[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Notices]
[Pages 32732-32733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13212]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2014-0301; FRL-9911-68]


Request for Public Comment on Proposed Stipulated Injunction 
Involving Five Pesticides and Pacific Salmonid Species Listed as 
Threatened or Endangered Under the Endangered Species Act; Notice of 
Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA is requesting comments on a proposed stipulated injunction 
that, among other things, would reinstitute streamside no-spray buffer 
zones to protect endangered or threatened Pacific salmon and steelhead 
in California, Oregon, and Washington. The stipulated injunction would 
settle litigation brought against EPA by the Northwest Center for 
Alternatives to Pesticides (NCAP) and others in U.S. District Court in 
Washington State. These buffers were originally established by the same 
court in prior litigation brought against EPA by the Washington Toxics 
Coalition (WTC) and others. Like the original buffer zones, the 
limitations in this proposed stipulated injunction would be part of a 
court order but would not be enforceable as labeling requirements under 
the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The no-
spray buffer zones will apply to the pesticides carbaryl, chlorpyrifos, 
diazinon, malathion, and methomyl. These buffers would remain in place 
until EPA implements any necessary protections for Pacific salmon and 
steelhead based on reinitiated consultations with the National Marine 
Fisheries Service (NMFS). EPA is reevaluating these pesticides in 
connection with its current FIFRA registration review process and the 
proposed stipulated injunction would reinstitute the buffers in the 
interim. EPA will evaluate all comments received during the 30-day 
public comment period to determine whether all or part of the proposed 
stipulated injunction warrants reconsideration or revision.

DATES: Comments must be received on or before July 7, 2014.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2014-0301, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket 
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 
20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Anita Pease, Environmental Fate and 
Effects Division (7507P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 305-7695; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general, and may be of 
particular interest to the parties in the NCAP v. EPA litigation, 
environmental organizations, professional and recreational fishing 
interests, other public interest groups, State regulatory partners, 
other interested Federal agencies, and pesticide registrants and 
pesticide users. Since other entities may also be interested, the 
Agency has not attempted to describe all the specific entities that may 
be interested in this action. If you have any questions regarding the 
applicability of this action to a particular entity, consult the person 
listed under FOR FURTHER INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

C. How can I get copies of this document and other related information?

    A copy of the proposed stipulated injunction is available in the 
docket under docket ID number EPA-HQ-OPP-2014-0301.

[[Page 32733]]

II. Background

A. What action is the agency taking?

    EPA is requesting comments on a proposed stipulated injunction 
that, among other things, would reinstitute streamside no-spray buffer 
zones to protect endangered and threatened Pacific salmon and steelhead 
in California, Oregon, and Washington. The stipulated injunction would 
settle litigation brought against EPA by NCAP and others in U.S. 
District Court in Washington State. Like the original buffer zones, the 
limitations in this proposed stipulated injunction would be part of a 
court order but would not be enforceable as labeling requirements under 
FIFRA. To view the interactive map displaying the areas where the 
buffer zones apply, go to http://www.epa.gov/espp/litstatus/wtc/uselimitation.htm. The no-spray buffer zones will apply to the 
pesticides carbaryl, chlorpyrifos, diazinon, malathion, and methomyl. 
These buffer zones would remain in place until EPA implements any 
necessary protections for Pacific salmon and steelhead based on 
reinitiated consultations with NMFS. EPA is reevaluating these 
pesticides in connection with its current FIFRA registration review 
process and the proposed stipulated injunction would reinstate the 
buffers in the interim.
    The no-spray buffers in the proposed stipulated injunction extend 
300 feet from salmon supporting waters for aerial applications of the 5 
pesticides and 60 feet for ground applications. These same buffers are 
currently in place for 1,3-dichloropropene (1,3-D or telone), 
bromoxynil, diflubenzuron, fenbutatin oxide, prometryn, propargite, and 
racemic metolachlor that are still subject to the original injunction 
issued in 2004 in WTC, et al. v. EPA. The buffers for those 7 
pesticides will remain in place until the completion of EPA's current 
Endangered Species Act (ESA) consultations with NMFS.
    EPA will evaluate all comments received during the 30-day public 
comment period to determine whether all or part of the proposed 
stipulated injunction warrants reconsideration or revision.

