[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Notices]
[Pages 31427-31428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15531]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2009-0481; FRL-8425-1]


Proposed Stipulated Injunction Involving Pesticides and Eleven 
Species Listed as Threatened or Endangered Under the Endangered Species 
Act; Notice of Availability

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Notice of availability; request for public comment.

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SUMMARY:  EPA is making available for comment a proposed Stipulated 
Injunction that would establish a series of deadlines for the Agency to 
make ``effects determinations'' and initiate consultation, as 
appropriate, with the U.S. Fish and Wildlife Service for certain 
pesticides in regard to one or more of 11 species found in the greater 
San Francisco Bay area that are listed as endangered or threatened 
under the Endangered Species Act. EPA will evaluate all comments 
received during the public comment period to determine whether all or 
part of the proposed Stipulated Injunction warrants reconsideration or 
revision. This proposed Stipulated Injunction, if entered by the Court, 
would resolve a lawsuit brought against EPA by the Center for 
Biological Diversity in the United States District Court for the 
Northern District of California.

DATES:  Comments must be received on or before July 16, 2009.

ADDRESSES:  Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2009-0481, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
    <bullet> Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only 
accepted during the Docket's normal hours of operation (8:30 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays). Special 
arrangements should be made for deliveries of boxed information. The 
Docket Facility telephone number is (703) 305-5805.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2009-0481. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. 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. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
at http://www.regulations.gov. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either in the electronic docket at http://www.regulations.gov, or, if only available in hard copy, at the OPP 
Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 
2777 S. Crystal Drive, Arlington, VA. The hours of operation of this 
Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The Docket Facility telephone number is (703) 
305-5805.

FOR FURTHER INFORMATION CONTACT:  Arty Williams, Environmental Fate and 
Effects Division (7507P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 305-7695; fax number: (703) 305-6309; e-
mail address: williams.arty @epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general, and may be of 
particular interest to the Center for Biological Diversity (CBD), 
CropLife America, Responsible Industry for a Sound Environment, Reckitt 
Benckiser, other public interest groups, state regulatory partners, 
other interested federal agencies, and other pesticide registrants and 
pesticide users. Since other entities may also be interested, the 
Agency has not attempted to describe all the specific entities that may 
be affected by this action. If you have any questions regarding the 
applicability of this action to a particular entity, consult the person 
listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.

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    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. What Action is the Agency Taking?

    EPA is making available for comment a proposed Stipulated 
Injunction that would establish a series of deadlines for the Agency to 
make ``effects determinations'' and initiate consultation, as 
appropriate, with the U.S. Fish and Wildlife Service (FWS) in 
connection with 74 pesticides and 11 species listed under the 
Endangered Species Act (ESA) as either endangered or threatened. The 
species, found in the greater San Francisco Bay area, are: Alameda 
whipsnake, bay checkerspot butterfly, California clapper rail, 
California freshwater shrimp, California tiger salamander, delta smelt, 
salt marsh harvest mouse, San Francisco garter snake, San Joaquin kit 
fox, tidewater goby, and valley elderberry longhorn beetle. EPA will 
evaluate all comments received during the public comment period to 
determine whether all or part of the proposed Stipulated Injunction 
warrants reconsideration or revision. This proposed Stipulated 
Injunction, available in the public docket, if entered by the United 
States District Court for the Northern District of California, would 
resolve a lawsuit brought against EPA by CBD.

