Pesticides; Certification of Pesticide Applicators; Delay of Effective Date, 25529-25532 [2017-11458]
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Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations
EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS
State
submittal
date/
effective
date
Name of
nonregulatory
SIP provision
Applicable
geographic or
nonattainment
area
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2008 8-hour ozone Maintenance Plan for the Atlanta Area.
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Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb,
Douglas, Fayette, Forsyth, Fulton, Gwinnett,
Henry, Newton, Paulding and Rockdale Counties.
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
3. The authority citation for part 81
continues to read as follows:
■
EPA approval
date
*
7/18/2016
Authority: 42 U.S.C. 7401, et seq.
Explanation
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6/2/2017, [insert Federal
Register citation].
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by revising the entry for ‘‘Atlanta,
GA: 2’’ to read as follows:
4. In § 81.311, the table entitled
‘‘Georgia—2008 8-Hour Ozone NAAQS
(Primary and secondary)’’ is amended
■
§ 81.311
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*
Georgia.
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GEORGIA—2008 8-HOUR OZONE NAAQS
[Primary and secondary]
Designation
Classification
Designated area
Date 1
Atlanta, GA: 2 ...................................................................................................
Bartow County ..........................................................................................
Cherokee County ......................................................................................
Clayton County .........................................................................................
Cobb County .............................................................................................
Coweta County .........................................................................................
DeKalb County .........................................................................................
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Fayette County .........................................................................................
Forsyth County .........................................................................................
Fulton County ...........................................................................................
Gwinnett County .......................................................................................
Henry County ............................................................................................
Newton County .........................................................................................
Paulding County .......................................................................................
Rockdale County ......................................................................................
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Date 1
Type
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Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
Attainment.
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date is July 20, 2012, unless otherwise noted.
Indian country located in each area, unless otherwise noted.
2 Excludes
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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.
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[FR Doc. 2017–10934 Filed 6–1–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 171
[EPA–HQ–OPP–2011–0183; FRL–9963–34]
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Pesticides; Certification of Pesticide
Applicators; Delay of Effective Date
Environmental Protection
Agency (EPA).
ACTION: Final rule; delay of effective
date.
With this action, EPA is
delaying the effective date for the final
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The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2011–0183, is
available at https://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
ADDRESSES:
AGENCY:
SUMMARY:
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.
DATES:
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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 https://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: keaney.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations
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 12month 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,
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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
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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 12month 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
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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,
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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
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25531
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,
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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 https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
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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.
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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
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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]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2016–0236; FRL–9954–47]
Bifenthrin; Pesticide Tolerances for
Emergency Exemptions
Correction
In rule document 2016–29882,
appearing on pages 93824–93831, in the
Issue of Thursday, December 22, 2016,
make the following correction:
On page on page 93827, in the second
column, in the last line ‘‘(≤15% CT)’’
should be ‘‘(>15% CT)’’.
[FR Doc. C2–2016–29882 Filed 6–1–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 258
[EPA–R08–RCRA–2016–0505; FRL–9962–
18–Region 8]
Approval of Alternative Final Cover
Request for Phase 2 of the City of Wolf
Point, Montana, Landfill
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The U.S. Environmental
Protection Agency (EPA) is taking direct
final action to approve an alternative
final cover for Phase 2 of the City of
Wolf Point landfill, a municipal solid
waste landfill (MSWLF) owned and
SUMMARY:
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Agencies
[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.
-----------------------------------------------------------------------
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 https://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 https://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: keaney.kevin@epa.gov.
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
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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 https://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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