[Code of Federal Regulations]
[Title 50, Volume 7]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR402.46]

[Page 831-832]
 
                    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 
 
    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 832]]

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).