Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 70625 

68SCAQMD Final Staff Report, 9 and 10. 

emissions reductions from the 

provision. 

C. Public Comment and Proposed 

Action 

As authorized in section 110(k)(3) of 

the Act, the EPA proposes to approve 

the submitted rule. The EPA concludes 

that, while SCAQMD Rule 2305 does 

not meet all the evaluation criteria for 

enforceability, we are proposing 

approval because the submitted rule is 

not a required SIP element and would 

strengthen the SIP. In light of the 

deficiencies identified above, however, 

the EPA concludes that the submitted 

rule should not be credited in any 

attainment and rate of progress/ 

reasonable further progress 

demonstrations. 

We will accept comments from the 

public on the proposed action, the 

rationale and basis for the proposed 

action, and other relevant matters until 

November 13, 2023. If the EPA takes 

final action to approve the submitted 

rule, the final action will incorporate 

this rule into the federally enforceable 

SIP. 

III. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

SCAQMD Rule 2305, adopted on May 7, 

2021, that establishes an ISR program 

for certain warehouse owners and 

operators, as described in section I of 

this preamble. The EPA has made, and 

will continue to make, these materials 

available through https://

www.regulations.gov and at the EPA 

Region IX Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, the EPA’s role is to 

approve State choices, provided that 

they meet the criteria of the Clean Air 

Act. Accordingly, this proposed action 

merely proposes to approve State law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993), 13563 (76 FR 3821, 

January 21, 2011) and 14094 (88 FR 

21879, April 11, 2023); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act. 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

Feb. 16, 1994) directs Federal agencies 

to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The SCAQMD did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. However, the Community 

Steering Committees for four 

environmental justice communities 

admitted into the State’s AB 617 

program in the affected area requested 

development of a warehouse ISR rule 

due to concerns regarding air pollution 

impacts from trucks and DPM.68 The 

EPA did not perform an EJ analysis and 

did not consider EJ in this action. Due 

to the nature of the action being 

proposed here, this proposed action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. Consideration of EJ is not required 

as part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving environmental justice for 

people of color, low-income 

populations, and Indigenous peoples. 

Lastly, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where the EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: October 5, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–22518 Filed 10–11–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 152 

[EPA–HQ–OPP–2023–0420; FRL–10637–01– 

OCSPP] 

RIN 2070–AL13 

Pesticides; Review of Requirements 

Applicable to Treated Seed and 

Treated Paint Products; Request for 

Information and Comments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advanced notice of proposed 

rulemaking. 

SUMMARY: The Environmental Protection 

Agency (EPA) is soliciting public 


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comments and suggestions about seeds 

treated with a pesticide registered under 

the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA) as well as 

treated paint. The Agency is considering 

whether a rule under FIFRA to regulate 

certain use of treated seed and treated 

paint products or other administrative 

action is appropriate considering 

questions raised by stakeholders. To 

inform this consideration, EPA is 

requesting comment and information 

from all stakeholders on the use and 

usage of treated seed, including storage, 

planting, and disposal of the treated 

seed, and on whether or to what extent 

treated seed products are being 

distributed, sold, and used contrary to 

treating pesticide and treated seed 

product labeling instructions. Similarly, 

EPA is requesting comment from 

stakeholders on the addition of labeling 

requirements on the labels of treated 

paint products and potential language 

that should be included in those labels. 

DATES: Comments must be received on 

or before December 11, 2023. 

ADDRESSES: The docket for this action, 

identified under docket identification 

(ID) number EPA–HQ–OPP–2023–0420, 

is available online at https://

www.regulations.gov. Additional 

instructions on visiting the docket, 

along with more information about 

dockets generally, is available at https:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Susan Bartow, Chemical Review 

Manager, Pesticide Reevaluation 

Division, Office of Chemical Safety and 

Pollution Prevention (7508M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460–0001; phone: 202–566–2280; 

email address: OPPTreatedArticles@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Does this action apply to me? 

You may be affected by this action if 

you manufacture, distribute, sell, treat, 

or use pesticide-treated seed or treated 

paint products. EPA has promulgated 

several exemptions for pesticide 

products of a character not requiring 

regulation under FIFRA, including for 

treated articles and substances; EPA is 

now considering modifying the treated 

article exemption. This exemption is 

codified in 40 CFR 152.25(a). The 

following list of North American 

Industrial Classification System 

(NAICS) codes is not intended to be 

exhaustive, rather it provides a guide to 

help readers determine whether this 

document applies to them. Potentially 

affected entities may include: 

• Pesticide and other agricultural 

chemical manufacturers (NAICS codes 

325320 and 325311). 

• Manufacturers who may also be 

distributors of these products, which 

includes farm supplies merchant 

wholesalers (NAICS code 424910). 

• Retailers of pesticide products 

(some of which may also be 

manufacturers), which includes nursery, 

garden center, and farm supply stores 

(NAICS code 444220). 

• Government establishments 

engaged in regulation, licensing, and 

inspection (NAICS code 926150). 

• Users of treated seed products and 

persons involved in crop production 

(NAICS code 111). 

• Persons involved in support 

activities for crop production (NAICS 

code 1151). 

If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

B. What is the Agency’s authority for 

taking this action? 

