[Code of Federal Regulations]

[Title 50, Volume 7]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 50CFR402.46]



[Page 757-758]

 

                    TITLE 50--WILDLIFE AND FISHERIES

 

CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, 

 

PART 402_INTERAGENCY COOPERATION_ENDANGERED SPECIES ACT OF 1973, AS 

AMENDED--Table of Contents

 

    Subpart D_Counterpart Regulations Governing Actions by the U.S. 

Environmental Protection Agency Under the Federal Insecticide, Fungicide 

                           and Rodenticide Act

 

Sec. 402.46  Optional formal consultation procedure for FIFRA actions.



    (a) Initiation of consultation. EPA may initiate consultation on a 

FIFRA action under this section by delivering to the Service a written 

request for consultation. The written request shall be accompanied by an 

effects determination as defined in Sec. 402.40(b) and a list or 

summary of all references and data relied upon in the determination. All 

such references and data shall be made available to the Service on 

request and shall constitute part of the Service's administrative record 

for the consultation. The time for conclusion of the consultation under 

section 7(b)(1) of the Act is calculated from the date the Service 

receives the written request from EPA. Any subsequent interchanges 

regarding EPA's submission, including interchanges about the 

completeness of the effects determination, shall occur during 

consultation and do not extend the time for conclusion of the 

consultation unless EPA withdraws the request for consultation.

    (b) Additional information determination. For an effects 

determination prepared without advance coordination under Sec. 402.44, 

the Service may determine that additional available information would 

provide a better information base for the effects determination, in 

which case the Service Director shall notify the EPA Administrator 

within 45 days of the date the Service receives the effects 

determination. The notification shall describe such additional 

information in detail, and shall identify a means for obtaining that 

information within the time period available for consultation. EPA shall 

provide a copy of the Service Director's notification to any applicant. 

EPA may thereafter revise its effects determination, and may resubmit 

the revised effects determination to the Service. If EPA advises the 

Service it will not resubmit a revised effects determination to the 

Service, its initiation of consultation on the effects determination is 

deemed withdrawn.

    (c) Service responsibilities. (1) Within the later of 90 days of the 

date the Service receives EPA's written request for consultation or 45 

days of the date the Service receives an effects determination 

resubmitted under paragraph (b) of this section, and consistent with 

section 7(b)(1) of the Act, the Service shall take one of the following 

actions:

    (i) If the Service finds that the effects determination contains the 

information required by Sec. 402.40(b) and satisfies the requirements 

of section 7(b)(4) of the Act, and the Service concludes that the FIFRA 

action that is the subject of the consultation complies with section 

7(a)(2) of the Act, the Service will issue a written statement adopting 

the effects determination; or

    (ii) The Service will provide EPA a draft of a written statement 

modifying the effects determination, which shall meet the requirements 

of Sec. 402.14(i), and as modified adopting the effects determination, 

and shall provide a detailed explanation of the scientific and 

commercial data and rationale supporting any modification it makes; or

    (iii) The Service will provide EPA a draft of a biological opinion 

finding that the FIFRA action is likely to jeopardize the continued 

existence of a listed species or result in the destruction or adverse 

modification of critical habitat, and describing any reasonable and 

prudent alternatives if available.

    (2) If the Service acts under paragraphs (c)(1)(ii) or (c)(1)(iii) 

of this section, EPA shall, on request from an applicant, provide the 

applicant a copy of the draft written statement or draft biological 

opinion received from the Service. The Service shall at the request of 

EPA or an applicant discuss with EPA and the applicant the Service's 

review and evaluation under this section, and the basis for its 

findings. EPA and any applicant may submit written comments to the 

Service within 30 days after EPA receives the draft



[[Page 758]]



written statement or opinion from the Service unless the Service, EPA 

and any applicant agree to an extended deadline consistent with section 

7(b)(1) of the Act.

    (3) The Service will issue a final written statement or final 

biological opinion within 45 days after EPA receives the draft statement 

or opinion from the Service unless the deadline is extended under 

section 7(b)(1) of the Act.

    (d) Opinion of the Secretary. The written statement or opinion by 

the Service under paragraphs (c)(1) or (c)(3) of this section shall 

constitute the opinion of the Secretary and the incidental take 

statement, reasonable and prudent measures, and terms and conditions 

under section 7(b) of the Act.

    (e) Delegation of Authority for Service decisions. Any written 

statement modifying an effects determination or any biological opinion 

issued under this section shall be signed by the Service Director and 

such authority may not be delegated below the level of Assistant 

Director for Endangered Species (FWS) or Director of Office of Protected 

Resources (NOAA Fisheries).