III. Background

    On May 30, 2007, CBD filed a lawsuit in the Federal District Court 
for the Northern District of California alleging that EPA failed to 
comply with 16 U.S.C. 1531-1544 in regard to 47 pesticides and 11 
species that are listed as endangered or threatened under the ESA 
(Center for Biological Diversity v. EPA, No. C 07-02794 JCS (N.D. 
Cal.)). Ultimately, 74 pesticides came to be at issue in this case. EPA 
has reached an agreement with CBD that would establish a schedule for 
EPA to come into compliance with section 7(a)(2) of the ESA for these 
74 pesticides and 11 species, and would include interim injunctive 
relief intended to reduce the potential exposure of the 11 species to 
these pesticides during the period of time in which EPA will be 
satisfying its section 7(a)(2) consultation obligations. The agreement 
is embodied in the proposed Stipulated Injunction that is being made 
available for review and comment through this notice.
    The 74 pesticide active ingredients named in the lawsuit are: 2,4-
D, acephate, acrolein, alachlor, aldicarb, aluminum phosphide, 
atrazine, azinphos-methyl, bensulide, beta-cyfluthrin, bifenthrin, 
brodifacoum, bromadiolone, bromethalin, carbaryl, carbofuran, 
chlorophacinone, chlorothalonil, cholecalciferol, chlorpyrifos, 
cyfluthrin, cyhalothrin (lambda), cypermethrin, deltamethrin, diazinon, 
difethialone, dimethoate, diphacinone, diquat dibromide, disulfoton, 
endosulfan, EPTC (eptam), esfenvalerate, ethoprop, fenpropathrin, 
fipronil, fluvalinate, imidacloprid, magnesium phosphide, malathion, 
maneb, mancozeb, metam sodium, methamidophos, methidathion, methomyl, 
methoprene, methyl bromide, metolachlor, naled, oryzalin, oxydemeton-
methyl, oxyfluorfen, PCNB, pendimethalin, permethrin, phenothrin, 
phomet, phorate, potassium nitrate, propargite, resmethrin, s-
metolachlor, simazine, sodium cyanide, sodium nitrate, strychnine, 
tetramethrin, thiobencarb, tralomethrin, trifulralin, warfarin, zeta-
cypermethrin, and zinc phosphide. EPA has already made effect 
determinations for 6 of these pesticides relative to a subset of the 11 
species: 2,4-D, alachlor, atrazine, endosulfan, permethrin, and 
phorate. For the remaining pesticides, EPA will make effect 
determinations for each of these pesticides and some subset of the 11 
species at issue on a rolling basis, starting with a first batch of 
effect determinations due October 20, 2009, and ending with a last 
batch of effect determinations due no later than June 30, 2014.
    In addition, and as already mentioned above, the Stipulated 
Injunction would (with some exceptions) enjoin, vacate and set aside 
EPA's authorization of use of the pesticides in and adjacent to certain 
habitat features associated with each of the 11 species in specific 
geographic areas within 8 California counties (Alameda, Contra Costa, 
Marin, Napa, San Mateo, Santa Clara, Solano, and Sonoma). This interim 
injunctive relief would terminate automatically for a pesticide upon 
the completion of EPA's consultation obligation under section 7(a)(2) 
of the ESA (including a ``no effect'' determination) for the particular 
pesticide. The Stipulated Injunction would also require EPA to develop 
and distribute a brochure regarding the Stipulated Injunction and the 
11 species, provide certain information to certified pesticide 
applicators in California, and provide certain information to the 
public through the EPA web site.
    Beginning July 1, 2009, EPA is opening a 15-day comment period on 
the proposed Stipulated Injunction. EPA will review any comments 
received to determine whether all or part of the proposed Stipulated 
Injunction warrants reconsideration or revision. If EPA determines that 
any part of the proposed Stipulated Injunction merits reconsideration 
or revision, EPA will contact CBD concerning this matter and the 
proposed Stipulated Injunction will not be submitted to the Court until 
EPA and CBD reach agreement on any such changes. If EPA determines that 
the proposed Stipulated Injunction does not need to be reconsidered or 
revised, the proposed Stipulated Injunction will be submitted to the 
Court and shall become effective upon entry of an Order by the Court 
ratifying the Stipulated Injunction. Once the Stipulated Injunction is 
ratified by Order of the Court, EPA will post on its web site at 
http:www.epa.gov/pesticides a notice indicating the Stipulated 
Injunction has been so entered.

List of Subjects

    Environmental protection, Endangered species.

    Dated: June 25, 2009.
James Jones,
Acting Assistant Administrator, Office of Prevention, Pesticides and 
Toxic Substances

[FR Doc. E9-15531 Filed 6-30-09; 8:45 am]
BILLING CODE 6560-50-S