This advance notice of proposed 

rulemaking (ANPRM) is issued under 

the authority of FIFRA, 7 U.S.C. 136 et 

seq., particularly FIFRA sections 3 and 

25. FIFRA section 3(a) authorizes EPA 

to regulate the distribution, sale, or use 

of any unregistered pesticide ‘‘[t]o the 

extent necessary to prevent 

unreasonable adverse effects on the 

environment’’ (defined at FIFRA section 

2(bb), in pertinent part, as ‘‘any 

unreasonable risk to man or the 

environment, taking into account the 

economic, social, and environmental 

costs and benefits of the use of any 

pesticide’’). 7 U.S.C. 136a(a) and 

136(bb). Exemptions to the requirements 

of FIFRA are issued under the authority 

of FIFRA section 25(b). Eligible 

products may be exempted from among 

other things, registration requirements 

under FIFRA section 3. In addition, 

FIFRA section 25(a) authorizes EPA to 

‘‘prescribe regulations to carry out the 

provisions of [FIFRA]’’ and FIFRA 

section 25(b) authorizes exemptions 

from, among other things, registration 

requirements under FIFRA section 3. 7 

U.S.C. 136w(a) and (b). 

C. What action is the Agency taking? 

EPA is requesting comments on 

specific issues related to seed treated 

with conventional pesticides (‘‘treated 

seed’’) and paint treated with 

conventional or antimicrobial pesticides 

(‘‘treated paint’’). As to treated seed 

products, EPA has typically included on 

the label of the treating pesticide 

labeling instructions regarding both the 

use of the treating pesticide and the 

distribution, sale, and use of the treated 

seed product, and EPA’s exposure 

assessments and registration decisions 

take those instructions into 

consideration. However, states and 

other stakeholders have raised questions 

about the clarity and enforceability of 

instructions specifically relating to use 

of the treated seed products (i.e., 

instructions relating to the storage, 

planting, and management of the treated 

seed). EPA is seeking to improve 

labeling on both treating pesticide 

labeling and labeling on treated seed 

products (e.g., seed bag tags) during 

registration and registration review 

processes, and is requesting comment in 

response to this FRN on such labeling 

instructions. EPA is also requesting 

comment on use and usage of treated 

seed products, including storage, 

planting, and disposal of treated seed, 

and on whether or to what extent 

treated seed products are being 

distributed, sold, and/or used contrary 

to treating pesticide labeling 

instructions for each separate crop seed 

product. To EPA’s knowledge, treated 

seed are generally being used consistent 

with the instructions on the label of the 

treated seed product. However, the 

Agency is seeking any specific 

information from all stakeholders to 

further inform this issue (e.g., whether 

there are specific cases of use contrary 

to label instructions) before considering 

EPA’s next steps with respect to how 

EPA regulates treated seed products. 

EPA is looking for this information from 

a broad range of stakeholders, including 

those who treat seed in commercial 

facilities or on the farm and those who 

use treated seed products. 

For treated paint products, pesticide 

labeling requirements do not currently 

exist. EPA is exploring the option of 

requiring labeling instructions on 

treated paint products to address 

potential risks of concern for 

professional painters exposed to the 

pesticide in the treated paint without 

the use of personal protection 

equipment (PPE), such as respirators, 

when applying the paint using a spray 

method. Thus far, labeling for treated 

paint has been proposed for only one 

active ingredient (i.e., diuron), but is 

being considered for other active 

ingredients that are registered for use as 

paint preservatives. EPA is requesting 

comments among other things on 

requiring such labeling instructions on 

treated paint containers. 

EPA will consider comments and 

information to determine whether to 

amend its approach for allowing treated 


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seed and treated paint products to be 

wholly exempt from FIFRA 

requirements (e.g., through issuance of a 

rule pursuant to FIFRA section 3(a) to 

regulate distribution, sale, and use of 

treated seed product and/or other 

administrative action). FIFRA section 

3(a) authorizes EPA to limit the 

distribution, sale, or use of an 

unregistered pesticide ‘‘[t]o the extent 

necessary to prevent unreasonable 

adverse effects on the environment.’’ 

Such a FIFRA section 3(a) rule and 

conforming amendments to the treated 

article exemption would be intended to 

allow for enforcement of certain use 

instructions on labeling of treated seed 

and treated paint as an alternative to 

registration of such products. Other 

actions could include amending the 

treated article exemption to limit the 

scope of the exemption so that some 

FIFRA requirements would still apply 

(e.g., requiring seed treatment facilities 

to identify as establishments), and other 

administrative actions could include 

addressing specific use concerns with 

treated seed through further action on 

the specific treating pesticide 

registration (e.g., clarifying labeling 

instructions, reducing or eliminating 

use of the treating pesticide for some 

seed treatments, or including terms and 

conditions on the registration for 

expiration of the use or imposition of 

use restrictions should use contrary to 

labeling instructions be reported). This 

ANPRM initiates the rulemaking 

process by specifically soliciting public 

comments and suggestions about the 

potential FIFRA 3(a) rule and/or other 

related amendments, as it relates to 

treated seed and paint products. 

D. What are the incremental costs and 

benefits of this action? 

This ANPRM does not impose or 

propose any requirements, and instead 

seeks comments and suggestions that 

will help the Agency identify whether 

and to what extent there is a potential 

need for a FIFRA section 3(a) rule and/ 

or other regulatory or administrative 

action. If EPA decides to propose 

changes to the regulations, it will 

conduct the appropriate assessments of 

the costs and benefits of those changes 

and provide opportunities for further 

public comment. 

E. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. 

Do not submit CBI to EPA through 

https://www.regulations.gov or email. If 

you wish to include CBI in your 

comment, please follow the applicable 

instructions at https://www.epa.gov/ 

dockets/commenting-epa-dockets#rules 

and clearly mark the part or all of the 

information that you claim to be CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for preparing your comments. 

When preparing and submitting your 

comments, see the commenting tips at 

https://www.epa.gov/dockets/

commenting-epa-dockets. 

