83 FR 12754 - Chlorpyrifos, Diazinon, and Malathion; National Marine Fisheries Service Biological Opinion Issued Under the Endangered Species Act; Notice of Availability

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 57 (March 23, 2018)

The Environmental Protection Agency (EPA) is seeking comment on the final Biological Opinion (BiOp) issued under the Endangered Species Act (ESA) by the National Marine Fisheries Service (NMFS), regarding the potential effects of chlorpyrifos, malathion, and diazinon on federally listed threatened or endangered species (listed species) and their designated critical habitats.

[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Notices]
[Pages 12754-12755]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06026]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2018-0141; FRL-9975-59]


Chlorpyrifos, Diazinon, and Malathion; National Marine Fisheries 
Service Biological Opinion Issued Under the Endangered Species Act; 
Notice of Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is seeking comment 
on the final Biological Opinion (BiOp) issued under the Endangered 
Species Act (ESA) by the National Marine Fisheries Service (NMFS), 
regarding the potential effects of chlorpyrifos, malathion, and 
diazinon on federally listed threatened or endangered species (listed 
species) and their designated critical habitats.

DATES: Comments must be received on or before May 22, 2018.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2018-0141, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket 
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 
20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Tracy Perry, Pesticide Re-Evaluation 
Division (7508P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; telephone number: (703) 308-0128; email address: 
[email protected].

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 
interest to a wide range of stakeholders including environmental, farm 
worker, and agricultural advocates; the chemical industry; pesticide 
users; and members of the public interested in the sale, distribution, 
or use of pesticides and/or the potential impacts of pesticide use on 
listed species and designated critical habitat. Since others also may 
be interested, the Agency has not attempted to describe all the 
specific entities that may be affected by this action.

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 email. 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 preparing and submitting 
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

C. How can I get copies of this document and other related information?

    A copy of the Biological Opinion on Pesticides: Chlorpyrifos, 
Diazinon, and Malathion is available in the docket under docket 
identification (ID) number EPA-HQ-OPP-2018-0141.

II. What action is the Agency taking?

A. Authority

    The ESA requires Federal agencies, such as EPA, to ensure that 
their actions are not likely to jeopardize the continued existence of 
species listed as threatened or endangered under the ESA, or destroy or 
adversely modify the designated critical habitat of such species. The 
registration of a pesticide under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA) constitutes an EPA ``action'' under the 
ESA. If EPA determines a pesticide may affect a listed species or its 
designated critical habitat, EPA must initiate consultation with the 
U.S. Fish and Wildlife Service (FWS) or NMFS (the Service or Services), 
as appropriate. In response to a Federal agency initiating formal 
consultation, the Service(s) develops a BiOp in which it provides its 
opinion on whether the ``action'' is likely to jeopardize the continued 
existence of a listed species and/or is likely to destroy or adversely 
modify designated critical habitat and, if so, describes reasonable and 
prudent alternatives (RPAs) to avoid the determination. The BiOp will 
also address whether the action will result in incidental take of 
listed species and, if so, provide a statement specifying the amount of 
any permitted incidental take and setting forth reasonable and prudent 
measures (RPMs) necessary or appropriate to minimize the impact of such 
take.

B. Background

    Consistent with EPA's responsibility under the ESA, on January 18, 
2017, EPA released national-level endangered species Biological 
Evaluations (BEs) for chlorpyrifos, diazinon, and malathion to

[[Page 12755]]

