83 FR 63865 - Proposed Joint Stipulation, Endangered Species Act Claims

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 238 (December 12, 2018)

Page Range		63865-63866
FR Document		2018-26903

In accordance with the 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 joint stipulation and proposed stipulated notice of dismissal in the United States District Court for the Northern District of California in the case of Ellis, et al., v. Keigwin, et al., No. 3:13-cv-01266. On May 8, 2017, the court issued an order on summary judgment dismissing claims against EPA under the Federal Insecticide, Fungicide and Rodenticide Act (``FIFRA''), but finding that EPA failed to perform duties mandated by the Endangered Species Act (``ESA'') to consult with the United States Fish and Wildlife Service (``FWS'') regarding 59 EPA- approved pesticide products containing either of the insecticidal active ingredients clothianidin or thiamethoxam. The parties are proposing to reach a settlement in the form of a joint stipulation on the appropriate remedy for the court's finding of liability. Among other provisions, the joint stipulation would set a June 30, 2022, deadline for EPA to complete ESA effects determination for EPA's registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of any ESA consultations with FWS that EPA may determine to be necessary as a result of those effects determinations. EPA is also taking comment on a proposed stipulated notice of dismissal that would be entered with the court following execution of the joint stipulation.

Federal Register, Volume 83 Issue 238 (Wednesday, December 12, 2018)

[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63865-63866]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26903]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2018-0745; FRL-9987-80-OGC]


Proposed Joint Stipulation, Endangered Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulation; request for public comment.

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SUMMARY: In accordance with the 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 
joint stipulation and proposed stipulated notice of dismissal in the 
United States District Court for the Northern District of California in 
the case of Ellis, et al., v. Keigwin, et al., No. 3:13-cv-01266. On 
May 8, 2017, the court issued an order on summary judgment dismissing 
claims against EPA under the Federal Insecticide, Fungicide and 
Rodenticide Act (``FIFRA''), but finding that EPA failed to perform 
duties mandated by the Endangered Species Act (``ESA'') to consult with 
the United States Fish and Wildlife Service (``FWS'') regarding 59 EPA-
approved pesticide products containing either of the insecticidal 
active ingredients clothianidin or thiamethoxam. The parties are 
proposing to reach a settlement in the form of a joint stipulation on 
the appropriate remedy for the court's finding of liability. Among 
other provisions, the joint stipulation would set a June 30, 2022, 
deadline for EPA to complete ESA effects determination for EPA's 
registration reviews of clothianidin and thiamethoxam and, as 
appropriate, request initiation of any ESA consultations with FWS that 
EPA may determine to be necessary as a result of those effects 
determinations. EPA is also taking comment on a proposed stipulated 
notice of dismissal that would be entered with the court following 
execution of the joint stipulation.

DATES: Written comments on the proposed joint stipulation and 
stipulated notice of dismissal must be received by January 11, 2019.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2018-0745 online at www.regulations.gov (EPA's preferred method). 
For comments submitted at www.regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically 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. The EPA 
generally will 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, please contact 
the person identified in the For Further Information Contact section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mark Dyner, Pesticides and Toxic 
Substances Law Office (2333A), Office of General Counsel, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone: (202) 564-1754; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Joint Stipulation and 
Stipulated Notice of Dismissal

    On March 21, 2013, Plaintiffs (several beekeepers and public 
interest organizations) filed suit in the United States District Court 
for the Northern District of California. Plaintiffs brought claims 
alleging that EPA had improperly denied a petition to suspend products 
containing clothianidin and that EPA's registration of certain 
clothianidin and thiamethoxam products violated certain registration 
requirements of FIFRA, and violated section 7(a)(2) of the ESA because 
EPA had failed to consult with FWS prior to issuing the registrations. 
On May 8, 2017, the court granted EPA's summary judgment motion with 
respect to the FIFRA claims and partially granted Plaintiffs' summary 
judgment motion with respect to the ESA claims, finding that EPA had 
failed to comply with the consultation requirements of section 7(a)(2) 
with respect to 59 clothianidin and thiamethoxam products. In its 
order, the court also directed the parties to develop a briefing 
schedule for determining the appropriate remedy and, concurrently, to 
schedule a settlement conference to determine whether the parties could 
settle the remedy proceeding outside of court.
    The proposed stipulation and stipulated notice of dismissal would 
settle the remedy proceeding. Specifically, paragraph two of the 
proposed stipulation provides that EPA would agree to complete ESA 
effects determinations by June 30, 2022, for its FIFRA registration 
reviews of clothianidin and thiamethoxam and, as appropriate, request 
initiation of any necessary ESA consultations with the Services. As 
provided in paragraph three of the proposed stipulation, EPA would also 
agree to initiate informal consultation with the Services to begin an 
informal dialogue between the agencies prior to EPA completing its 
effects determinations.
    In addition, as described in paragraph one of the proposed 
stipulation, defendant-intervenors Syngenta, Bayer and Valent (the 
registrants of products containing clothianidin and thiamethoxam) have 
agreed to request that EPA voluntarily cancel the following 12 specific 
products that contain either clothianidin or thiamethoxam under section 
6(f)(1) of FIFRA:
    1. Adage Premier Seedcare, EPA Reg. No. 100-1450.
    2. Adage Deluxe, EPA Reg. No. 100-1449.
    3. Avicta Complete Corn 500, EPA Reg. No. 100-1399.
    4. TMX-MXM-FDL-TBZ FS, EPA Reg. No. 100-1426.
    5. Inovate Seed Protectant, EPA Reg. No. 59639-176.
    6. Inovate Neutral Seed Protectant Reg. No. 59639-187.
    7. Emesto Quantum, EPA Reg. No. 264-1125.
    8. Flower Rose & Shrub Care III, EPA Reg No. 72155-95.
    9. V10170 0.25G GL, EPA Reg. No. 59639-164.
    10. Meridian 0.14G, EPA Reg. No. 100-1346.
    11. Meridian 0.20G, EPA Reg. No. 100-1341.
    12. Aloft GC G Insecticide, Reg. No. 59639-214.
    For a period of thirty (30) days following the date of publication 
of this document, the Agency will accept written comments relating to 
the proposed joint stipulation and