II. Background 

A. Brief Summary of EPA’s Registration 

Process for Pesticides 

Applications for registration of a 

pesticide may be submitted to EPA and 

must meet the requirements in FIFRA 

sections 3(c) and 33. 7 U.S.C. 136a and 

136w–8. Those requirements include, 

among other things, submission of 

complete labeling of the pesticide, 

including claims made for the pesticide 

and instructions on use; complete data 

in support of that registration request; 

and requisite fees in support of that 

application. 7 U.S.C. 136a(c); 7 

U.S.C.136a(b); and 7 U.S.C. 136w–8; see 

also, 40 CFR part 152 for application 

procedures and part 158 for data 

requirements. FIFRA section 3(c)(4) 

requires EPA to issue a Federal Register 

notice and opportunity for comment in 

relation to ‘‘each application for 

registration of any pesticide if it 

contains any new active ingredient or if 

it would entail a changed use pattern.’’ 

7 U.S.C. 136a(c)(4). See also 40 CFR 

152.105. 

To grant a pesticide registration, 

FIFRA requires EPA to consider 

whether the pesticide meets the FIFRA 

standard that use of the pesticide has no 

‘‘unreasonable adverse effects’’ to 

human health and the environment. 7 

U.S.C. 136a(c)(5). FIFRA section 2(bb) 

defines ‘‘unreasonable adverse effects 

on the environment’’ to mean, among 

other things, ‘‘any unreasonable risk to 

man or the environment, taking into 

account the economic, social, and 

environmental costs and benefits of the 

use of any pesticide’’ or ‘‘a human 

dietary risk from residues that result 

from a use of a pesticide in or on any 

food inconsistent with the standard 

under section 408 of the Federal, Food, 

Drug, and Cosmetic Act’’ (FFDCA). 7 

U.S.C. 136(bb). EPA is required to 

review each pesticide registration every 

15 years to determine whether the 

pesticide continues to satisfy the FIFRA 

standard for registration. 7 U.S.C. 

136a(g) and 40 CFR Part 155, subpart C. 

It is a violation under FIFRA to sell 

or distribute an unregistered pesticide 

or to use a registered pesticide in a 

manner inconsistent with its labeling. 7 

U.S.C. 136j(a)(1)(A) and 136j(a)(2)(G). 

FIFRA section 12 does not make it a 

violation to use an unregistered 

pesticide. However, under FIFRA 

section 3(a), EPA may, by regulation, 

impose limits on the distribution, sale, 

and use of any pesticide that is not 

registered ‘‘to the extent necessary to 

prevent unreasonable adverse effects on 

the environment,’’ and compliance with 

such regulation is enforceable under 

FIFRA section 12(a)(2)(S). 7 U.S.C. 

136a(a) and 136j(a)(2)(S). 

B. Background on the Treated Article or 

Substance Exemption 

FIFRA section 25(b)(2) provides that 

the Administrator may, by regulation, 

exempt from the requirements of FIFRA, 

including the registration requirements, 

any pesticide which the Administrator 

determines to be of ‘‘a character which 

is unnecessary’’ to be subject to FIFRA 

‘‘in order to carry out the purposes’’ of 

FIFRA. 7 U.S.C. 136w(b)(2). Several 

exemptions under FIFRA section 

25(b)(2) were adopted in 1988 and 

included a ‘‘treated articles and 

substances’’ exemption at 40 CFR 

152.25(a). 

The regulation at 40 CFR 152.25 

provides that ‘‘the pesticides or classes 

of pesticides listed in this section have 

been determined to be of character not 

requiring regulation under FIFRA and 

are therefore exempt from all provisions 

of FIFRA when intended for use, only 

in the manner specified.’’ The 

regulation in 40 CFR 152.25 identifies 

the types of pesticides and conditions 

applicable for an exemption to apply. 40 

CFR 152.25(a) identifies treated articles 

or substances and defines them as ‘‘an 

article or substance treated with, or 

containing, a pesticide to protect the 

article or substance itself (for example, 

paint treated with a pesticide to protect 

the paint coating, or wood products 

treated to protect the wood against 

insect or fungus infestation), if the 

pesticide is registered for such use.’’ 

It has been EPA’s longstanding 

position that FIFRA section 25(b)(2) 

authorized the 1988 final rule 

exempting pesticide-treated articles or 

substances because EPA’s assessment of 

the treating pesticide comprehensively 

addresses the use of and exposure to the 

treating pesticide and to the article or 

substance that is permissibly treated 

and distributed, sold, and used 

consistent with labeling instructions. 

The FIFRA finding to grant the 


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registration or continue the registration 

of the pesticide is based on that 

assessment, which again addresses the 

risks from use of the treating pesticide 

and use of the treated article or 

substance. No new assessment or risk 

finding is necessary for the exemption 

to apply and no new FIFRA section 

25(b)(2) finding is required for each and 

every article or substance treated. 

Rather, once a pesticide is registered 

under FIFRA for use in treating an 

article or substance, the only conditions 

applicable to a determination as to 

whether the treated article exemption 

applies to the article or substance 

treated by that pesticide are those stated 

in the regulatory text at 40 CFR 

152.25(a). 

