[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Notices]
[Pages 81205-81206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27541]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2020-0612; FRL 10017-99-OGC]


Proposed Settlement Agreement; Biological Evaluations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed 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 settlement agreement in the five 
consolidated petitions for review in Center for Biological Diversity, 
et al. v. EPA (D.C. Cir. Nos. 15-1054, 15-1176, 15-1389, 15-1462 and 
16-1351) in the United States Court of Appeals for the District of 
Columbia. In 2015 and 2016, the Center for Biological Diversity and 
other Petitioners (collectively, ``Petitioners'') filed five petitions 
for review of registrations containing five active ingredients: 
flupyradifurone, bicyclopyrone, benzovindiflupyr, cuprous iodide, and 
haluaxifen-methyl. The five petitions for review alleged that EPA 
violated the Endangered Species Act (``ESA'') by failing to consult on 
the effects to listed species when registering products containing the 
five new active ingredients. The Court consolidated the cases on June 
20, 2018. The registrants for each active ingredient other than cuprous 
iodide sought and were granted intervention.
    EPA, the Petitioners and the Defendant-Intervenors (collectively, 
``the Parties'') are proposing to enter into an out-of-court settlement 
agreement, which, among other things, calls for the Parties to file a 
Joint Motion for Order on Consent requesting that the Court order EPA 
to: complete a final effects determination for any use of cuprous 
iodide that is approved for sale and distribution by August 13, 2021; 
complete final Biological Evaluations for two of the other active 
ingredients by September 30, 2025 and the remaining two active 
ingredients by September 30, 2027; and initiate consultation with the 
National Marine Fisheries Service and/or the Fish and Wildlife Service 
(Services) as appropriate based on the outcome of the Biological 
Evaluations.

DATES: Written comments on the proposed settlement agreement must be 
received by January 14, 2021.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2020- 0612 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: Erin S. Koch, 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) 564-1718; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Settlement Agreement

    In 2015 and 2016, Petitioners filed five petitions for review in 
the Court of Appeals for the D.C. Circuit as EPA issued registrations 
for five new active ingredients, namely flupyradifurone, bicyclopyrone, 
benzovindiflupyr, cuprous iodide, and halauxifen-methyl. The petitions 
for review alleged that EPA violated Section 7(a)(2) of the ESA by 
failing to consult on the effects to listed species of the five new 
active ingredients. The Court consolidated the cases on June 20, 2018. 
The registrants for each active ingredient other than cuprous iodide 
sought and were granted intervention.
    The Parties have been engaged in settlement negotiations to reach 
an agreement in this case. The proposed settlement agreement between 
the Parties calls for, among other things, the Parties to file a Joint 
Motion for Order on Consent requesting that the Court order EPA to: (1) 
Complete a final effects determination for any use of cuprous iodide 
that is approved for sale and distribution by August 13, 2021; (2) 
complete final Biological Evaluations (BEs) for two of the other active 
ingredients by September 30, 2025 and the remaining two active 
ingredients by September 30, 2027; and (3) initiate consultation as 
appropriate based on the outcome of the BEs.
    Similar to the settlement agreement in CBD, et al. v. EPA, et al. 
(Case No. CV-11-0293-JCS (N.D. Cal.)), this proposed settlement 
agreement provides for the possibility of extending these dates if 
specific events occur, such as an extension of a comment period.
    In addition to the commitments above, the settlement agreement 
provides that within three months of issuance of draft BEs or no later 
than December of 2024 and 2026, the Parties will meet and discuss 
potential interim measures. The settlement agreement also provides that 
EPA will maintain a web page that includes the settlement agreement, 
associated court orders, and a link to an independent 3rd-party web 
page hosted, maintained, and funded by Defendant-Intervenors.
    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 settlement agreement from persons who are not named as parties 
to the litigation in question. EPA may withdraw or withhold consent to 
the proposed 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 
determines that consent should be withdrawn, the terms of the proposed 
settlement agreement will be affirmed.

[[Page 81206]]

II. Additional Information About Commenting on the Proposed Settlement 
Agreement

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

    The official public docket for this action (identified by EPA-HQ-
OGC-2020-0612) contains a copy of the proposed settlement agreement and 
proposed order that will be filed with the Joint Motion for Order on 
Consent. 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 settlement agreement and proposed order 
that will be filed with the Joint Motion for Order on Consent, 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. 2020-27541 Filed 12-14-20; 8:45 am]
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