[Federal Register Volume 84, Number 164 (Friday, August 23, 2019)]
[Notices]
[Pages 44297-44299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18132]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2019-0478; FRL 9998-70-OGC]


Proposed Stipulated Partial Settlement Agreement, Endangered 
Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulated partial settlement agreement; 
request for public comment.

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SUMMARY: In accordance with the EPA Administrator's October 16, 2017, 
Directive Promoting Transparency and Public Participation in Consent 
Decrees and Settlement Agreements, notice is

[[Page 44298]]

hereby given of a proposed stipulated partial settlement agreement in 
the United States District Court for the Northern District of 
California in the case of Center for Biological Diversity et. al., v. 
United States Environmental Protection Agency et al., No. 3:11 cv 0293 
(N.D.Ca.). Plaintiffs filed the original case on January 20, 2011, 
asserting a single claim against EPA for allegedly violating section 
7(a)(2) of the Endangered Species Act (ESA) by failing to initiate and 
reinitiate consultation with the Services with respect to its ongoing 
oversight of 382 pesticide active ingredients. After several motions to 
narrow the case and an appeal to the Ninth Circuit Court of Appeals, 
the plaintiffs filed their fourth amended complaint on June 29, 2018 
for failure to initiate ESA section 7(a)(2) consultation for certain 
pesticide products containing 35 pesticide active ingredients. After 
several settlement discussions, the parties reached a partial agreement 
in this case. The parties are proposing to reach a settlement in the 
form of a stipulated partial settlement agreement. Among other 
provisions, this agreement would set a February 14, 2021, deadline for 
EPA to complete ESA section 7(a)(2) effects determination for carbaryl 
and methomyl, and, as appropriate, request initiation of any ESA 
section 7(a)(2) consultations with the National Marine Fisheries 
Service (NMFS) and/or the United States Fish and Wildlife Service 
(USFWS) that EPA may determine to be necessary as a result of those 
effects determinations. Additional deadlines would include August 14, 
2021, for atrazine and simazine, and August 14, 2024, for brodifacoum, 
bromadiolone, warfarin, and zinc phosphide for EPA to complete effects 
determinations, and, as appropriate, request initiation of any ESA 
consultations with NMFS and/or USFWS. The stipulated partial settlement 
agreement would also include a meet and confer deadline of August 30, 
2021, for all parties to discuss possible resolution of the remaining 
issues in this case.

DATES: Written comments on the proposed stipulated partial settlement 
agreement must be received by September 23, 2019.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2019-0478 online at www.regulations.gov (EPA's preferred method). 
For comments submitted at www.regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
generally will not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Knorr, Pesticides and Toxic 
Substances Law Office (2333A), Office of General Counsel, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone: (202) 564-5631; email address: 
knorr.michele@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Stipulated Settlement 
Agreement

