out in critical habitat without causing such diminution.

"Director or Regional Director" means the Director or one of the Regional Directors of the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, for purposes of consultation.

"Federal agency" means each authority of the Government of the United States except for the Congress, the Courts of the United States, the Governments of the Territories, Commonwealths, or possessions of the United States, or the Government of the District of Columbia.

"Jeopardize the continued existence of" means to engage in an activity or program which reasonably would be expected to reduce the reproduction, numbers, or distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that species in the wild. The level of reduction necessary to constitute "jeopardy" would be expected to vary among listed species.

"Listed species" means any species of fish, wildlife, or plant which is designated as endangered or threatened under the Act.

"Recovery" means improvement in the status of listed species to the point at which listing is no longer required. § 402.03 Applicability to previously initiated actions.

Section 7 applies to all activities or programs where Federal involvement or control remains which in itself could jeopardize the continued existence of a listed species or modify or destroy its critical habitat.

agency shall initiate the formal consultation process and not the non-Federal entity.

(2) If a Federal agency decides that its activities or programs will not affect listed species or their habitat, consultation shall not be initiated unless requested by the Service.

(3) When a Federal agency identifies activities or programs that may affect listed species or their habitat, the agency shall convey a written request for consultation with available information to: the Regional Director for the Region where the activity or program is or will be carried out; or to the Director or Regional Director for the Region where the Federal agency is headquartered, if more than one Region is involved; or to the Director if foreign countries or the high seas are involved. In addition, if foreign countries or the high seas are involved, a copy of the request for consultation and all subsequent correspondence shall be forwarded to the Secretary of State c/o the Director, Office of Environmental Affairs. Any request for consultation may encompass, subject to the approval of the Director or Regional Director, a number of similar individual activities within a given geographical area, administrative unit, or segment of a comprehensive plan. Until consultation has been completed and a biological opinion issued, good faith consultation shall preclude a Federal agency from making an irreversible or irretrievable commitment of resources which would foreclose the consideration of modifications or alternatives to the identified activity or program.

(4) In addition, the Director or Regional Director will request initiation of consultation if he identifies any activity or program of a Federal agency that has not received prior consultation and that may affect listed species or their habitat.

(5) Informal consultation may be initiated at the field level between the Service and the Federal agencies or their authorized representatives. Such informal consultation is supplemental to, and not a substitute for, the formal consultation process set forth in this part.

(b) Form. (1) Consultation under section 7 may be consolidated with interagency cooperation required by other statutes, such as the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) or the National Environmental Policy Act (42 U.S.C. 4321 et seq.). The satisfaction of the requirements of these other statutes, however, does not in itself relieve a Federal agency of its obligation to comply with the consultation procedures set forth in this part.

(2) When particular programs or activities involve more than one Federal agency, these agencies may, upon notification of the Director or Regional Director, fulfill their consultation responsibilities through a single lead agency. Factors relevant in determining an appropriate lead agency include the time sequence in which the agencies become involved, the magnitude of their respective involvement and their relative expertise with respect to the environmental effects of the activity or program.

(c) Assistance from the Service. It is the primary responsibility of each Federal agency requesting consultation to conduct the appropriate studies and to provide the biological information necessary for an adequate review of the effect an identified activity or program has upon listed species or their habitat. To the extent it is available, the Service will upon request provide all relevant data and reports, personnel, and recommendations for additional studies or surveys, but the Service is not obligated to fund any such additional studies or surveys.

(d) Assistance from other sources. Federal agencies may seek assistance from any source to obtain the biological information necessary for a review of the effect an activity or program has upon listed species or their habitat. Such assistance may include, but is not limited to, that obtained by contract or required by regulations of the Federal agency. Although it may authorize a non-Federal representative to participate in the consultation process pursuant to approved counterpart regulations, the ultimate responsibility for compliance with the procedures of this section remains with the Feder

al agency and cannot be delegated by it.

