[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Notices]
[Pages 76564-76565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26311]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2020-0520; FRL 10016-54-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 in the case of Natural Resources Defense Council v. Wheeler, 
et al., in the United States District Court for the District of 
Columbia (1:17-CV-02034). The Plaintiff filed its original case on 
October 3, 2017, alleging that EPA violated Section 7(a)(2) of the 
Endangered Species Act (ESA) by failing to consult on the effects to 
listed species of certain pesticide product registrations containing 
one of three pesticide active ingredients--acetamiprid (Claim One), 
dinotefuran (Claim Two), and imidacloprid (Claim Three). EPA and 
Natural Resources Defense Council (NRDC) are proposing to reach a 
settlement in the form of a Partial Stipulated Settlement Agreement. 
Defendant-Intervenor indicated that it takes no position on this 
proposed partial agreement. Among other provisions, the proposed 
partial stipulated settlement agreement between EPA and NRDC calls for 
EPA to complete an endangered species effects determination with 
respect to imidacloprid (Claim Three) by June 30, 2022. And, as 
appropriate, EPA will initiate consultation with the National Marine 
Fisheries Service and/or the Fish and Wildlife Service (Services).

DATES: Written comments on the proposed stipulated partial settlement 
agreement must be received by December 30, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2020- 0520 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: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Stipulated Settlement 
Agreement

    On October 3, 2017, Plaintiff (a non-governmental environmental 
organization) filed a complaint in the United States District Court in 
the District of Columbia asserting three claims against EPA for 
allegedly violating section 7(a)(2) of the ESA by failing to initiate 
and reinitiate consultation with the Services. Specifically, Plaintiffs 
alleged that the EPA failed to consult on the effects to listed species 
of 95 pesticide product registrations containing one of three pesticide 
active ingredients--acetamiprid (Claim One), dinotefuran (Claim Two), 
and imidacloprid (Claim Three). On February 8, 2018, the parties in 
this case entered into a stipulation of partial dismissal of any and 
all claims related to 36 pesticide product registrations identified in 
the complaint. The Court approved this stipulation of partial 
dismissal, leaving 59 pesticide product registrations at issue. Of the 
59 product registrations remaining, 46 of them contain the active 
ingredient imidacloprid. Following the stipulated dismissal, EPA filed 
a motion to dismiss the case based on standing. After an adverse 
decision on the motion to dismiss, the parties had several settlement 
discussions. At the end of these discussions the Plaintiff and EPA 
reached a partial agreement in this case. Specifically, Paragraph 1 of 
the proposed stipulated partial settlement provides that EPA would 
agree to complete ESA section 7(a)(2) effects determination, compiled 
into a biological evaluation, for imidacloprid by June 30, 2022, and, 
as appropriate, request initiation of any ESA section 7(a)(2) 
consultation with the Services. The date for the effects determination 
aligns with the same deadline for two other neonicotinoid chemicals--
clothianidin and thiamethoxam--that were agreed upon in a settlement in 
Ellis v. Keigwin, No. 3:13-CV-1266 (N.D. Cal). Paragraph 3 would 
include provisions for modifying the final biological evaluation 
deadlines. The stipulated partial settlement agreement would also 
require that within 10 business days after the Court enters any Order 
approving this proposed agreement that the Plaintiff, EPA, and 
Intervenor-Defendant to meet and confer regarding the remaining two 
claims in the complaint concerning certain pesticide products 
containing acetamiprid or dinotefuran.
    Consistent with current practice, the agreement would also include 
statements of EPA's intent to take certain actions in addition to the 
deadlines associated with specific biological evaluations, including: 
(1) To complete a draft biological evaluation no later than one year 
prior to the deadline for the final biological evaluation, as well as 
to provide notice and a 60-day opportunity for public comment on any 
such draft, and (2) conduct the effects determination on a nationwide-
scale.
    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. 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 the Federal 
Insecticide, Fungicide, and Rodenticide Act. 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.

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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-2020-0520) contains a copy of the proposed stipulated partial 
settlement agreement. The EPA is temporarily suspending its Docket 
Center and Reading Room for public visitors, 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 or couriers will be received by scheduled 
appointment only. For further information and updates on EPA Docket 
Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.
    The electronic version of the public docket for this action 
contains a copy of the proposed stipulated partial settlement 
agreement, and is available through https://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. Please refer to the information 
above about the current status of 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.

Joseph E. Cole,
Associate General Counsel.
[FR Doc. 2020-26311 Filed 11-27-20; 8:45 am]
BILLING CODE 6560-50-P