It has also been EPA’s longstanding 

position that treated seed products 

meeting the regulatory conditions at 40 

CFR 152.25(a) are exempt from FIFRA 

requirements. Those conditions include 

that a pesticide ‘‘registered for such 

use’’ is used, which EPA has interpreted 

to require compliance with labeling 

instructions relating to distribution, 

sale, and use of the pesticide registered 

under FIFRA to treat seed and the 

distribution, sale, and use of the treated 

seed product itself. If distribution, sale, 

and/or use of the treating pesticide or 

treated seed product is not consistent 

with such labeling for the treating 

pesticide or treated seed product, then 

the ‘‘registered for such use’’ criterion is 

not met and the exemption does not 

apply. For example, if the treating 

pesticide requires that the treated seed 

bag tag include specific labeling 

information and instructions, but such 

bag tag does not include the required 

labeling or instructions, the ‘‘registered 

for such use’’ condition is not met. In 

such a case, the exemption does not 

apply and the treated seed product must 

be registered under FIFRA and must 

comply with other FIFRA requirements, 

such as the requirement in FIFRA 

section 7 to register the establishment in 

which the pesticide is produced and the 

requirements in FIFRA section 17(c) and 

19 CFR 2.110 through 2.117 to file an 

EPA Notice of Arrival of Pesticides and 

Devices (EPA Form 3540–1) or its 

electronic equivalent for importation of 

treated seed product (Ref. 1). Similarly, 

if the treated seed product is not used 

consistent with the instructions on 

treating pesticide labeling as 

communicated on the seed bag tag, the 

condition that a pesticide ‘‘registered for 

such use’’ is not met and use of the 

treated seed product would be use of an 

unregistered pesticide. The required 

labeling information and instructions 

are helpful to farmers who use the 

treated seed and may be considered in 

EPA risk assessments. As a result, 

compliance with the requirements for 

such labeling and the instructions 

relating to distribution, sale, and use 

may be necessary to protect against 

unreasonable risks to the environment. 

A more thorough discussion of EPA’s 

approach for evaluating pesticides for 

use in treating seeds, which includes an 

evaluation of the use of the treated seed 

product itself, and the treated article 

exemption is discussed in EPA’s 

Treated Seed Petition Response which 

is discussed in the next section. 

C. Background on the Petition Relating 

to Treated Seed and EPA’s Response 

In April 2017, the Center for Food 

Safety (CFS or the Petitioner) filed a 

petition with EPA seeking a rulemaking 

or a formal agency interpretation 

relating to pesticide treated seed 

(hereinafter Treated Seed Petition) (Ref. 

2). Specifically, CFS petitioned EPA to 

take the following actions: (1) Amend 40 

CFR 152.25(a) to clarify that it does not 

apply to seeds for planting coated with 

systemic pesticides, such as the 

neonicotinoids, that are intended to kill 

pests of the plant instead of pests of the 

seed itself; (2) Alternatively, publish a 

final, formal, Agency interpretation in 

the Federal Register stating that EPA 

interprets the exemption in 40 CFR 

152.25(a) not to apply to seeds for 

planting coated with systemic 

pesticides, such as the neonicotinoids, 

that are intended to kill pests of the 

plant instead of pests of the seed itself; 

and (3) Aggressively enforce FIFRA’s 

numerous pesticide registration and 

labeling requirements for each separate 

crop seed product that is coated with a 

neonicotinoid or other systemic 

insecticidal chemical. 

EPA responded to the petition on 

September 27, 2022 (hereinafter Treated 

Seed Petition Response) (Ref. 1). In that 

response, EPA explained the history of 

the regulatory treated article exemption, 

the comprehensive nature of 

assessments of pesticides that are 

intended for use in treating seeds which 

includes assessment of the impact with 

use of the treated seed, and the 

regulatory conditions for the article 

exemption to apply. EPA noted that if 

the conditions for the exemption are 

met, the exemption applies; no new 

assessment or risk finding is necessary 

and no new FIFRA section 25(b)(2) 

finding specific to the article or 

substance treated is required. EPA also 

noted that it has been reviewing and 

will continue to review labeling 

instructions for pesticides registered for 

seed treatment use(s) in registration and 

registration review to verify the 

completeness of these instructions for 

both use of the treating pesticide and 

the distribution, sale, and use of the 

treated seed products. Finally, EPA 

acknowledged that use of the treated 

seed product in a manner contrary to 

labeling instructions is not generally 

enforceable under FIFRA. As a result, 

while the Agency did not grant the 

petition requests, it noted that it intends 

to issue this ANPRM to seek additional 

information on pesticide seed treatment, 

including use and usage information 

and whether treated seed products are 

being used contrary to labeling 

instructions, and to explore the option 

of issuing a rule pursuant to FIFRA 

section 3(a) to regulate the use of treated 

seed products. As explained in the 

petition response, plant-incorporated 

protectants (PIPs) are not subject to the 

treated article exemption for reasons 

articulated at 40 CFR 174.1 (because the 

characteristics of PIPs ‘‘distinguish them 

from traditional chemical pesticides,’’ 

PIPs are subject to ‘‘different regulatory 

requirements, criteria, and procedures 

than traditional chemical pesticides’’). 

As a result, PIPs are not within the 

scope of this ANPRM. For further 

information, please see docket ID 

number EPA–HQ–OPP–2018–0805 at 

https://www.regulations.gov/docket/ 

EPA-HQ-OPP-2018-0805. 

D. State FIFRA Issues Research and 

Evaluation Group (SFIREG) Treated 

Seed Issue Paper 

In August 2022, SFIREG provided 

EPA with the ‘‘Treated Seed Issue 

Paper’’ for consideration and response 

(Ref. 3). Shortly following the submittal 

of this issue paper by SFIREG, EPA 

released the Treated Seed Petition 

Response discussed in Unit II.C., which 

addressed many of the issues raised in 

the SFIREG issue paper in full or in 

part. In June 2023, the Agency 

responded to the SFIREG issue paper, 

based on its understanding of the issues 

that were raised (Ref. 4). Part of that 

response included EPA’s intention to 

include in this ANPRM the issues that 

were raised and to particularly focus on 

those not fully addressed in the Treated 

Seed Petition Response. Some of the 

issues raised in the SFIREG issue paper 

that are included in this ANPRM 

include use of treated seed products and 

available data systems to track the active 

ingredients used for seed treatments, 

change in use patterns of other 

pesticides due to availability of treated 

seeds, and label language on seed 

treatment products and treated seed 

products (e.g., seed bag tags). Other 

issues raised in the SFIREG issue paper 

that were addressed in the Treated Seed 

Petition Response, some of which have 


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requests for comment discussed in Unit 

III., include assessments of treated seed 

and effects to different taxa, including 

pollinators, non-target terrestrial and 

aquatic organisms, and human health. 

