C.F.R. » Title 50 » CHAPTER IV—JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR AND NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE); ENDANGERED SPECIES COMMITTEE REGULATIONS › SUBCHAPTER A › PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED › Subpart A—General

50 C.F.R. § 402.08

Designation of non-Federal representative

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A Federal agency may designate a non-Federal representative to conduct informal consultation or prepare a biological assessment by giving written notice to the Director of such designation. If a permit or license applicant is involved and is not the designated non-Federal representative, then the applicant and Federal agency must agree on the choice of the designated non-Federal representative. If a biological assessment is prepared by the designated non-Federal representative, the Federal agency shall furnish guidance and supervision and shall independently review and evaluate the scope and contents of the biological assessment. The ultimate responsibility for compliance with section 7 remains with the Federal agency.

Notes of Decisions
Cited in 3 cases, 1994–2019 · leading case: Silver v. Babbitt, 166 F.R.D. 418 (D. Ariz. 1994).
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Silver v. Babbitt, 166 F.R.D. 418 (D. Ariz. 1994). “Has-sell has been designated pursuant to 50 C.F.R. § 402.08 by the United States Department of Agriculture Forest Service, Southwestern Region, to act on behalf of the Forest Service as a non-federal representative in the informal consultation process with the FWS under Section…”
W. Watersheds Proj. v. Matejko, 468 F.3d 1099 (9th Cir. 2006). “Such discretion meant that section 7(a)(2) applied under 50 C.F.R. § 402.08 (“Section 7 and the requirements of this Part apply to all actions in which there is discretionary Federal involvement or control”).”
Friends Earth v. U.S. Army Corps of Eng'rs, 374 F. Supp. 3d 1045 (W.D. Wash. 2019). “The Corps does not argue that it formally designated the consultant to write the biological evaluation pursuant to 50 C.F.R. § 402.08 , and this Order does not reach the question of whether documents prepared by a formal designee fall within the exemption.”
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