assess risks to listed species from registered uses of these 
pesticides. These BEs were completed in accordance with the joint 
Interim Approaches developed to implement the recommendations of the 
April 2013 National Academy of Sciences (NAS) report, Assessing Risks 
to Endangered and Threatened Species from Pesticides. The NAS report 
outlined recommendations on specific scientific and technical issues 
related to the development of pesticide risk assessments that EPA and 
the FWS and NMFS must conduct to meet their obligations under the ESA. 
In November 2013, the Services, EPA, and the U.S. Department of 
Agriculture (USDA) released a white paper containing a summary of their 
joint Interim Approaches for assessing risks to listed species from 
pesticides. Details of the joint Interim Approaches are contained in 
the November 1, 2013 white paper Interim Approaches for National-Level 
Pesticide Endangered Species Act Assessments Based on the 
Recommendations of the National Academy of Sciences April 2013 Report. 
The methods developed as part of the joint Interim Approaches will 
continue to be vetted before EPA utilizes these methods broadly to meet 
its ESA obligations. Additional information on endangered species risk 
assessment and the NAS report recommendations are available at https://www.epa.gov/endangered-species/implementing-nas-report-recommendations-ecological-risk-assessment-endangered-and.
    On December 29, 2017, in response to a court-ordered deadline in 
the case of Nw. Coal. for Alternatives to Pesticides, et al. v. NMFS, 
Stipulation and Order, Dkt. 50, No. 07-1791-RSL (D. Wash. May 21, 
2014), NMFS transmitted to EPA its final BiOp regarding the effects of 
the registration review under section 3 of FIFRA of these pesticides on 
listed species. The BiOp addressed the effects of these three 
pesticides on 77 listed species and 50 designated critical habitats 
and, in sum, 38 different species would likely be jeopardized with 
extinction and 37 critical habitat units would be destroyed or 
adversely modified. NMFS had sought from the court, but was not 
provided, additional time to complete the BiOp. On January 8, 2018, EPA 
confirmed receipt of the BiOp and informed NMFS of EPA's intention to 
reinitiate informal consultation on the BiOp so that the consultation 
on the pesticides could be informed by (1) input from stakeholders, (2) 
further interagency discussion and agreement on the jeopardy 
determination interim methods, and (3) additional data and analysis, 
including consideration of the best scientific and commercial data 
available on use and usage information. On February 21, 2018, EPA sent 
NMFS a letter requesting informal consultation on the same action. EPA 
will use the information and analysis received and developed in the 
course of the informal consultation to inform whether formal 
reinitiation of consultation on the BiOp is appropriate.

C. Public Involvement Process

    As a result of the U.S. District Court Western District of 
Washington at Seattle's failure to extend NMFS's court-ordered 
deadline, NMFS issued the final BiOp without having received input from 
the public and applicants (pesticide registrants), which is at odds 
with EPA's 2013 public stakeholder process for ESA consultations--an 
open and transparent process supported by the Services, EPA, and USDA. 
As explained in the 2013 public stakeholder document, stakeholder input 
is critical to the development and evaluation of any measures EPA may 
implement to address risks to listed species and designated critical 
habitat. Accordingly, EPA is seeking comment on the BiOp to receive 
stakeholder and public input prior to either reinitiating consultation 
on the BiOp or implementing the measures of BiOp. EPA will evaluate the 
input received in determining how it will proceed with respect to the 
final BiOp.

D. Public Comments Sought

    The BiOp for chlorpyrifos, diazinon, and malathion is being 
included in the docket (EPA-HQ-OPP-2018-0141) to seek input on NMFS's 
jeopardy findings, RPMs and RPAs, and to solicit additional use and 
usage information. Specifically:
    1. Comments on the scientific approaches and data sources used to 
support the BiOp and reach determinations for the listed species and 
critical habitat.
    2. Comments on the RPAs and RPMs. Can they be reasonably 
implemented? If not, describe why not. Are there different measures 
that may provide equivalent protection to the ones in the BiOp but 
result in less impact to pesticide users?
    3. Comments on national- and state-level use and usage data and 
information. In particular, EPA is seeking usage data and information 
for non-agricultural use sites (e.g., nurseries, managed forests, 
pasture, rights-of-way, golf courses, and wide-area mosquito control). 
If possible, provide sources of data and information that should be 
considered.

    Authority: 7 U.S.C. 136 et seq.

    Dated: March 15, 2018.
Yu-Ting Guilaran,
Director, Pesticide Re-Evaluation Division, Office of Pesticide 
Programs.
[FR Doc. 2018-06026 Filed 3-22-18; 8:45 am]
 BILLING CODE 6560-50-P