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###### Environmental Protection Agency

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

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice of proposed stipulated settlement agreement; request for public comment.

# 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                         *knorr.michele@epa.gov.*

# 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                           ( print 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