[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63865-63866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26903]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2018-0745; FRL-9987-80-OGC]


Proposed Joint Stipulation, Endangered Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulation; 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 hereby given of a proposed 
joint stipulation and proposed stipulated notice of dismissal in the 
United States District Court for the Northern District of California in 
the case of Ellis, et al., v. Keigwin, et al., No. 3:13-cv-01266. On 
May 8, 2017, the court issued an order on summary judgment dismissing 
claims against EPA under the Federal Insecticide, Fungicide and 
Rodenticide Act (``FIFRA''), but finding that EPA failed to perform 
duties mandated by the Endangered Species Act (``ESA'') to consult with 
the United States Fish and Wildlife Service (``FWS'') regarding 59 EPA-
approved pesticide products containing either of the insecticidal 
active ingredients clothianidin or thiamethoxam. The parties are 
proposing to reach a settlement in the form of a joint stipulation on 
the appropriate remedy for the court's finding of liability. Among 
other provisions, the joint stipulation would set a June 30, 2022, 
deadline for EPA to complete ESA effects determination for EPA's 
registration reviews of clothianidin and thiamethoxam and, as 
appropriate, request initiation of any ESA consultations with FWS that 
EPA may determine to be necessary as a result of those effects 
determinations. EPA is also taking comment on a proposed stipulated 
notice of dismissal that would be entered with the court following 
execution of the joint stipulation.

DATES: Written comments on the proposed joint stipulation and 
stipulated notice of dismissal must be received by January 11, 2019.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2018-0745 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: Mark Dyner, 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) 564-1754; email address: dyner.mark@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Joint Stipulation and 
Stipulated Notice of Dismissal

    On March 21, 2013, Plaintiffs (several beekeepers and public 
interest organizations) filed suit in the United States District Court 
for the Northern District of California. Plaintiffs brought claims 
alleging that EPA had improperly denied a petition to suspend products 
containing clothianidin and that EPA's registration of certain 
clothianidin and thiamethoxam products violated certain registration 
requirements of FIFRA, and violated section 7(a)(2) of the ESA because 
EPA had failed to consult with FWS prior to issuing the registrations. 
On May 8, 2017, the court granted EPA's summary judgment motion with 
respect to the FIFRA claims and partially granted Plaintiffs' summary 
judgment motion with respect to the ESA claims, finding that EPA had 
failed to comply with the consultation requirements of section 7(a)(2) 
with respect to 59 clothianidin and thiamethoxam products. In its 
order, the court also directed the parties to develop a briefing 
schedule for determining the appropriate remedy and, concurrently, to 
schedule a settlement conference to determine whether the parties could 
settle the remedy proceeding outside of court.
    The proposed stipulation and stipulated notice of dismissal would 
settle the remedy proceeding. Specifically, paragraph two of the 
proposed stipulation provides that EPA would agree to complete ESA 
effects determinations by June 30, 2022, for its FIFRA registration 
reviews of clothianidin and thiamethoxam and, as appropriate, request 
initiation of any necessary ESA consultations with the Services. As 
provided in paragraph three of the proposed stipulation, EPA would also 
agree to initiate informal consultation with the Services to begin an 
informal dialogue between the agencies prior to EPA completing its 
effects determinations.
    In addition, as described in paragraph one of the proposed 
stipulation, defendant-intervenors Syngenta, Bayer and Valent (the 
registrants of products containing clothianidin and thiamethoxam) have 
agreed to request that EPA voluntarily cancel the following 12 specific 
products that contain either clothianidin or thiamethoxam under section 
6(f)(1) of FIFRA:
    1. Adage Premier Seedcare, EPA Reg. No. 100-1450.
    2. Adage Deluxe, EPA Reg. No. 100-1449.
    3. Avicta Complete Corn 500, EPA Reg. No. 100-1399.
    4. TMX-MXM-FDL-TBZ FS, EPA Reg. No. 100-1426.
    5. Inovate Seed Protectant, EPA Reg. No. 59639-176.
    6. Inovate Neutral Seed Protectant Reg. No. 59639-187.
    7. Emesto Quantum, EPA Reg. No. 264-1125.
    8. Flower Rose & Shrub Care III, EPA Reg No. 72155-95.
    9. V10170 0.25G GL, EPA Reg. No. 59639-164.
    10. Meridian 0.14G, EPA Reg. No. 100-1346.
    11. Meridian 0.20G, EPA Reg. No. 100-1341.
    12. Aloft GC G Insecticide, Reg. No. 59639-214.
    For a period of thirty (30) days following the date of publication 
of this document, the Agency will accept written comments relating to 
the proposed joint stipulation and

[[Page 63866]]

stipulated notice of dismissal 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 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 
joint stipulation or proposed stipulated notice of dismissal 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 order of partial 
dismissal?

    The official public docket for this action (identified by EPA-HQ-
OGC-2018-0745) contains a copy of the proposed stipulation and proposed 
order of dismissal. 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 https://www.epa.gov/ogc/proposed-consent-decrees-and-draft-settlement-agreements 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: December 4, 2018.
Joseph E. Cole,
Associate General Counsel.
[FR Doc. 2018-26903 Filed 12-11-18; 8:45 am]
 BILLING CODE 6560-50-P