[Federal Register Volume 82, Number 105 (Friday, June 2, 2017)]
[Rules and Regulations]
[Pages 25529-25532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11458]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 171
[EPA-HQ-OPP-2011-0183; FRL-9963-34]
Pesticides; Certification of Pesticide Applicators; Delay of
Effective Date
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; delay of effective date.
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SUMMARY: With this action, EPA is delaying the effective date for the
final rule issued in the Federal Register on January 4, 2017, from June
5, 2017 to May 22, 2018. That rule addressed revisions to the
Certification of Pesticide Applicators rule.
DATES: The effective date of the rule amending 40 CFR part 171 that
published at 82 FR 952, January 4, 2017, delayed at 82 FR 8499, January
26, 2017, and 82 FR 14324, March 20, 2017, is further delayed until May
22, 2018.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2011-0183, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334,
1301 Constitution Ave. NW., Washington, DC 20460-0001. The 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 OPP
Docket is (703) 305-5805. Please review the visitor instructions and
additional information about the docket available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Kevin Keaney, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460;
telephone number: (703) 305-5557; email address: [email protected].
SUPPLEMENTARY INFORMATION:
[[Page 25530]]
I. General Information
On January 4, 2017, EPA published a final rule revising the
regulation concerning the certification of applicators of restricted
use pesticides (RUPs), promulgated in 40 CFR part 171 (82 FR 952; FRL-
9956-70). The original effective date of March 6, 2017 was extended to
March 21, 2017 by a final rule published in the Federal Register on
January 26, 2017, entitled ``Delay of Effective Date for 30 Final
Regulations Published by the Environmental Protection Agency Between
October 28, 2016 and January 17, 2017'' (82 FR 8499). In that rule, EPA
delayed the effective dates of the thirty regulations, including the
final rule revising the regulation concerning the certification of
applicators of restricted use pesticides (RUPs) issued on January 4,
2017 (82 FR 952) (FR-9956-70), as requested in the memorandum of
January 20, 2017, from the Assistant to the President and Chief of
Staff, entitled ``Regulatory Freeze Pending Review'' (January 20
Memorandum). The January 20 Memorandum directed the heads of Executive
Departments and Agencies to postpone for 60 days from the date of the
January 20 Memorandum the effective dates of all regulations that had
been published in the Federal Register but had not yet taken effect.
The January 20 Memorandum further directed that where appropriate
and as permitted by applicable law, agencies should consider a rule to
delay the effective date for regulations beyond that 60-day period.
Accordingly, on March 20, 2017, EPA published the final rule ``Further
Delay of Effective Dates for Five Final Regulations Published by the
Environmental Protection Agency Between December 12, 2016 and January
17, 2017'' (82 FR 14324), to give recently arrived Agency officials the
opportunity to conduct a substantive review of those five regulations,
which included the revised Certification of Pesticide Applicators rule.
Pursuant to that March 20, 2017 rule, the effective date of the revised
Certification of Pesticide Applicators rule was extended to May 22,
2017.
On May 15, 2017, EPA solicited public comment on a proposed 12-
month delay of the effective date until May 22, 2018 (82 FR 22294; FRL-
9962-31). EPA received more than 130 comments in response to the May
15, 2017 request for comments on the proposal to further delay the
effective date until May 22, 2018. On May 22, 2017, EPA published a
rule that made an interim extension of the effective date of the
revised Certification of Pesticide Applicators rule until June 5, 2017
in order to allow additional time for Agency officials to consider and
respond to the public comments.
Section 553(d) of the Administrative Procedure Act, 5 U.S.C.
553(d), allows the effective date of an action to be less than 30 days
from its publication date when a good cause finding is made. The
primary reason for the 30-day waiting period between publication and
effective date is to allow affected parties to adjust to new
requirements. This rule does not impose any new requirements but rather
postpones the effective date of requirements that are not yet in
effect. As noted below, allowing the rule to go into effect could cause
confusion and disruption for affected parties if the rule were
subsequently substantially revised or repealed. Thus, EPA finds there
is good cause to make this rule effective immediately upon publication.
In addition, EPA still has only one Senate-confirmed official, and
the new Administration has not had the time to adequately review the
January 4, 2017 certification rule. This extension to May 22, 2018,
will prevent the confusion and disruption among regulatees and
stakeholders that would result if the January 4, 2017 rule were to
become effective (displace the existing regulation) and then
substantially revised or repealed as a result of administrative review.
In this final rule, EPA is delaying the effective date of the
January 4, 2017 revisions to the Certification of Pesticide Applicators
rule until May 22, 2018. EPA is delaying the effective date of the
January 4, 2017 revisions to the Certification of Pesticide Applicators
rule until May 22, 2018 in accordance with the Presidential directives
as expressed in the memorandum of January 20, 2017, from the Assistant
to the President and Chief of Staff, entitled ``Regulatory Freeze
Pending Review,'' and the principles identified in the April 25, 2017
Executive Order ``Promoting Agriculture and Rural Prosperity in
America.''