[[Page 63866]]

stipulated notice of dismissal from persons who are not named as 
parties to the litigation in question. If so requested, EPA will also 
consider holding a public hearing on whether to agree to the proposed 
joint stipulation and stipulated notice of dismissal. EPA or the 
Department of Justice may withdraw or withhold consent to the proposed 
joint stipulation or proposed stipulated notice of dismissal 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.

II. Additional Information About Commenting on the Proposed Stipulation 
and Stipulated Notice of Dismissal

A. How can I get a copy of the proposed stipulated order of partial 
dismissal?

    The official public docket for this action (identified by EPA-HQ-
OGC-2018-0745) contains a copy of the proposed stipulation and proposed 
order of dismissal. The official public docket is available for public 
viewing at the Office of Environmental Information (OEI) Docket in the 
EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OEI Docket is (202) 566-
1752.
    An electronic version of the public docket is available on EPA's 
website at https://www.epa.gov/ogc/proposed-consent-decrees-and-draft-settlement-agreements and through www.regulations.gov. You may use 
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.'' It is important to note that EPA's policy is that 
public comments, whether submitted electronically or in paper, will be 
made available for public viewing online at www.regulations.gov without 
change, unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. Information 
claimed as CBI and other information whose disclosure is restricted by 
statute is not included in the official public docket or in the 
electronic public docket.
    EPA's policy is that copyrighted material, including copyrighted 
material contained in a public comment, will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the EPA Docket Center.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section. 
Please ensure that your comments are submitted within the specified 
comment period.
    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 and with any disk or 
CD-ROM you submit. 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 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. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email address is automatically captured and 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.

    Dated: December 4, 2018.
Joseph E. Cole,
Associate General Counsel.
[FR Doc. 2018-26903 Filed 12-11-18; 8:45 am]
 BILLING CODE 6560-50-P

Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices 63865

Dated: November 28, 2018. ADDRESSES: Submit your comments, with the consultation requirements of
Daniel D. Opalski, identified by Docket ID number EPA– section 7(a)(2) with respect to 59
Director Office of Water and Watersheds, EPA HQ–OGC–2018–0745 online at clothianidin and thiamethoxam
Region 10. www.regulations.gov (EPA’s preferred products. In its order, the court also
[FR Doc. 2018–26916 Filed 12–11–18; 8:45 am] method). For comments submitted at directed the parties to develop a briefing
BILLING CODE 6560–50–P www.regulations.gov, follow the online schedule for determining the
instructions for submitting comments. appropriate remedy and, concurrently,
Once submitted, comments cannot be to schedule a settlement conference to
ENVIRONMENTAL PROTECTION edited or removed from determine whether the parties could
AGENCY www.regulations.gov. The EPA may settle the remedy proceeding outside of
publish any comment received to its court.
[EPA–HQ–OGC–2018–0745; FRL–9987–80– public docket. Do not submit The proposed stipulation and
OGC] electronically any information you stipulated notice of dismissal would
consider to be Confidential Business settle the remedy proceeding.
Proposed Joint Stipulation, Information (CBI) or other information Specifically, paragraph two of the
Endangered Species Act Claims whose disclosure is restricted by statute. proposed stipulation provides that EPA
Multimedia submissions (audio, video, would agree to complete ESA effects
AGENCY: Environmental Protection etc.) must be accompanied by a written determinations by June 30, 2022, for its
Agency (EPA). comment. The written comment is FIFRA registration reviews of
ACTION: Notice of proposed stipulation; considered the official comment and clothianidin and thiamethoxam and, as
request for public comment. should include discussion of all points appropriate, request initiation of any
you wish to make. The EPA generally necessary ESA consultations with the
SUMMARY: In accordance with the EPA will not consider comments or comment Services. As provided in paragraph
Administrator’s October 16, 2017, contents located outside of the primary three of the proposed stipulation, EPA
Directive Promoting Transparency and submission (i.e. on the web, cloud, or would also agree to initiate informal
Public Participation in Consent Decrees other file sharing system). For consultation with the Services to begin
and Settlement Agreements, notice is additional submission methods, please an informal dialogue between the
hereby given of a proposed joint contact the person identified in the FOR agencies prior to EPA completing its
stipulation and proposed stipulated FURTHER INFORMATION CONTACT section. effects determinations.
notice of dismissal in the United States For the full EPA public comment policy, In addition, as described in paragraph
District Court for the Northern District information about CBI or multimedia one of the proposed stipulation,
of California in the case of Ellis, et al., submissions, and general guidance on defendant-intervenors Syngenta, Bayer
v. Keigwin, et al., No. 3:13–cv–01266. making effective comments, please visit and Valent (the registrants of products
On May 8, 2017, the court issued an http://www2.epa.gov/dockets/ containing clothianidin and
order on summary judgment dismissing commenting-epa-dockets. thiamethoxam) have agreed to request
claims against EPA under the Federal FOR FURTHER INFORMATION CONTACT: that EPA voluntarily cancel the
Insecticide, Fungicide and Rodenticide Mark Dyner, Pesticides and Toxic following 12 specific products that
Act (‘‘FIFRA’’), but finding that EPA Substances Law Office (2333A), Office contain either clothianidin or
failed to perform duties mandated by of General Counsel, U.S. Environmental thiamethoxam under section 6(f)(1) of
the Endangered Species Act (‘‘ESA’’) to Protection Agency, 1200 Pennsylvania FIFRA:
consult with the United States Fish and Ave. NW, Washington, DC 20460; 1. Adage Premier Seedcare, EPA Reg.
Wildlife Service (‘‘FWS’’) regarding 59 telephone: (202) 564–1754; email No. 100–1450.
EPA-approved pesticide products address: dyner.mark@epa.gov. 2. Adage Deluxe, EPA Reg. No. 100–
containing either of the insecticidal 1449.
SUPPLEMENTARY INFORMATION: 3. Avicta Complete Corn 500, EPA
active ingredients clothianidin or
thiamethoxam. The parties are I. Additional Information About the Reg. No. 100–1399.
proposing to reach a settlement in the Proposed Joint Stipulation and 4. TMX–MXM–FDL–TBZ FS, EPA
form of a joint stipulation on the Stipulated Notice of Dismissal Reg. No. 100–1426.
appropriate remedy for the court’s 5. Inovate Seed Protectant, EPA Reg.
On March 21, 2013, Plaintiffs (several No. 59639–176.
finding of liability. Among other
beekeepers and public interest 6. Inovate Neutral Seed Protectant
provisions, the joint stipulation would
organizations) filed suit in the United Reg. No. 59639–187.
set a June 30, 2022, deadline for EPA to
States District Court for the Northern 7. Emesto Quantum, EPA Reg. No.
complete ESA effects determination for
District of California. Plaintiffs brought 264–1125.
EPA’s registration reviews of
claims alleging that EPA had improperly 8. Flower Rose & Shrub Care III, EPA
clothianidin and thiamethoxam and, as
denied a petition to suspend products Reg No. 72155–95.
appropriate, request initiation of any
containing clothianidin and that EPA’s 9. V10170 0.25G GL, EPA Reg. No.
ESA consultations with FWS that EPA
registration of certain clothianidin and 59639–164.
may determine to be necessary as a
thiamethoxam products violated certain 10. Meridian 0.14G, EPA Reg. No.
result of those effects determinations.
registration requirements of FIFRA, and 100–1346.
EPA is also taking comment on a
violated section 7(a)(2) of the ESA 11. Meridian 0.20G, EPA Reg. No.
proposed stipulated notice of dismissal
because EPA had failed to consult with 100–1341.
amozie on DSK3GDR082PROD with NOTICES1

that would be entered with the court
FWS prior to issuing the registrations. 12. Aloft GC G Insecticide, Reg. No.
following execution of the joint
On May 8, 2017, the court granted EPA’s 59639–214.
stipulation.
summary judgment motion with respect For a period of thirty (30) days
DATES: Written comments on the to the FIFRA claims and partially following the date of publication of this
proposed joint stipulation and granted Plaintiffs’ summary judgment document, the Agency will accept
stipulated notice of dismissal must be motion with respect to the ESA claims, written comments relating to the
received by January 11, 2019. finding that EPA had failed to comply proposed joint stipulation and

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of proposed stipulation; request for public comment.
Dates		Written comments on the proposed joint stipulation and stipulated notice of dismissal must be received by January 11, 2019.
Contact		Mark Dyner, Pesticides and Toxic Substances Law Office (2333A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
FR Citation		83 FR 63865