E. Background on Treated Paint 

Paint and coating products are often 

treated with pesticides for a variety of 

reasons, such as to increase the 

longevity of the products by controlling 

microbial contamination of the paint 

applied to a surface. Pesticide labeling 

requirements for treated paint or 

coatings do not currently exist. 

However, recent EPA risk assessments 

on paint preservative pesticides suggest 

that there may be risks of concern for 

professional painters exposed to treated 

paint without use of PPE such as 

respirators when applying paint using a 

spray method. The concept of adding 

labeling requirements for treated paint 

on the paint container has, thus far, only 

been proposed for one active ingredient 

(i.e., Diuron Proposed Interim 

Registration Review Decision Case 

Number 0046) but is being considered 

for many other active ingredients that 

are registered for use as paint 

preservatives and using the spray 

method of application. The Agency 

believes that the proposed labeling 

requirements for paint containers would 

help occupational users of paint, 

particularly those using sprayers to 

apply the paint, mitigate any potential 

risks of concern. EPA notes that similar 

risk mitigation measures are in the 

process of being implemented in Canada 

by the Pest Management Regulatory 

Agency. 

III. Request for Comment and 

Information 

A. General 

EPA invites public feedback on the 

questions posed in this document 

regarding use and usage of treated seed 

products and whether there are cases of 

use contrary to treating pesticide or 

treated seed product (e.g., seed bag tag) 

labeling instructions. EPA also invites 

comments on whether the Agency 

should take action through a potential 

FIFRA 3(a) rule and conforming 

amendments and/or other regulatory or 

administrative action to address 

concerns with the potential for 

noncompliance with labeling 

instructions. EPA is also requesting 

public feedback regarding similar 

questions with respect to treated paint. 

Please provide EPA with your thoughts 

as well as a rationale supporting your 

suggestions. If you can, provide 

examples or describe situations. 

Commenters are encouraged to present 

any data or information that should be 

considered by EPA during its 

consideration of these issues with 

treated seed and treated paint products 

and for the potential development of a 

section 3(a) rule and/or other regulatory 

or administrative action. EPA is not 

seeking comment to this docket on EPA 

assessments to support any particular 

registration or registration review 

decision. Such comments must be 

timely submitted to the dockets for 

those actions. 

As explained in the Treated Seed 

Petition Response, EPA’s assessments 

for treating pesticides are based on all 

reasonably available and reliable 

information, including exposure 

assessments based on the treating 

pesticide labeling instructions defining 

the maximum amount of active 

ingredient that may be used on the seed. 

These assessments and labeling 

instructions are subject to public 

comment during the registration and 

registration review processes. In 

addition, outside of the registration and 

registration review processes, EPA 

recently solicited further public 

comment on proposed updates to all 

treated seed labeling on treating 

pesticide products and on treated seed 

products, to reduce exposures to nontarget organisms, which might include 

federally listed threatened or 

endangered species. EPA has updated 

the labeling language for such products 

for future active ingredients undergoing 

registration review in response to 

comments and in anticipation of seeking 

further comment in response to this 

ANPRM. In addition, its public 

processes under registration and 

registration review for specific pesticide 

products intended for use in treating 

seed, EPA will continue to consider 

further updates to treated seed product 

label language to take into account 

additional public comments and new 

information, if any submitted. 

This ANPRM is a separate effort to 

consider whether to amend its approach 

for regulation of treated seed products 

(e.g., through issuance of a rule 

pursuant to FIFRA section 3(a) to 

regulate distribution, sale, and use of 

treated seed products and/or other 

regulatory or administrative action). 

This ANPRM is also intend to explore 

the option of adding instructions on the 

labels of pesticides used to treat paint, 

similar to the approach take for labeling 

of treated seed, and/or whether to 

amend its approach for allowing treated 

paint to be exempt from FIFRA 

requirements (e.g., through issuance of a 

rule pursuant to FIFRA section 3(a) to 

regulate distribution, sale, and use of 

treated seed products and/or other 

regulatory or administrative action). 

B. Specific Topics Related to Treated 

Seed and Paint 

EPA is specifically requesting 

comment and information on the 

following topics: 

• Effectiveness of instructions on 

treated seed product labeling (e.g., on 

the seed bag tags) to mitigate potential 

risks; 

• Use, usage, and tracking of treated 

seed products; 

• Management of spilled or excess 

treated seed; 

• Treated paint; and 

• Administrative action, amendment 

of the treated article exemption, and/or 

FIFRA section 3(a) Rule. 

1. Effectiveness of instructions on 

treated seed product labeling (e.g., on 

the seed bag tags) to mitigate potential 

risks. 

EPA currently is reviewing labeling 

instructions for pesticides registered for 

seed treatment use(s) in registration and 

registration review. EPA intends to 

ensure that treating pesticide labeling 

instructions include: (1) the requirement 

that seed bag tag labeling accompany 

the treated seed when distributed and 

sold; (2) that such labeling include 

specified clear and effective instructions 

on use of the treated seed, including the 

name of the active ingredient and 

pesticide product used (including the 

EPA product registration number), and 

instructions on the storage, planting, 

and/or management of spilled or excess 

treated seed, as appropriate; and, (3) 

that the distribution or sale of the 

treated seed products without such 

labeling is the distribution or sale of an 

unregistered pesticide. 