II. Comments and Responses
EPA received more than 130 comments relevant to the proposal to
further delay the effective date of the January 4, 2017 Certification
of Pesticide Applicators rule until May 22, 2018. Seventeen comments
were not relevant to this action because they did not address the
extension of the effective date and instead urged EPA to ban
chlorpyrifos or only included specific comments about the January 4,
2017 rule. Out of the relevant comments, 18 commenters supported the
proposed 12-month extension of the effective date and the rest opposed
the proposed 12-month extension.
Comments--specific provisions. About 20 of the comments included
input on the specific provisions of the January 4, 2017 Certification
of Pesticide Applicators rule.
EPA response--specific provisions. This final rule focuses on the
extension of the effective date of the certification rule. Comments on
the specific provisions of the revised certification rule are outside
of the scope of this final rule and will be considered within the
review of the rule through the Regulatory Reform Agenda efforts.
Comments--support. The comments supporting the 12-month extension
of the effective date came from state pesticide regulatory agencies, a
pesticide safety education program and a number of organizations
representing state departments of agriculture, pesticide safety
education programs, pesticide applicators, growers, pesticide
manufacturers, and pesticide retailers. The commenters supported the
12-month extension for a variety of reasons. The most common reason was
to allow EPA and states more time to prepare for the revisions to state
certification programs, engage stakeholders, and develop information
the states need to efficiently implement the January 4, 2017 rule. Some
commenters supported the 12-month extension to give EPA time to revisit
certain aspects of the January 4, 2017 rule and identified specific
requirements, such as minimum age.
EPA response--support. EPA generally agrees with these comments.
During the next 12 months, EPA plans to engage and work with the
certifying authorities (states, tribes and federal agencies), pesticide
safety education programs, pesticide applicators and other stakeholders
to develop checklists, guidance and tools to facilitate the development
of revised certification plans and to discuss how to effectively
implement the certification rule. In addition, EPA will conduct a
substantive review of the questions of fact, law and policy--all within
the context of the very broad cost-benefit standard in FIFRA--during
this period. As mentioned above, comments on the specific provisions of
the revised certification rule will be considered within the review of
the rule through the Regulatory Reform Agenda efforts.
Comments--adjust implementation schedule. One state pesticide
regulatory agency supported the 12-month extension of the effective
date of the Certification of Pesticide Applicators Rule as long as the
implementation schedule in the January 4, 2017 rule is
[[Page 25531]]
extended as well. This implementation schedule allowed three years for
certifying authorities to submit revised plans and an additional two
years for EPA to review the plans and agree upon a timeline for the
certifying authority to implement the plan.
EPA response--adjust implementation schedule. EPA agrees with this
comment and intends to make corresponding changes to the implementation
dates in 40 CFR 171.5 in a subsequent rulemaking.
Comments--implement protections sooner. The commenters opposing the
12-month extension included over 30 non-governmental organizations
representing a range of interests, including but not limited to farm
workers, environmental advocates, occupational or migrant health
clinics and employment law, and many private citizens. The concerns
raised by the commenters opposed to the delay covered several areas,
which are summarized and responded to below.
The commenters urged EPA to begin implementing the rule in May 2017
to allow the intended protections to apply sooner. A few commenters
argued that the extension would increase the risk of serious adverse
effects on human health and the environment and one commenter pointed
out that EPA identified preventable restricted use pesticide exposures
to humans and the environment in the January 4, 2017 rule. This
commenter stated that delaying the rule by a year means these types of
exposures will occur for an additional year.
EPA response--implement protections sooner. The January 4, 2017
final certification rule would not have immediately put in place
additional protections that would prevent or eliminate the types of
exposures identified by EPA in its benefits analysis. The January 4,
2017 rule included an implementation schedule where the certifying
authorities would have up to three years to submit revised
certification plans that conform to the revised standards, so there
already was going to be a delay in the protections actually being
implemented by the certifying authorities. If EPA develops checklists,
guidance and tools to facilitate the development of revised
certification plans during the 12-month delay, it is possible that many
certifying authorities will be able to submit the revised certification
plans well before the three-year deadline for submitting plans.
Comments--basis for extension. Several commenters argued that EPA
did not provide a rational basis for extending the effective date by a
year, with one stating that, for that reason, the rule to extend the
compliance date is arbitrary and capricious and an abuse of discretion.
The commenters questioned what steps have been taken during the
previous 4 months of extensions, what analyses would be done in the
next year and why EPA needs 12 more months.
EPA response--basis for extension. Out of the 30 final regulations
whose effective dates were delayed by the January 26, 2017 final rule,
this is one of the few regulations with an effective date that has been
extended several more times. The Administrator has determined that the
certification rule requires a substantive review of the questions of
fact, law and policy--all within the context of the very broad cost-
benefit standard in FIFRA--so an additional 12 months is necessary and
will provide more certainty to certifying authorities, pesticide safety
education programs, pesticide applicators and other stakeholders than
to have several medium term extensions. Extending the rule by 12 months
is also more efficient for EPA staff and allows them to focus on the
substantive review rather than drafting and implementing several medium
term extensions. The 12-month extension also provides time for EPA to
consider revisions to the certification rule based on input received
through the Regulatory Reform Agenda efforts.
