50 CFR Part 452 — Consideration of Application by the Secretary

PART 452—CONSIDERATION OF APPLICATION BY THE SECRETARY Authority: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., Source: 50 FR 8129, Feb. 28, 1985, unless otherwise noted. § 452.01 Purpose and scope. This part prescribes the procedures to be used by the Secretary when examining 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 determinations. (a) Threshold determinations. (1) Whether any required biological assessment was conducted; (2) To the extent determinable within the time period provided, whether the Federal agency and permit or license applicant, if any, have refrained from making any irreversible or irretrievable commitment of resources; and (3) Whether the Federal agency and permit or license applicant, if any, have carried out consultation responsibilities in good faith and have made a reasonable and responsible effort to develop and fairly consider modifications or reasonable and prudent alternatives to the proposed action which would not violate section 7(a)(2) of the Act. (b) Burden of proof. (c) Negative finding. (d) Positive finding. (e) Secretary of State opinion. § 452.04 Secretary's report. (a) Contents of the report. (1) Discussing the availability of reasonable 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 concerning whether the proposed action is of national or regional significance; (5) Summarizing the evidence concerning whether the proposed action is in the public interest; (6) Discussing appropriate and reasonable mitigation and enhancement measures which should be considered by the Committee in granting an exemption; and (7) Discussing whether the Federal agency and permit or license applicant, if any, have refrained from making any irreversible or irretrievable commitment of resources. (b) Preparation of the report. § 452.05 Hearings. (a) Hearings. (2) The Secretary shall designate an Administrative Law Judge to conduct the hearing. The Secretary shall assign technical staff to assist the Administrative 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 applicant 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. (i) The possibility of obtaining stipulations, admissions of fact or law and agreement to the introduction of documents; (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 Administrative Law Judge shall issue a statement of the actions taken at the conference and the agreements made. Such statement shall control the subsequent course of the hearing unless modified for good cause by a subsequent statement. (c) Notice of hearings. Federal Register (d) Conduct of hearings Admissibility of evidence. (2) Motions, objections, rebuttal and cross-examination. (i) Objections. (ii) Offers of proof. (iii) Motions. (e) Applicant responsibility. (f) Open meetings and record. (g) Requests for information, subpoenas. (h) Information collection. et seq. § 452.06 Parties and intervenors. (a) Parties. (b) Intervenors. (2) The Administrative Law Judge shall grant leave to intervene if he determines that an intervenor's participation would contribute to the fair determination of issues. In making this determination, the Administrative Law Judge may consider whether an intervenor 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. (2) The Secretary shall not allow an agency employee or agent who participated in the endangered species consultation at issue or a factually related matter to participate or advise in a determination under this part except as a witness or counsel in public proceedings. (b) Ex parte communications. § 452.08 Submission of Secretary's report. (a) Upon closing of the record, the Administrative Law Judge shall certify the record and transmit it to the Secretary for preparation of the Secretary's report which shall be based on the record. The Secretary may direct the Administrative Law Judge to reopen the record and obtain additional information if he determines that such action is necessary. (b) The Secretary shall submit his report 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 proceedings. (a) When the Secretary is considering two or more related exemption applications, 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 Interior and Commerce are considering two or more related exemption applications, they may consider them jointly and prepare a joint report if doing so would expedite or simplify consideration of the issues.

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