Pesticide Rule Delay Unusual, But Not Necessarily Illegal

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By Tiffany Stecker

The EPA’s decision to allow a shorter-than-usual comment period on a pesticide rule delay is drawing fire from environmental groups, but legal professionals say the move is ambiguous under federal law.

EPA Administrator Scott Pruitt announced May 11 that the agency would postpone the implementation date for a pesticide certification and training rule by a year, which marked the third time the Trump administration changed the effective date of the regulation. In an unusual move, the Environmental Protection Agency published the notice in the Federal Register as a final rule, but asked that interested parties weigh in on the delay within a week. The final day for comment is May 19 — just three days before the delay is to go into effect.

Environmental groups are considering taking the agency to court over the short time allotted for public input.

“The comment period is a sham,” Eve Gartner, a staff attorney with Earthjustice in New York told Bloomberg BNA. “What the agency is doing here is lawless.”

But others say these shortcuts, while questionable, aren’t necessarily a violation of the Administrative Procedure Act, the 1946 law that directs how federal agencies may write and enforce regulations.

“It’s a legal gray area,” James Goodwin, a senior policy analyst with the Center for Progressive Reform, told Bloomberg BNA.

EPA Invoked Legal Exception

The pesticide certification and training rule, which updates licensing requirements for people who apply the the most toxic fumigants, insecticides and weedkillers, was originally scheduled to go into effect on March 6 (RIN:2070-AJ20). The EPA issued two short-term extensions of the effective date before moving ahead with the one-year delay.

In its Federal Register publication, the EPA invoked a “good cause” exception to justify the shorter comment period because 30-days would be “impracticable, unnecessary and contrary to the public interest” given the imminent effective date of the pesticide applicator rule.

Agencies can do this if there is an urgency to complete a rule, said Goodwin.

In some cases, these rules are called “interim final rules” or “direct final rules” to indicate that, while the decision is final, the agency is still prepared to hear suggestions on potential improvements. A recent example is a December interim final rule from the Pipeline and Hazardous Materials Safety Administration to tighten safety measures at underground natural gas storage facilities in response to the 2015 Aliso Canyon gas leak in California.

Comment Period ‘Essentially Worthless’

The pesticide certification rule set a minimum age of 18 to be certified to apply “restricted-use” pesticides, required states to develop new tests for those applying for licenses and allowed licenses to expire after five years.

State agencies that must implement the pesticide certification rule generally supported the rule. But those agriculture departments say some states are less prepared to take on the changes than others.

The EPA could use the implementation delay to write guidance to help states get to speed, Dudley Hoskins, public policy counsel for the National Association of State Departments of Agriculture, told Bloomberg BNA.

“It’s not about reducing or minimizing worker protections,” he said.

Supporters of the rule say that waiting a year to implement the regulation is unnecessary. Under the rule, certifying authorities have two years from the effective date to submit a certification plan for EPA approval, a process that can take another two years. That time frame is sufficient, a coalition of 10 farmworker and pesticide-reform organizations said in comments.

The solicitation for public comment for such a short period of time will not do much to help the officials tasked with implementing the rule, Goodwin said.

“They’re doing this post-hoc solicitation that’s essentially worthless in various ways,” he said.

The Administrative Procedure Act does not specify a minimum time for public comment, although a 30-day or 60-day time frame is typical. Thirty days would have pushed past the May 22 implementation date, and would have likely made it impossible to offer more time for states to catch up.

“EPA would be in a difficult position if the rule took effect and then EPA tried to delay it,” Gerald Yamada, who served as acting EPA general counsel during three different administrations, told Bloomberg BNA in an email.

Delays Typical for ‘Midnight’ Rules

The certification and training rule was issued in January just days before the Obama administration left office. Delayed implementation of rules is “a recurring situation” in any change in administration, Ron Levin, a professor of administrative law at the Washington University Law School in St. Louis, told Bloomberg BNA.

A federal appeals court recently ruled on the issue when it considered former Labor Secretary Hilda Solis’ 2009 suspension of one of her predecessor's “midnight rules” on temporary visas for agricultural workers. Outside parties had 10 days to comment on the suspension.

In a 2012 decision, the U.S. Court of Appeals for the Fourth Circuit wrote that under certain circumstances a comment period may be open for only a handful of days. The Department of Labor, however, failed to raise these concerns and didn’t provide an adequate opportunity for comment when it solicited comments for 10 days and restricted their content, the appeals court wrote.

Still, it appears as if President Donald Trump’s administration could be pushing the limits of the law in offering such a short period for comment.

“The five days is provocative,” Levin said. EPA’s challengers “could make a legitimate point that five days isn’t enough to allow them to do what they should do under APA.”

To contact the reporter on this story: Tiffany Stecker in Washington, D.C. at tstecker@bna.com

To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

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