The EPA Office of Pesticide Programs has imposed specific data requirements for endangered species information.  The Agency has done so in a variety of ways: express conditions on registrations and applicants under FIFRA, data call-ins as part of the reregistration process, and other communications with registrants and applicants.  See also, PR Notice 2000-2. The Agency has made clear in recent months, including through the preamble of the proposed final rule revising 40CFR Part 158 data requirements and individual requests to specific registrants, that endangered species requirements are becoming commonplace.  FESTF data are now a key source of compliance with these requirements.

FESTF has largely completed its work and has submitted to EPA its data, including its innovative information management system (IMS), which is now being used by FESTF members and EPA for endangered species assessments.  As such, the Task Force has moved into a phase of independently assessing the registrations and data requirements of non-members.  FESTF is implementing an active program of enforcing the data compensation rights granted to it and its members under FIFRA.

Under the circumstances, and in the interest of resolving potential data compensation disputes and avoiding potential litigation, FESTF has developed three options for a non-member to resolve data compensation obligations to the Task Force.  The methods are (1) full membership; (2) access to the IMS (and supporting data) through use (at the non-member's expense) of consultants trained and approved by FESTF; and (3) data citation only.

If your company is interested in reaching an agreement with FESTF on one of these three bases, the next step would be for FESTF to arrange a meeting or other suitable conference involving appropriate individuals from your company with authority to enter into a legally-binding data compensation agreement.  We intend to move expeditiously in such negotiations.  If you wish to explore this with FESTF, contact us.

Task Force Information 

FESTF: Summary of Levels of Data Reliance
(updated July 2006)

Level One: Full Membership
Full membership in FESTF may be obtained under the terms of the FESTF LLC agreement, which calculates the cost of membership based upon the total of all assessments made per Member adjusted by accumulated interest and a risk factor.

Member Rights:

1. Active participation in the conceptualization, design, submission and implementation of data to address EPA FIFRA endangered species data requirements.

2. Complete access to and use of all FESTF work products, including the IMS and NatureServe data, for any purpose allowed in the Task Force’s underlying agreements, including complete and direct access to the FESTF submitted FIFRA Data Matrix.

3. Voting rights on all actions requiring member approval.Representation on the FESTF Administrative and Technical Committees.

4. Ownership rights to all FESTF-generated data.

5. Access to NatureServe data that has been licensed to FESTF and its Members.

6. Complete access to www.FESTF.org, an archive of FESTF and key endangered species documents.

7. Input to the National Council for Air and Stream Improvement’s (NCASI) evaluation of biodiversity data.

8. Access and contribution to NCASI reports on NatureServe data.

9. An equal share in all incoming revenue from data compensation agreements reached with non-members.

Member Obligations:

1. Bears responsibility for all Task Force management and operations, including NatureServe licensing obligations and bears all risks associated with a data development program to meet governmental regulatory requirements. 

2. Accountability for the performance and goals of the LLC.

3. Responsible for data development.

4. Responsible for submission of FESTF data to EPA and obtaining acceptance by EPA including further supporting work as the Members determine to be necessary.

5. Liable to respond to any claims, assessments or suits brought against the Task Force.

6. Payment of all assessments as the membership approves them.

7. Active defense of FESTF data in data compensation matters.

Level Two: Use of the IMS and NatureServe data for a Non-Member Company’s Assessments

Level Two Rights and Benefits:

1. Access to the IMS and NatureServe data through an FESTF-certified agent for the company’s endangered species assessment needs.

2. Right to cite to and rely upon all data submitted by FESTF to EPA.

3. Reliance on the IMS and NatureServe data when they are used for any endangered species assessment completed by another company.

4. Provides expedient conduct of an endangered species assessment by allowing reliance on accumulated data and system use experience.

5. Allows use of all knowledge and risk mitigation decisions accumulated in and retrieved by the FESTF IMS for the benefit of the company’s product assessment.

6. Removes the hurdle of collecting public data manually and repeatedly under an approach that may vary from the standard EPA has established through use of the IMS and NatureServe data.

7. Gives added assurance that the investment in an endangered species assessment will be acceptable to EPA.

8. Avoids obligations and risks incurred by Members as set forth above in Level One.

9. Avoids litigation costs and risks of resolving data compensation obligations.

Level Two Obligations:

1. Independent conduct and support of active ingredient assessments.

2. Payment to FESTF for access to and reliance on the IMS and NatureServe data. 

3. Adherence to the data use and confidentiality terms of the FESTF/NatureServe licensing agreement.

4. [Note: Access through the Level Two option does not allow for sharing in revenues from other data compensation settlements. This option is only available to Level One members.]

Level Three: Relying upon the IMS for a Completed and Submitted Assessment

Level Three Rights and Benefits:

1. The right only to cite to and rely upon data, including the IMS and NatureServe data, submitted by FESTF to EPA.  

2. Avoids obligations and risks incurred by Members as set forth above in Level One.

Level Three Obligations:

1. Payment to FESTF for data reliance.

2. [Note: Access through the Level Two option does not allow for sharing in revenues from other data compensation settlements. This option is only available to Level One members.]