The Treated Seed Petition raised a 

number of issues with the potential for 

harm from the planting of treated seed 

or with the planting process used to 

plant treated seed. The Treated Seed 

Petition Response discusses each of the 

issues, including how EPA assessments 

of the treating pesticide address these 

issues. The response also discusses the 

regulatory conditions for application of 

the treated article exemption and how 

those conditions apply to treated seed 

products, including, among other 

things, the need for use of the treating 

pesticide and treated seed products to 

be consistent with the treating pesticide 

and related seed product labeling 

instructions. Examples of such labeling 

are in the document ‘‘Labeling 

Instructions for Pesticide-Treated Seed 

and Pesticide-Treated Paint Products’’ 

(referred to as the ‘‘Labeling 

Instructions’’ document from hereon) 

(Ref. 5), which can be found in the 


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docket EPA–HQ–OPP–2023–0420. For 

example, the specified labeling language 

on storage includes instructions on 

storing away from food and feedstuffs 

and not allowing children, pets, or 

livestock to have access to treated seed. 

Other instructions on use include, for 

example, the prohibition on use of the 

treated seed for food or feed; 

instructions detailing planting methods 

or management of spilled or excess seed 

to ensure reduced risk, for example, to 

pollinators and aquatic environments; 

and instructions on managing the 

potential for dusts generated from the 

abrasion of treated seed coatings during 

planting (i.e., dust-off). 

EPA is requesting comment on the 

following: 

• Labeling instructions presented in 

the Labeling Instructions document 

(Ref. 5) and whether there are any 

necessary improvements to such 

language. 

• Are the examples of current 

instructions for storage, planting, and 

management of treated seed clear, 

generally achievable, etc.? 

• Are there other recommendations to 

increase the clarity of instructions on 

treated seed product (i.e., seed bag tag 

labeling) for the end user? 

• Are there additional or alternative 

instructions that would be effective in 

reducing dust-off? 

2. Use, usage, and tracking of treated 

seed products. 

EPA’s exposure estimates reflect both 

use and usage information. Use 

information is focused on the maximum 

amount of particular pesticide that may 

be applied based on the treating 

pesticide labeling instructions (e.g., total 

active ingredient that may be applied to 

the seed). Exposure estimates are also 

based on the modeling parameters for 

the assessment (e.g., the seeding rate for 

a particular crop per acre). For FIFRA 

ecological assessments of seed treatment 

uses, EPA assumes that the maximum 

amount of the pesticide is available as 

if the maximum permitted amount of 

the pesticide had been directly applied 

to the soil as shown in the T-Rex User 

Guide (Ref. 6). The term ‘‘usage’’ has 

been used broadly to refer to 

documented applications of a pesticide, 

including information such as actual 

application rates and timing, and spatial 

distribution of applications (usually 

based on survey data) (Ref. 7 and Ref. 

8). Usage information is typically used 

to allow assessments to be more precise 

as compared to using worst case 

assumptions (e.g., on the percentage of 

a particular crop that is treated with 

every pesticide registered for use on that 

crop). EPA does not have current and 

reliable information quantifying the 

total pounds of active ingredient used to 

treat seed or the location and the 

number of acres planted with treated 

seed. Kynetec USA, the primary source 

of agricultural usage data for seed 

treatment in the years 2005–2014, 

stopped providing seed treatment 

estimates and supporting use of the 

existing 2005–2014 estimates in 2015 

due to concerns about the reliability of 

those data (Ref. 7). However, 

applications of pesticides to treat seed 

may be generally characterized as 

common for a wide variety of crop seeds 

and seed pieces for planting based on 

agricultural extension services’ 

recommendations and other 

information. EPA assessments detail the 

basis for use and usage information and 

such details are subject to public 

comment during the registration and 

registration review processes and the 

Agency continues to work to identify, 

investigate, and procure additional 

sources of usage data for seed 

treatments. As suitable data are 

procured and determined to meet EPA 

data quality standards, they will be 

integrated into usage analyses to help 

inform risk assessments (Ref. 9). 

The Treated Seed Petition noted the 

lack of pesticide usage data collected by 

EPA but acknowledged that one EPA 

assessment assumed nearly 100% of one 

crop is treated with the referenced 

pesticide and in another case identified 

the percentage of the pesticide use that 

is on treated seed. In response, EPA 

acknowledged the lack of usage data but 

more recently, data from two sources 

(i.e., Ben Kirk and Kline and Company) 

were identified, procured, and 

determined to meet EPA data quality 

standards. Data from those sources have 

been evaluated and will be integrated 

into usage analyses to inform risk 

assessments as appropriate. 

The SFIREG issue paper sought 

additional information on the general 

use of treated seed and data systems to 

track use of active ingredients to treat 

seed. The SFIREG issue paper also 

sought more information on the impact 

of the use of treated seed on the other 

types of applications such as soil or 

foliar applications (i.e., replacement and 

reduction in use of other types of 

applications). Finally, the SFIREG issue 

paper noted that there is no clear 

mechanism to address interstate 

commerce of treated seed and thus no 

means for a comprehensive state review 

of environmental impacts of seeds that 

could be legally planted in that state. 

The paper notes that state regulation of 

treated seed would conflict with the 

regulatory exemption for treated 

articles, and thus one state is 

considering prohibiting use of certain 

types of treated seed. 

EPA is seeking comment on the 

certain issues summarized below as 

raised in the SFIREG issue paper and 

the Treated Seeds Petition. 

• Information on the use and usage of 

treated seed. 

• Given the scope of EPA 

assessments, whether the potential for 

tracking of treated seed distribution, 

sale, and/or use would provide any 

meaningful improvements in the 

assessment of the risks of pesticides 

used to treat seeds. 

• Are there available data detailing 

the replacement or reduction of other 

types of pesticides with increasing use 

of treated seed, since this issue is of 

interest to states and other stakeholders? 