(e) Threshold examination. Upon receipt of a written request for consultation, the Director or Regional Director will conduct a threshold examination of the identified activity or program. A threshold examination will include a review of available information and may include an on-site inspection of the area.

(1) If, in the opinion of the Director, an identified activity or program will promote the conservation of listed species, the appropriate Federal agency shall be notified in writing within 60 days after consultation is initiated, and additional section 7 consultation shall be unnecessary. The Service, to the extent feasible, will assist in carrying out such programs if requested by the Federal agency.

(2) If an identified activity or program is not specifically for the conservation of listed species, but the Director or Regional Director concludes from the threshold examination that the activity or program is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its critical habitat, the appropriate Federal agency shall be notified in writing within 60 days after consultation is initiated and further section 7 consultation shall be unnecessary.

(3) If an identified activity or program is not specifically for the conservation of listed species and the Director or Regional Director concludes from the treshold examination that the activity or program is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its critical habitat, the appropriate Federal agency shall be notified in writing within 60 days after consultation is initiated and further section 7 consultation shall be unnecessary.

(4) The biological opinions issued pursuant to paragraphs (e)(1), (2) and (3) of this section shall be accompanied by a statement of the facts and documentation on which they are based and may include recommendations for modifications in the identified activity or program which would enhance the conservation and protec

tion of a listed species or its critical habitat. Such opinions will be released pursuant to the Freedom of Information Act.

(f) Further consultation. If the Director or Regional Director determines as a result of the threshold examination that insufficient information exists to conclude that an identified activity or program is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its critical habitat, the Federal agency will be so notified in writing within 60 days after formal consultation is initiated. The Federal agency, with assistance as feasible from the Service and other sources of expertise, shall then obtain additional information and conduct, as appropriate, biological surveys or studies to determine how the activity or program may affect listed species or their critical habitat. Within 60 days of receipt of adequate information and documentation, unless special circumstances require negotiation of a longer period, the Service will end consultation by issuing a biological opinion pursuant to the provisions of paragraphs (e) (1), (2), (3), and (4) of this section, as appropriate.

(g) Responsibilities after consultation. Upon receipt and consideration of the biological opinion and recommendations of the Service, it is the responsibility of the Federal agency to determine whether to proceed with the activity or program as planned in light of its section 7 obligations. Where the consultation process has been consolidated with interagency cooperation required by other statutes such as the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) or the National Environmental Policy Act (42 U.S.C. 4321 et seq.), the final biological opinion and recommendations of the Service shall be stated in the documents required by those statutes.

(h) Reinitiation. Consultation shall be reinitiated by the Service or by the Federal agency if: (1) New information reveals impacts of the identified activity or program that may affect listed species or their habitats;

(2) The identified activity or program is subsequently modified, wheth

er as a result of a biological opinion issued after consultation or not; or

(3) A new species is listed that may be affected by the identified activity or program.

(i) Counterpart regulations. The consultation procedures set forth in this section may be superseded for a particular Federal agency by joint counterpart regulations drafted by that agency and the Fish and Wildlife Service and the National Marine Fisheries Service. Such counterpart regulations shall be published in the FEDERAL REGISTER as proposed and final rulemakings and shall provide for a minimum 60-day period for public comment.

(a) The definitions of terms in 50 CFR 402.02 shall apply to this Part 424, except as otherwise stated.

(b) "Conservation," "conserve," and “conserving” mean to use and the use of all methods and procedures which are necessary to bring any Endangered species or Threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

(c) "Critical Habitat" means (1) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (i) essential to the conservation of the species and (ii) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination by the Director that such areas are essential for the conservation of the species.

(d) "Director" means the Director of the U.S. Fish and Wildlife Service, Department of Interior, or the Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Department of Commerce, as appropriate.

(e) "Endangered species" means a species which is in danger of extinction throughout all or a significant portion of its range.

(f) "List" or "lists" means the lists of Endangered or Threatened wildlife and plants found at 50 CFR 17.11 or 17.12.

(g) "Plant" means any member of the plant kingdom, including seeds, roots, and other parts thereof.

