[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Notices]
[Pages 57665-57667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22582]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2021-0674; FRL-9130-01-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 Environmental Protection Agency (EPA) 
Administrator's October 16, 2017, Directive Promoting Transparency and 
Public Participation in Consent Decrees and Settlement Agreements, 
notice is hereby given of a proposed stipulated partial settlement 
agreement that resolves part of the Center for Environmental Health, et 
al., v. Wheeler, et al., case in the United States District Court for 
the Northern District of California (4:18-cv-03197) that alleges that 
EPA and the United States Fish and Wildlife (FWS) failed to comply with 
certain procedural and substantive duties under the Endangered Species 
Act (ESA). Defendant-Intervenor joins this stipulated partial 
settlement agreement.

DATES: Written comments on the proposed stipulated partial settlement 
agreement must be received by November 17, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2021-0674, online at https://www.regulations.gov (EPA's preferred 
method). Follow the online instructions for submitting comments.

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    Instructions: All submissions received must include the Docket ID 
number for this action. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Additional Information 
about Commenting on the Proposed Settlement Agreement'' heading under 
the SUPPLEMENTARY INFORMATION section of this document. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Docket Center and Reading Room are closed to the public, with limited 
exceptions, to reduce the risk of transmitting COVID-19. Our Docket 
Center staff will continue to provide remote customer service via 
email, phone, and webform. We encourage the public to submit comments 
via https://www.regulations.gov, as there may be a delay in processing 
mail and faxes. Hand-deliveries and couriers may be received by 
scheduled appointment only. For further information on EPA Docket 
Center services and the current status, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the CDC, local area health departments, and our federal partners 
so that we can respond rapidly as conditions change regarding COVID-19.

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

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Settlement Agreement

    The official public docket for this action (identified by Docket ID 
No. EPA-HQ-OGC-2021-0674) contains a copy of the proposed settlement 
agreement.
    The electronic version of the public docket for this action 
contains a copy of the proposed settlement agreement and is available 
through https://www.regulations.gov. You may use https://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.''

II. Additional Information About the Proposed Settlement Agreement

    Prior to this lawsuit being filed, on January 18, 2017, EPA 
submitted to FWS a nationwide biological evaluation regarding the 
effects of malathion and two other active ingredients on species listed 
as threatened or endangered under the ESA, 16 U.S.C. 1531 et seq., and 
their designated critical habitats and requested initiation of 
consultation pursuant to ESA section 7(a)(2), 16 U.S.C. 1536(a)(2) (the 
Malathion Consultation). The Malathion Consultation has been ongoing 
since that date.
    Plaintiffs filed their original case in May 2018. The Plaintiffs 
amended the complaint on July 25, 2018, and on November 27, 2018 
alleging that: (1) EPA violated its procedural duty under ESA section 
7(a)(2) to complete consultation and its substantive duty under ESA 
section 7(a)(2) to avoid jeopardy with respect to 21 malathion-
containing pesticide product registrations under the Federal 
Insecticide Fungicide, and Rodenticide Act (FIFRA), and the FWS 
violated its procedural duty to complete consultation under ESA section 
7(a)(2); (2) these failures constitute unlawfully withheld or 
unreasonably delayed agency action in violation of Section 706(1) of 
the Administrative Procedure Act, 5 U.S.C. 706(1); and (3) EPA failed 
to comply with ESA section 7(d) when it ``maintained the registrations 
of these same pesticide products and continued to reregister and 
register pesticide products containing malathion.''
    Unless one of the contingencies set forth in the proposed 
stipulated partial settlement agreement occurs (which may result in an 
extension of time), FWS will issue its Final Biological Opinion and 
conclude the Malathion Consultation no later than February 28, 2022. 
Court approval of this stipulated partial settlement agreement would 
result in the dismissal with prejudice of portions of the claims in 
Count 1 and Count 2 against Federal Defendants for violation of their 
ESA section 7(a)(2) procedural duties to complete the Final Biological 
Opinion. This agreement only resolves EPA's procedural duties under the 
ESA section 7(a)(2); claims related to EPA's substantive ESA section 
7(a)(2) duties are not covered. Additionally, claims against EPA for 
its alleged failure to comply with the ESA section 7(d) requirements 
are not covered by this agreement. Defendant-Intervenor joins this 
stipulated partial settlement agreement.
    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 agreement from persons who are 
not named as parties to the litigation in question. EPA or the 
Department of Justice may withdraw or withhold consent to the proposed 
stipulated partial settlement agreement 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.

III. Additional Information About Commenting on the Proposed Settlement 
Agreement

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-
0674, via https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from this docket. EPA may publish any comment 
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov 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. EPA will generally 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, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. For additional information about submitting information 
identified as CBI, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section of this document. Note that written 
comments containing CBI and submitted by mail may be delayed and 
deliveries or couriers will be received by scheduled appointment only.
    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. This ensures that you 
can be identified as the

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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 https://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.
    Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 
comments.

Christopher E. Kaczmarek,
Acting Associate General Counsel.
[FR Doc. 2021-22582 Filed 10-15-21; 8:45 am]
BILLING CODE 6560-50-P