EPA would normally address 

replacement and use reduction on an 

individual chemical basis, taking into 

account alternative control strategies to 

seed treatment (e.g., application of a 

pesticide at-plant (soil level) or 

immediately upon germination (foliar)) 

when there are risks associated with the 

treated seed (Ref. 10). 

• Are there additional data sets 

available that may serve to complement 

the recently acquired data sources (e.g., 

data that trade organizations might have 

that can provide a better picture of how 

much of an active ingredient is used in 

seed treatment)? 

• EPA requests information on the 

volume of imported treated seed 

products and whether amending the 

treated article exemption so that 

importers of treated seed products must 

comply with FIFRA section 17(c) and 19 

CFR 12.110 through 2.117, including 

filing an EPA Notice of Arrival of 

Pesticides and Devices (EPA Form 

3540–1) or its electronic equivalent 

would assist in tracking the import and 

distribution of treated seed products 

(e.g., to track compliance with the 

exemption conditions). 

• Should the treated article 

exemption be amended so that treated 

seed manufacturers would be subject to 

FIFRA section 7 registration and 

reporting requirements (Ref. 11)? Would 

this information help track use of seed 

treatment pesticides or provide any 

helpful treated seed usage information? 

3. Management of spilled or excess 

treated seed. 

EPA included additional labeling 

instructions for management of spilled 

and excess treated seed in the 

registration review Proposed Interim 

Decisions (PIDs) and Interim Decisions 

(IDs) of several chemicals (see for 

example Ref. 12 and Ref. 13) as 

appropriate. This labeling included 

instructions on the collection and burial 


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of spilled treated seed, incorporation of 

treated seed into soil, limiting the 

broadcast planting of treated seed, and 

proper disposal of excess treated seed. 

In 2022, EPA requested additional 

comment on the labeling instructions as 

part of the ESA Workplan Update (Ref. 

14) to reduce the potential for exposures 

to non-target organisms from spilled 

treated seed or disposal of excess treated 

seed, which might include federally 

listed threatened/endangered species. 

Comments on the ESA Workplan 

Update (Ref. 14) raised concerns with 

disposal of treated seed, particularly for 

use in ethanol production. The 

proposed labeling instructions that are 

presented in Labeling Instructions 

document (Ref. 5) are intended to 

address concerns relating to disposal of 

treated seed, exposure to wildlife, 

contamination of ground and surface 

water, sufficiency of current disposal 

instructions on both the registered 

treating pesticide product and treated 

seed product labeling, and disposal by 

way of ethanol production (for oil seed 

crops such as corn and soybeans). The 

concern regarding disposal of treated 

seeds stems from the possibility of a 

buildup of pesticide material as a 

byproduct of ethanol production. 

The Agency previously approved 

labels for oil seed crops that allowed for 

the use of excess treated seeds in 

ethanol production. EPA became aware 

of the potential for the use of excess, 

unmarketable treated seeds of oilseed 

crops in ethanol production and was 

concerned about the potential for 

pesticide residues found in the ethanol 

production by-products getting into 

food or feed. The byproducts of the 

process (e.g., wet distiller’s grain or 

spent mash) can be used as livestock 

feed or applied as fertilizer but may also 

contain pesticide residues. To mitigate 

the risk, EPA allowed the use of treated 

seeds of oilseed crops for ethanol 

production but with the following 

conditions: (1) Byproducts are not used 

for livestock feed; and (2) No 

measurable residues of pesticide remain 

in ethanol byproducts that are used in 

agronomic practice. However, these 

measures may not be sufficient to 

protect against pesticide buildup after 

ethanol production. To address this 

concern, the Agency’s proposed labeling 

instructions include language to 

prohibit the use of excess treated seeds 

for ethanol production (see Ref. 5). 

EPA requests comment on the 

following: 

• Are additional instructions for 

collection of spilled seed needed? 

• What is currently done with excess 

treated seed if not used in a planting 

season? For example, what do farming 

operations do with excess seed; can that 

seed be returned to the distributor or 

seed company? 

• Similarly, what do distributors and 

seed companies do with excess treated 

seed that is not sold or delivered to or 

is returned from farming operations? 

4. Treated paint. 

Paints and coatings are often treated 

with pesticides for a variety of reasons, 

such as to increase the longevity of the 

products by controlling microbial 

contamination of the paint applied to a 

surface. Pesticide labeling requirements 

for treated paint do not currently exist. 

However, recent EPA risk assessments 

on paint preservative pesticides suggest 

that some treated paints may pose risks 

of concern to professional painters 

when applying paint using a spray 

method, without use of PPE such as 

respirators. The concept of adding 

labeling requirements for treated paint 

on the paint container has, thus far, only 

been proposed for one active ingredient 

(i.e., Diuron Proposed Interim 

Registration Review Decision Case 

Number 0046) but is being considered 

for many other active ingredients that 

are registered for use as paint 

preservatives (Ref. 15). The Agency 

proposed labeling requirements for 

paint containers that would help 

occupational users of paint, particularly 

those using sprayers to apply the paint, 

to potentially mitigate the identified 

risks of concern. 

EPA assesses risks to Do-It-Yourself 

painters as well as professional painters 

(i.e., those who provide the service of 

applying paint to the interior and 

exterior of homes, businesses, other 

building projects, machinery, and 

industrial equipment for compensation) 

from use of treated paint, and such 

assessments are based on long-standing 

EPA modeling parameters. An example 

includes the default value that 5 gallons 

of paint (applied by a brush or roller) or 

50 gallons of paint (applied by airless 

sprayer) are typically used daily by a 

professional painter. For Do-It-Yourself 

painters, the default value is 2 gallons 

(brush or roller) or 15 gallons (airless 

sprayer) of paint are typically used 

daily. EPA has used these values for 

many years. These values are used to 

estimate exposure from treated paint. 

