposed action. (iv) A copy of the permit or license denial. (v) A copy of the biological assess ment, if one was prepared. (vi) A copy of the biological opinion. (vii) A description of the consulta tion process carried out pursuant to section 7(a) of the Act, to the extent that such information is available to the applicant. (viii) A description of each alter native to the proposed action consid ered by the applicant, and to the ex tent that such information is available to the applicant, a description of each alternative to the proposed action con sidered by the Federal agency. (ix) A statement describing why the applicant’s proposed action cannot be altered or modified to avoid violating section 7(a)(2) of the Act. (x) A description of resources com mitted to the proposed action by the permit or license applicant subsequent to the initiation of consultation. (4) If the applicant is the Governor of a State in which the proposed agency action may occur: (i) A comprehensive description of the proposed agency action and if a li cense or permit denial is involved, a comprehensive description of the li cense or permit applicant’s proposed action. (ii) A description of the permit or li cense, if any, sought from the Federal agency, including a statement of who in that agency denied the permit or li cense and the grounds for the denial, to the extent that such information is available to the Governor. (iii) A description of all permit(s), li cense(s) or other legal requirements which have been satisfied or obtained, or which must still be satisfied or ob tained before the agency can proceed with the proposed action, to the extent that such information is available to the Governor. (iv) A copy of the biological assess ment, if one was prepared. (v) A copy of the biological opinion. (vi) A description of the consultation process carried out pursuant to section 7(a) of the Act, to the extent that such information is available to the Gov ernor. (vii) A description of all alternatives considered by the Federal agency, by the licensing or permitting agency, and by the permit or license applicant, to the extent that such information is available to the Governor. (viii) A statement describing why the proposed agency action cannot be al tered or modified to avoid violating section 7(a)(2) of the Act. (ix) A description of resources com mitted to the proposed action subse quent to the initiation of consultation, to the extent that such information is available to the Governor. (5) Each applicant, whether a Federal agency, a permit or license applicant, or a Governor, must also submit the following: (i) A complete statement of the na ture and the extent of the benefits of the proposed action. (ii) A complete discussion of why the benefits of the proposed action clearly outweigh the benefits of each consid ered alternative course of action. (iii) A complete discussion of why none of the considered alternatives are reasonable and prudent. (iv) A complete statement explaining why the proposed action is in the pub lic interest. (v) A complete explanation of why the action is of regional or national significance. VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00428 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 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