Comments--Administrative Procedures Act. Several comments argued
that the May 15, 2017 rule violated the Administrative Procedures Act
(APA) in several ways. First, commenters argued that the May 15 rule is
a ``final rule'' that makes a significant amendment to a lawfully
promulgated regulation without first proposing the change and seeking
public comment. Second, commenters raised a number of concerns about
the five-day comment period. Specifically, commenters argued that a
delay of the effective date for 12 months is functionally a substantive
amendment or rescission of the certification rule so the APA and FIFRA
require a notice and comment period of at least 30 days. Commenters
also stated that sections 553(d)(1) and (d)(3) of the APA are
inapposite (not pertinent) as legal authority for dispensing with a
``full . . . comment period'' because these sections provide grounds to
the generally applicable requirement that no final rule take effect
sooner than 30 days after its publication but not the length of the
comment period. Some commenters argued that the good cause exception to
the APA's notice requirement in 5 U.S.C. 553(b)(B) is not relevant to
the May 15, 2017 rule. Lastly, commenters disagreed with EPA's
reasoning in the May 15, 2017 rule that a full 30-day comment period is
impractical, unnecessary and contrary to the public interest.
EPA response--APA. The May 15, 2017 FR Notice was styled as a final
rule to be consistent with standard procedures of the Office of the
Federal Register, which require that rules that affect existing rules
(in the case of rules that address changing the effective date of an
existing rule) must appear in the ``Final Rules'' section of the
Federal Register. See OFR Document Drafting Handbook (https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf ) at
section 3.1. Irrespective of the ``Final Rule'' caption, EPA considers
the May 15 Federal Register Notice to have the effect of a proposed
rule under the APA. This is clear from the phrase ``request for
comments'' in the action line, as well as from the text of the FR
Notice, where EPA expressly stated that it was ``proposing to further
delay the effective date'' and requested comment on the proposed
extension.
The Agency's implementation of this action with an abbreviated
opportunity for public comment is based on the good cause exception in
5 U.S.C. 553(b)(B), in that providing additional time for public
comment is impracticable, unnecessary and contrary to the public
interest. The delay of the effective date until May 22, 2018, is
necessary to give Agency officials the opportunity for further review
and consideration of the certification rule, consistent with the
memorandum of the Assistant to the President and Chief of Staff, dated
January 20, 2017, and the principles identified in the April 25, 2017
Executive Order ``Promoting Agriculture and Rural Prosperity in
America.'' Given the imminence of the certification rule effective
date, allowing a longer period for comment on this delay would have
been impractical, as well as contrary to the public interest in the
orderly promulgation and implementation of regulations.
The 90-day comment period for the 2015 proposed rule, combined with
EPA's extensive stakeholder outreach, provided EPA with robust public
comment regarding the risks and benefits associated with the January 4,
2017 certification rule. Inasmuch as there was already a robust public
comment on the merits of the certification rule, the narrow issue of
when the rule should become effective could reasonably be addressed in
a short period of time. If EPA had not shortened the comment period to
five days, the January 4, 2017 certification rule would have gone into
effect. It would have caused unnecessary confusion and disruption to
certifying authorities,
[[Page 25532]]
pesticide safety education programs, pesticide applicators and other
stakeholders for the certification rule to go into effect and then
potentially be substantially revised or repealed following a
substantive review.
Comments--FIFRA. Some commenters argued that the May 15, 2017 rule
violates FIFRA, which requires rules to be reviewed by the U.S.
Department of Agriculture and the FIFRA Scientific Advisory Panel.
FIFRA also requires a 60-day effective date and requires EPA to
transmit a copy of the final rule to Congress at the beginning of this
60-day period.
EPA response--FIFRA. EPA disagrees that the proposed extension of
the effective date of the certification rule violates FIFRA. EPA is
issuing this extension of the effective date of the certification rule
as an APA rule and not a FIFRA rule because today's rule is only
changing the effective date of a final rule that had not become
effective.
Comments--Endangered Species Act. A few commenters argued that the
May 15, 2017 rule violates the Endangered Species Act. Section 7 of the
ESA requires federal agencies to consult with the Fish and Wildlife
Service and the National Marine Fisheries Service unless EPA determined
that its extension of the effective date has ``no effect'' on
threatened and endangered species and their designated critical
habitat.
EPA response--Endangered Species Act. EPA believes that its actions
with respect to deferring the implementation of this rule are not
inconsistent with its obligations under the Endangered Species Act.
III. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; and,
Executive Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993)
and 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not involve any information collection activities
subject to the PRA, 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under RFA, 5 U.S.C.
601 et seq.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not an economically significant
regulatory action as defined by Executive Order 12866.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards that would
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272
note.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action would not have disproportionately
high and adverse human health or environmental effects on minority,
low-income, or indigenous populations, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 171
Environmental protection, Applicator competency, Agricultural
worker safety, Certified applicator, Pesticide safety training,
Pesticide worker safety, Pesticides and pests, Restricted use
pesticides.
Dated: May 26, 2017.
Wendy Cleland-Hamnett,
Acting Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2017-11458 Filed 6-1-17; 8:45 am]
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