(h) "Public hearing" means an informal hearing to provide the public with the opportunity to give their comments on a proposal to designate Critical Habitat and, if appropriate, the accompanying proposal to list a species.

(i) "Public meeting" means an informal meeting between Service representatives and the public that permits an exchange of information on a proposed rule.

(j) "Special management considerations or protection” means any methods or procedures useful in protecting physical and biological features for the conservation of listed species.

(k) "Species" includes any species or subspecies of fish or wildlife or plant, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. Excluded are those species of the Class Insecta determined by the Director to constitute a pest whose protection under the provisions of the Act would present an overwhelming and overriding risk to man.

(1) "Threatened species" means any species which is likely to become an Endangered species within the foreseeable future throughout all or a significant portion of its range.

(m) "Wildlife" or "fish and wildlife" means any member of the Animal Kingdom, including without limitation, any vertebrate, mollusk, crustacean, arthropod or other invertebrate and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

[45 FR 13022, Feb. 27, 1980; 45 FR 64195, Sept. 29, 1980]

Subpart B-Revision of the Lists

§ 424.10 General.

The Director may add a species to the lists or designate Critical Habitat, delete a species or Critical Habitat, change the listed status of a species, change the boundary of an area designated as Critical Habitat, or adopt or modify special rules (see 50 CFR 17.40-17.48 and Parts 222 and 227) applicable for an Endangered or Threatened species only in accordance with the procedures of this part.

§ 424.11 Factors for listing, reclassifying, or removing species.

(a) Any species or taxonomic group of species (e.g., genus, subgenus) as defined in § 424.02 is eligible for listing under the Act. A taxon of higher rank than species will be listed only if all component species are individually Endangered or Threatened. In determining whether a particular taxon or population is a species for the purposes of the Act, the Director shall rely on standard taxonomic distinctions and the biological expertise of the Service and the scientific community concerned with that group of taxa.

(b) A species shall be listed if the Director determines on the basis of the best scientific and commercial data available to him after conducting a review of the species' status that the species is Endangered or Threatened because of any one or a combination of the following factors:

(1) The present or threatened destruction, modification, or curtailment of its habitat or range;

(2) Utilization for commerical, sporting, scientific, or educational purposes at levels that detrimentally affect it; (3) Disease or predation;

(4) Absence of regulatory mechanisms adequate to prevent the decline of a species or degradation of its habitat; and

(5) Other natural or manmade factors affecting its continued existence.

(c) The fact that a species of fish, wildlife, or plant is protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora or similar international agreement on such species may constitute evidence that the species is En

dangered or Threatened. The weight of the evidence will vary depending on the international agreement in question and the criteria pursuant to which the species was listed under the agreement. The Director shall give full consideration to any species protected by such an international agreement to determine whether the species is Endangered or Threatened.

(d) The factors for removing a species from the list are those in paragraph (b) of this section. The data to support such removal must be the best scientific and commercial data available to the Director to substantiate that the species is neither Endangered nor Threatened for one or more of the following reasons:

(1) Extinction. Unless each individual of the listed species was previously identified and located, a sufficient period of time must be allowed before delisting to clearly insure that the species is in fact extinct.

(2) Recovery of the species. The principal goal of the Services is to return listed species to a point at which protection under the Act is no longer required. A species may be delisted if the evidence shows that it is no longer Endangered or Threatened.

(3) Original data for classification in error. Subsequent investigations may produce data that show that the best scientific or commercial data available at the time that the species was listed were in error.

§ 424.12 Criteria for designating Critical Habitat.

(a) Critical Habitat shall be specified to the maximum extent prudent at the time a species is proposed for addition to the list. If the Director determines that the designation of Critical Habitat is not prudent, he will state the reasons for such determination in the proposed and final rules listing a species. Conditions under which a designation of Critical Habitat is not prudent include, but are not limited to, the following:

(1) When the species is threatened by taking or other human activity and identification of Critical Habitat can be expected to increase the degree of such threat to the species, or