E7-7764. Final Stipulated Injunction and Related Information Involving Pesticides and the California Red-Legged Frog; Notice of Availability

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

On October 20, 2006, the Federal District Court for the Northern District of California issued a Stipulated Injunction, resolving a lawsuit filed by the Center for Biological Diversity against EPA, alleging that EPA failed to comply with section 7(a)(2) of the Endangered Species Act by not ensuring that its registration of 66 named pesticide active ingredients will not jeopardize the California red-legged frog, a federally-listed Threatened species. Key terms of the Stipulated Injunction are summarized as follows: a Court-ordered schedule for EPA to make effects determinations for the 66 named pesticides; interim injunctive measures regarding EPA's authorization of uses of the 66 pesticides in certain parts of 33 counties in California; and the development and distribution of a bilingual brochure regarding certain aspects of the injunction, pesticides and frogs. Today, EPA announces the availability on its Web site (www.epa.gov/​espp) of the bilingual brochure, along with maps and guidance regarding the interim injunctive measures ordered by the Court.

FOR FURTHER INFORMATION CONTACT:

Arty Williams, Environmental Fate and Effects Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

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, CropLife America, American Forest and Paper Association, Western Plant Health Association, Oregonians for Food and Shelter, and Syngenta Crop Protection, Inc., other public interest groups, state regulatory partners, other interested federal agencies, 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. How Can I Get Copies of this Document and Other Related Information?

1. Docket. EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2006-0702. 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 Office of Pesticide Programs (OPP) Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., 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 telephone number is [phone].

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr/​.

II. Background

On April 2, 2002, the Center for Biological Diversity (CBD) filed a lawsuit in Federal District Court for the Northern District of California, alleging that EPA failed to comply with section 7(a)(2) of the Endangered Species Act by not ensuring that its registration of 66 named pesticide active ingredients will not affect the California red-legged frog, a federally-listed threatened species. CBD, EPA, and defendant-intervenors CropLife America, American Forest and Paper Association, Western Plant Health Association, Oregonians for Food and Shelter, and Syngenta Crop Protection, Inc. engaged in discussions to try to resolve the case.

On September 1, 2006, EPA issued a notice in the Federal Register (71 FR 52073; FRL-8090-9), announcing the availability of a proposed Stipulated Injunction, and opening a 15-day public comment period on the draft. EPA received numerous comments from the public, California state agencies, and others, regarding certain aspects of the proposed Stipulated Injunction. These comments, as well as the proposed and final versions of the Stipulated Injunction, are available at regulations.gov in the public docket, ID number EPA-HQ-OPP-2006- 0702.

Based on public comments received and subsequent discussion with CBD and defendant-intervenors, the federal government agreed to the Stipulated Injunction with a modification to the definition of “upland habitat” in section 3(b) of the injunction to conform this definition, which applies outside designated critical habitat, with the definition of “upland habitat” used by the U.S. Fish and Wildlife Service in its designation of critical habitat for this species (71 FR 19244-19346, April 13, 2006).

On October, 13, 2006, the Federal Government joined CBD and defendant-intervenors in asking the Court to issue a Stipulated Injunction resolving the lawsuit. The Court ordered the Stipulated Injunction on October 20, 2006. The key provisions of the Stipulated Injunction are listed below.

1. Schedule for effects determinations: The Stipulated Injunction establishes a series of deadlines for the Agency to make “effects determinations” for 66 named pesticides to determine their potential effect on the California red-legged frog (a threatened species native to California).

2. Interim injunctive relief: The Stipulated Injunction also (with some exceptions) enjoins, vacates and sets aside EPA's authorization of uses of the 66 pesticides in certain parts of 33 counties in California. The injunctive relief, vacatur, and setting aside of EPA's authorizations would terminate for a particular use of a pesticide when the Agency makes a determination that the pesticide's use has “no effect” on the California red-legged frog, or, where EPA determined the pesticide's use may affect the species, when EPA completes consultation with the U.S. Fish and Wildlife Service.

3. Development and distribution of a bilingual brochure: The injunction also requires EPA to develop and distribute a bilingual (English and Spanish) brochure regarding certain aspects of the injunction, the California red-legged frog and frogs in general, and pesticides. EPA is required to distribute this brochure to all commercial certified applicators within California; to all private certified applicators residing in counties where use authorizations have been set aside; to registrants of the 66 pesticides; the California Departments of Pesticide Regulation, and Fish and Game; and the Pacific Region of U.S. Fish and Wildlife Service. In addition, EPA is to distribute 250 copies of the brochure to the County Agricultural Commissioner and Cooperative Extension Agent offices in the affected counties.

In addition to distributing the bilingual brochure as required by the Stipulated Injunction, EPA has made this brochure available on its Web site (www.epa.gov/​espp). Further, EPA has developed and posted on its Web site maps of the areas in California where the injunctive relief applies and information to assist pesticide users in determining whether particular areas are within the scope of the Stipulated Injunction. The full text of the Stipulated Injunction and other related materials are also available at that Web site.

List of Subjects

• Environmental protection
• Endangered species

Dated: April 17, 2997.

Steve Bradbury,

Director, Environmental Fate and Effects Division, Office of Pesticide Programs.