NPMA Federal Update
**Disclaimer: The NPMA Federal Update was written on July 24, 2015. Please visit www.npmapestworld.org for developments and updates on Federal policy**
EPA Proposed Pollinator Rule: Pesticide Label Restrictions to Protect Managed Bees
On May 29, following the release of the President's National Strategy to Promote Health of Honey Bees and Other Pollinators, the U.S. Environmental Protection Agency (EPA) published a proposed rule Bees: Mitigation Exposure from Acutely Toxic Pesticide Products. The EPA rule proposes to prohibit the use of certain pesticides on sites where crops are in bloom and managed bees are under contract for pollination services. These proposed label changes will have little impact on structural pest management uses. In addition to label changes, the EPA is encouraging states to develop managed pollination protection programs to help promote bee health and increase communication between beekeepers and other stakeholders. NPMA members are encouraged to get involved in the development of state plans through your state association. For more information and resources regarding state plans visit www.pollinatorfacts.org.
The initial public comment period was 30 days, closing on June 28, 2015, but has since been extended by EPA until August 28, 2015. NPMA submitted comments in June applauding EPA's measured approach and stated, "NPMA is encouraged that EPA did not take drastic steps limiting the use of EPA approved products to manage targeted pests in and around structures where the potential for exposure to pollinators is nominal." NPMA additionally requested states to incorporate the NPMA pollinator best management practices into their state managed pollinator protection programs.
Department of Labor Releases New Overtime Regulations
On July 6, the Department of Labor (DOL) published new overtime regulations in the Federal Register. The regulations are in response to a 2014 directive by President Obama to update overtime rules under the federal Fair Labor Standards Act (FLSA). FLSA guarantees overtime pay at a rate of one and one-half the employee's regular rate of pay for hours worked in excess of 40 in a workweek. The current FLSA has a salary threshold of $23,660 annually ($455 per week), meaning ANY employee making less is eligible for overtime. Employees making over the $23,660 annual threshold are eligible for overtime unless they fall under a specific industry exemption (teachers, doctors, lawyers) or the "white collar exemption." These exemptions include; executive, administrative, professional, outside sales and computer employees.
The DOL proposed rule would raise the minimum threshold to approximately $50,440 annually ($970) per week in 2016. This new proposed level is equal to the 40
percentile of weekly earnings for full-time salaried workers. The threshold will be indexed to maintain the salary threshold at the 40
percentile. The DOL estimated that approximately 4.6 million employees that are currently exempt based on the $23,660 threshold, will become eligible for overtime under the $50,440 threshold. The rule does not propose changes to the current exemptions, including the "white collar exemption," and the duties test used to determine the "white collar exemptions." The rule does invite comment on these exemptions specifically, which raises concerns that the exemptions could be changed in the final rule.The regulations are open for public comment until September 4, 2015. NPMA is working with a broad coalition of industry groups to extend the comment period and communicate the negative implications of the proposed rule to both the legislative and executive branches.
EPA Defines "Waters of The U.S." Under the Clean Water Act
On June 29, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers released the final Clean Water rule (final rule). The final rule broadly defines waters of the U.S. (WOTUS) and expands those waters that fall within the federal government's regulatory jurisdiction pursuant to the Clean Water Act (CWA). The final rule will go into effect August 28, 2015.
The final rule maintains the historic definition of "navigable" waters, including interstate waters and territorial seas and adds tributaries and adjacent waters within the WOTUS definition if they "significantly affect the chemical, physical, or biological integrity of the aforementioned traditional navigable waters." Tributaries are identified by evidence of flowing water such as a tidemark or bank, while adjacent waters work in conjunction as part of a network with other waters e.g.; wetlands, ponds and lakes.
The final rule specifically includes language that would maintain the current status quo concerning the National Pollution Discharge Elimination System (NPDES). NPDES is a national permit program that regulates the point source discharge of pollutants and chemicals into waters of the U.S. EPA has delegated NPDES authority to the states; currently 46 of the 50 states regulate NPDES permits independent of the EPA.
The rule undoubtedly expands the definition of WOTUS which expands regulatory oversight and burdens on industry. NPMA does not support regulations that potentially limit PMP tools, increase burdens or consume resources. NPMA does not anticipate that the final rule will have a significant impact on PMPs.
Currently, NPDES permits are required for the application of residual pesticides directly to waters of the U.S. to prevent mosquitos and flying insects. Increased reporting requirements for applications are generally only triggered after applications directly to WOTUS exceeds the 6400 acre annual threshold. The definition of WOTUS has expanded, but the traditional practices of PMPs have not changed. The final rule does not change the NPDES permitting, which will continue to enable the application of pesticides directly to waters, while FIFRA remains the dominant regulatory authority for the application of pesticides.
The Republican controlled Congress has proposed several bills (S. 1140, H.R. 1732 and H.R. 897) and several Appropriations riders in an effort to block the implementation of WOTUS.
The President has indicated he would veto any legislation that reached his desk which would limit or alter the WOTUS rule, and it is very unlikely a 2/3rd majority can be reached to override the veto. In addition to legislation, several states and industry groups have filed law suits in Federal District Courts to block the implementation of WOTUS, at this stage it is unclear whether the rule will go into effect in August 2015, NPMA is continually monitoring the issue.
EPA Settlement in California Endangered Species Case
On June 23, the U.S. Environmental Protection Agency (EPA) published a settlement agreement reached in Center for Biological Diversity v. EPA. This case focused on EPA's alleged violation of the Endangered Species Act (ESA) and sought usage prohibitions and restrictions on numerous EPA registered products used by the pesticide industry. A previous court order placed interim use restrictions on 75 pesticides in the San Francisco Bay Area until EPA and the U.S. Fish & Wildlife Services (the Services) completed effect determinations and consultations. Currently, the EPA and the Services are in the process of making final determinations on 59 of the 75 pesticides, while 16 products remain in limbo according to the settlement agreement. The proposed settlement would amend the previous order and would require EPA to make nation-wide effect determinations for atrazine, simazine, propazine and glyphosate, instead of completing effects and consultations on the remaining 16 pesticides for which EPA had not begun effect determinations.
NPMA formerly requested EPA to lift the interim use limitations on the 16 pesticides where a determination has been made, and further requested the interim use limitations lifted on the remaining 59 pesticides where a "not likely to adversely affect determination has been made."
To read the full text of the submitted comments click here.