Notice2021-22860
Proposed Stipulated Partial Settlement Agreement, Endangered Species Act Claims
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 20, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 200 (Wednesday, October 20, 2021)</title>
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[Federal Register Volume 86, Number 200 (Wednesday, October 20, 2021)]
[Notices]
[Pages 58074-58075]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> (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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
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#dcb7b2b3aeaef2b1b5bfb4b9b0b99cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="7f1411100d0d5112161c171a131a3f1a0f1e51181009">[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-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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may use <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
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