B. What is the agency's authority for taking this action?

    On November 29, 2010, NCAP and other environmental groups and 
fishing interests filed a lawsuit in the Federal District Court for the 
Western District of Washington alleging that EPA failed to comply with 
ESA sections 7 and 9 (16 U.S.C. 1536 and 1538) with regard to the 
effects of 6 EPA-registered pesticides (carbaryl, carbofuran, 
chlorpyrifos, diazinon, malathion, and methomyl) on 28 Pacific salmonid 
species that are listed as endangered or threatened under ESA (NCAP, et 
al., v. EPA, C10-01919 (W.D. Wash.)). Subsequent to the filing of the 
case, all carbofuran end-use product registrations were cancelled, 
effectively leaving only 5 pesticides at issue in the litigation. On 
February 21, 2013, in Dow Agrosciences LLC v. NMFS, 707 F.3d 462 (4th 
Cir. 2013), the U.S. Court of Appeals for the 4th Circuit vacated the 
NMFS biological opinion addressing chlorpyrifos, diazinon, and 
malathion. Following that ruling, the plaintiffs in the NCAP v. EPA 
litigation supplemented their original complaint to assert that in the 
absence of a valid biological opinion, EPA had failed to complete 
consultation on those 3 pesticides. In the fall of 2013, the 
intervenors, CropLife America and other pesticide industry and 
pesticide user groups, filed a motion to dismiss both that claim and a 
claim that EPA's registration of the pesticides was in violation of the 
``take'' provisions of ESA section 9. On January 28, 2014, Judge Zilly 
denied intervenors' motion to dismiss these claims. Subsequent to that 
ruling, the parties filed a stipulated motion to stay the NCAP v. EPA 
litigation to allow the parties to discuss the potential for 
settlement. EPA and the plaintiffs have reached a proposed agreement 
that would reinstitute the no-spray buffers originally established in 
the WTC v. EPA litigation, as explained in Unit II.A., during the 
period that EPA develops new biological evaluations for salmonid 
species (which will be completed in connection with the development of 
EPA's national FIFRA registration reviews for these pesticides). These 
buffer zones would remain in place until EPA implements any necessary 
protections for Pacific salmon and steelhead based on reinitiated 
consultations with NMFS. The agreement is embodied in the proposed 
stipulated injunction that is being made available for review and 
comment through this notice. In separate litigation, NCAP v. NMFS, C07-
1791 (W.D. Wash.), NMFS has agreed to complete any consultation EPA 
reinitiates on chlorpyrifos, diazinon, and malathion by December 2017, 
and any consultation EPA reinitiates on carbaryl and methomyl by 
December 2018. These dates are intended to correspond with EPA's FIFRA 
registration review schedule for these pesticides.
    The stipulated injunction would also require EPA to provide notice 
of the reinstitution of the no-spray buffers zones to numerous groups, 
including certified applicators, State and local governments, Federal 
agencies, user groups, extension services, and land grant universities 
in affected portions of California, Oregon, and Washington. It also 
requires EPA to provide certain information to the public and pesticide 
users through the EPA Web site, including maps that highlight the 
stream reaches where the buffer zones apply.
    With this document, EPA is opening a 30-day comment period on the 
proposed stipulated injunction. EPA will review any comments received 
during the 30-day public comment period to determine whether all or 
part of the proposed stipulated injunction warrants reconsideration or 
revision. If EPA determines that any part of the proposed stipulated 
injunction merits reconsideration or revision, EPA will contact the 
plaintiffs concerning this matter and the proposed stipulated 
injunction will not be submitted to the Court until EPA and plaintiffs 
reach agreement on any such changes. If EPA determines that the 
proposed stipulated injunction does not need to be reconsidered or 
revised, the proposed stipulated injunction will be submitted to the 
Court and shall become effective upon ratification by the Court. Once 
the stipulated injunction is ratified by the Court, EPA will post on 
its Web site at http://www.epa.gov/pesticides a notice indicating the 
stipulated injunction has been so entered.

List of Subjects

    Environmental protection, Endangered species.

    Dated: June 2, 2014.
Jack Housenger,
Director, Office of Pesticide Programs.
[FR Doc. 2014-13212 Filed 6-3-14; 4:15 pm]
BILLING CODE 6560-50-P