    On January 20, 2011, Plaintiffs (non-governmental environmental 
organizations) filed a complaint in the United States District Court in 
the Northern District of California asserting a single claim against 
EPA for allegedly violating section 7(a)(2) of the ESA by failing to 
initiate and reinitiate consultation with the Services with respect to 
382 pesticide active ingredients. After motions practice and an appeal 
to the Ninth Circuit Court of Appeals, the plaintiffs filed their 
fourth amended complaint on June 29, 2018 for failure to initiate 
consultation under ESA section 7(a)(2) for certain pesticide products 
containing 35 pesticide active ingredients. After several settlement 
discussions, the parties reached a partial agreement in this case. 
Specifically, Paragraph 1.a. of the proposed stipulated partial 
settlement provides that EPA would agree to complete ESA section 
7(a)(2) effects determinations, compiled into a biological evaluation, 
by February 14, 2021, for carbaryl and methomyl, and, as appropriate, 
request initiation of any ESA section 7(a)(2) consultations with the 
NMFS and/or the USFWS that EPA may determine to be necessary as a 
result of those effects determinations. Additional deadlines for 
completing ESA section 7(a)(2) effects determinations, compiled into a 
biological evaluation, included in Paragraphs 2.a. and 3.a., 
respectively, would be August 14, 2021, for atrazine and simazine, and 
August 14, 2024, for brodifacoum, bromadiolone, warfarin, and zinc 
phosphide, and, as appropriate, request initiation of any ESA 
consultations with NMFS and/or USFWS.
    The agreement also includes statements of EPA's intent to take 
certain actions, in addition to the deadlines associated with specific 
biological evaluations, including: (1) To complete draft biological 
evaluations no later than one year prior to the deadline for the final 
biological evaluations, as well to provide notice and a 60-day 
opportunity for public comment on any such draft, (2) consistent with 
current practice, EPA would, within 30 business days of receipt from 
the USFWS of any draft biological opinions on the effects of 
chlorpyrifos and diazinon, make the draft available to the public for a 
60-day comment period, (3) consistent with current practice, conduct 
nationwide-scale effects determinations, and (4) to complete biological 
evaluations for glyphosate and propazine on the same schedule as 
simazine and atrazine.
    The stipulated partial settlement also includes provisions that 
would require EPA to meet specific milestones connected to the 
deadlines in Paragraphs 1.a, 2.a, and 3.a. These provisions included in 
Paragraphs 1.b., 2.b., and 3.b would include: (1) No later than 90 days 
prior to EPA's commitment to complete draft biological evaluations, EPA 
would provide a status report to the Court and other parties on its 
progress toward completing these drafts; and (2) EPA would provide a 
status report to the Court and the parties 90 days prior to the 
deadline to complete the final biological evaluations. Additionally, 
Paragraphs 1.c., 2.c., and 3.c. would include provisions for modifying 
the final biological evaluation deadlines. The stipulated partial 
settlement agreement would also include a meet and confer deadline of 
August 30, 2021 for all parties to discuss resolving the remaining 
issues in this case.
    For a period of thirty (30) days following the date of publication 
of this notice, the Agency will accept written comments relating to the 
proposed stipulated partial settlement from persons who are not named 
as parties to the litigation in question. If so requested, EPA will 
also consider holding a public hearing on whether to

[[Page 44299]]

agree to the proposed joint stipulation and stipulated notice of 
dismissal. EPA or the Department of Justice may withdraw or withhold 
consent to the proposed stipulated partial settlement if the comments 
disclose facts or considerations that indicate that such consent is 
inappropriate, improper, inadequate, or inconsistent with the 
requirements of the ESA or FIFRA. Unless EPA or the Department of 
Justice determines that consent should be withdrawn, the terms of the 
proposed stipulation and stipulated notice of dismissal will be 
affirmed.

II. Additional Information About Commenting on the Proposed Stipulation 
and Stipulated Notice of Dismissal

A. How can I get a copy of the proposed stipulated partial settlement 
agreement?

    The official public docket for this action (identified by EPA-HQ-
OGC-2019-0478) contains a copy of the proposed stipulated partial 
settlement agreement. The official public docket is available for 
public viewing at the Office of Environmental Information (OEI) Docket 
in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. 
NW, Washington, DC. The EPA Docket Center Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OEI Docket is (202) 566-
1752.
    An electronic version of the public docket is available on EPA's 
website at [Insert URL] and through www.regulations.gov. You may use 
www.regulations.gov to submit or view public comments, access the index 
listing of the contents of the official public docket, and access those 
documents in the public docket that are available electronically. Once 
in the system, key in the appropriate docket identification number then 
select ``search.'' It is important to note that EPA's policy is that 
public comments, whether submitted electronically or in paper, will be 
made available for public viewing online at www.regulations.gov without 
change, unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. Information 
claimed as CBI and other information whose disclosure is restricted by 
statute is not included in the official public docket or in the 
electronic public docket.
    EPA's policy is that copyrighted material, including copyrighted 
material contained in a public comment, will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the EPA Docket Center.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section. 
Please ensure that your comments are submitted within the specified 
comment period.
    If you submit an electronic comment, EPA recommends that you 
include your name, mailing address, and an email address or other 
contact information in the body of your comment and with any disk or CD 
ROM you submit. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. Any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    Use of the www.regulations.gov website to submit comments to EPA 
electronically is EPA's preferred method for receiving comments. The 
electronic public docket system is an ``anonymous access'' system, 
which means EPA will not know your identity, email address, or other 
contact information unless you provide it in the body of your comment. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email address is automatically captured and 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.

    Dated: August 13, 2019.
Joseph E. Cole,
Associate General Counsel.
[FR Doc. 2019-18132 Filed 8-22-19; 8:45 am]
 BILLING CODE 6560-50-P


