[Federal Register Volume 87, Number 37 (Thursday, February 24, 2022)]
[Notices]
[Pages 10363-10364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03927]



[[Page 10363]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2021-0674; FRL-9566-01-OGC]


Proposed Stipulated Partial Settlement Agreement, Endangered 
Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulated 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 second proposed stipulated partial 
settlement agreement that resolves the Center for Environmental Health, 
et al., v. Wheeler, et al., case in the United States District Court 
for the Northern District of California (4:18-cv-03197) that alleges 
that EPA and the United States Fish and Wildlife (FWS) failed to comply 
with certain procedural and substantive duties under the Endangered 
Species Act (ESA). Defendant-Intervenor joins this proposed stipulated 
partial settlement agreement.

DATES: Written comments on the proposed stipulated partial settlement 
agreement must be received by March 28, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2021-0674, 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 
<a href="/cdn-cgi/l/email-protection#284346475a5a0645414b404d444d684d5849064f475e"><span class="__cf_email__" data-cfemail="9ff4f1f0ededb1f2f6fcf7faf3fadffaeffeb1f8f0e9">[email protected]</span></a>.

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-2021-0674) contains a copy of the proposed settlement 
agreement.
    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

    Prior to this lawsuit being filed, on January 18, 2017, EPA 
submitted to FWS a nationwide biological evaluation regarding the 
effects of malathion and two other pesticide active ingredients on 
species listed as threatened or endangered under the ESA, 16 U.S.C. 
Section 1531 et seq., and their designated critical habitats and 
requested initiation of consultation pursuant to ESA Section 7(a)(2), 
16 U.S.C. Section 1536(a)(2) (the Malathion Consultation). The 
Malathion Consultation has been ongoing since that date.
    Plaintiffs filed their original case in May 2018, and amended the 
complaint on July 25, 2018, and on November 27, 2018, alleging that: 
(1) EPA violated its procedural duty under ESA Section 7(a)(2) to 
complete consultation and its substantive duty under ESA Section 
7(a)(2) to avoid jeopardy with respect to 21 malathion-containing 
pesticide product registrations under the Federal Insecticide 
Fungicide, and Rodenticide Act (FIFRA), and the FWS violated its 
procedural duty to complete consultation under ESA Section 7(a)(2); (2) 
these failures constitute unlawfully withheld or unreasonably delayed 
agency action in violation of Section 706(1) of the Administrative 
Procedure Act, 5 U.S.C. Section 706(1); and (3) EPA failed to comply 
with ESA Section 7(d) when it ``maintained the registrations of these 
same pesticide products and continued to reregister and register 
pesticide products containing malathion.''
    On January 4, 2022, the court entered the first stipulated partial 
settlement agreement that resolved part of this case. Specifically, 
unless one of the contingencies set forth in settlement agreement 
occurs (which may result in an extension of time), FWS will issue its 
Final Biological Opinion and conclude the Malathion Consultation no 
later than February 28, 2022.
    The remaining part of this case involves the substantive claims 
under ESA section 7(a)(2) against EPA. This second proposed partial 
settlement agreement states that, unless one of the contingencies set 
forth in settlement agreement occurs (which may result in an extension 
of time), EPA will implement specific portions of the Final Biological 
Opinion no later than 18 months from the date that FWS issues the Final 
Biological Opinion. Implementation will include, but is not limited to, 
providing to all registrants of products containing malathion written 
notice of the issuance of the Final Biological Opinion no later than 60 
calendar days from its issuance, as well as notice of any actions the 
malathion registrants must take (including to require submission of 
requests to amend labeling or terms and conditions of registration).
    Court approval of this proposed stipulated partial settlement 
agreement would result in the dismissal with prejudice of the remaining 
claims. Defendant-Intervenor joins this proposed settlement 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

[[Page 10364]]

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 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.

III. Additional Information About Commenting on the Proposed Settlement 
Agreement

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-
0674, 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. 2022-03927 Filed 2-23-22; 8:45 am]
BILLING CODE 6560-50-P


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