[Federal Register Volume 86, Number 200 (Wednesday, October 20, 2021)]
[Notices]
[Pages 58074-58075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22860]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2020-0520; FRL-9142-01-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 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 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 the Natural Resources Defense 
Council (NRDC) are proposing to resolve this case through a stipulated 
partial settlement agreement. Defendant-Intervenor takes no position on 
this agreement.

DATES: Written comments on the proposed stipulated partial settlement 
agreement must be received by November 19, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2020-0520, online at https://www.regulations.gov (EPA's preferred 
method). Follow the online instructions for submitting comments.
    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-2020-0520) contains a copy of the proposed settlement 
agreement.

[[Page 58075]]

    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

    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). The Court approved, in February 2018, a 
stipulation of partial dismissal of many products, leaving 59 pesticide 
product registrations at issue. In January 2021, Plaintiff and EPA 
reached a stipulated partial settlement agreement in this case where 
EPA agreed 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.
    After the entry of the stipulated partial settlement agreement for 
imidacloprid, the parties filed summary judgment motions and cross 
motions on the remaining claims. Shortly after these filings, the 
parties began settlement discussions on these remaining claims. The 
stipulated partial settlement agreement for which EPA is taking comment 
addresses these two claims. Specially, Paragraph 1 of the stipulated 
partial settlement agreement states that EPA will by October 2024 
complete effects determinations and request initiation of any necessary 
ESA consultation pursuant to 50 CFR part 402 regarding the potential 
effects of acetamiprid and dinotefuran on any and all listed species 
and designated critical habitat.
    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 the draft biological evaluations no later than one year 
prior to the deadline for the final biological evaluations, as well as 
to provide notice and a 60-day opportunity for public comment on any 
such draft, and (2) conduct the effects determinations on a nationwide-
scale. Defendant-Intervenor takes no position on this 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 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.

III. Additional Information About Commenting on the Proposed Settlement 
Agreement

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-
0520, 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 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. 2021-22860 Filed 10-19-21; 8:45 am]
BILLING CODE 6560-50-P