Based on that exposure and the severity 

of inhalation and dermal hazard of the 

chemical, EPA determines the level of 

risk posed by those paints. EPA requests 

specific comment on the topics 

discussed further in this unit. 

a. Implementation and enforcement 

concerns. 

EPA is considering requiring certain 

treated paint products to include 

labeling instructions relating to 

precautionary label language and proper 

use. See Ref. 5. Distribution and sale of 

the treated paint products with such 

instructions would be an exempted 

treated substance and thus registration 

of the treated paint would not be 

required. For the exemption to apply, 

and similar to treated seed, the 

registration and labeling for the treating 

pesticide will make clear that specified 

instructions and precautionary language 

must appear on the treated paint 

labeling. If more than one pesticide is 

used to treat the paint, the registration 

and labeling for the treating pesticides 

will also likewise make clear that the 

exemption will only apply if the most 

restrictive label language is used on the 

paint label. If the appropriate 

instructions and precautionary language 

are not on the paint product labeling, 

the treated paint would not qualify as an 

exempt treated article, making it an 

unexempt, unregistered pesticide that 

may not be sold or distributed under 

FIFRA section 3 and subject to 

enforcement under FIFRA section 

12(a)(1)(A). 

EPA is also considering adding 

specific use instructions for professional 

painters based on recent risk 

assessments for paint preservatives that 

have identified risks for professional 

painters. EPA may propose a FIFRA 

section 3(a) rule to apply to certain 

treated paint, making certain use 

instructions enforceable under FIFRA 

section 12(a)(2)(S). Similar to the 

discussion on treated seed, other 

administrative actions may also be 

considered (e.g., limiting or cancelling 

use of specific active ingredients to treat 

paint based on risk assessment). 

EPA requests specific comment on the 

following topics: 

• If EPA were to establish label 

requirements for treated paint products, 

what should be included to increase the 

clarity of the labeling and its safe use for 

the end user and the environment? 

• Is there evidence that the lack of 

label or labeling requirements on treated 

paint has resulted in harm to human 

health or the environment? This may 

include harm experienced by 

professional painters from use of treated 

paint, improper disposal of treated 

paint, etc. This evidence could come in 

the form of work-related treated paint 

accident reports. 

• Would requiring on the treated 

paint label the EPA registration number 

for each treating pesticide and the 

appropriate use instructions relating to 

painter protection be effective in 

reducing the identified risk concerns? If 

not, what additional information or 

requirements should EPA consider? 


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• Should the treated article 

exemption be amended so that paint 

manufacturing establishments 

producing pesticide-treated paint would 

be subject to FIFRA section 7 

registration and reporting requirements 

(Ref. 11)? If so, should the establishment 

registration number be included on the 

label of the treated paint? How many 

paint manufacturers might be subject to 

such a requirement? 

• If EPA were to establish enforceable 

use requirements for professional 

painters using treated paint, what 

additional information or requirements 

should EPA consider in this rulemaking 

to ensure effective enforcement? This 

may include information on additional 

resources, processes, etc. needed by 

states for enforcement. 

b. Importation. 

As noted previously, the condition in 

the exemption that the treating pesticide 

be ‘‘registered for such use’’ specifies 

that the exemption only applies to 

treated paint that is formulated with a 

FIFRA-registered pesticide product. 

EPA requests information on the volume 

of imported treated paint and whether 

amending the treated article exemption 

so that importers of treated paint must 

comply with FIFRA section 17(c) and 19 

CFR 12.110 through 2.117, including 

filing an EPA Notice of Arrival of 

Pesticides and Devices (EPA Form 

3540–1) or its electronic equivalent 

would assist in tracking the import and 

distribution of treated paint (e.g., to 

track compliance with the exemption 

conditions). 

5. Administrative action, amendment 

of the treated article exemption, and/or 

FIFRA section 3(a) rule. 

EPA’s assessments for seed and paint 

treatment uses are comprehensive, and 

EPA processes allow for comment on 

those assessments. As noted in the 

Treated Seed Petition Response, 

amending the regulatory exemption for 

treated articles to require registration of 

pesticide-treated seed where there is 

general compliance with labeling 

instructions for the FIFRA registered 

pesticides and treated seed products 

would provide little to no human health 

or environmental benefits. This is based 

on the comprehensive nature of EPA 

assessments for treating pesticides and 

treated seed and given EPA has no 

information suggesting that users of 

treated seed products are distributing, 

selling, or using the seed products 

contrary to labeling instructions. This is 

the same case for other treated articles 

and substances, including treated paint. 

However, concerns were raised by the 

Treated Seed Petition and the SFIREG 

issue paper regarding a lack of 

enforceability relating to use of treated 

seeds contrary to label instructions and 

possible effects of such use on human 

health and the environment. The same 

concerns also apply to treated paint 

products. Thus, EPA is requesting 

comment from stakeholders on whether 

or to what extent there might be use of 

treated seed and paint products contrary 

to labeling instructions for the treated 

seed and paint. 

EPA will take into consideration 

comments and information submitted in 

response to this ANPRM to determine 

whether to amend its approach for 

regulation of treated seed and treated 

paint (e.g., through issuance of a rule 

pursuant to FIFRA section 3(a) to 

regulate distribution, sale, and use of 

treated seed and paint products and/or 

other regulatory or administrative 

action). FIFRA section 3(a) authorizes 

EPA to limit the distribution, sale, or 

use of an unregistered pesticide ‘‘[t]o the 

extent necessary to prevent 

unreasonable adverse effects on the 

environment.’’ EPA believes a FIFRA 

section 3(a) rulemaking could be a more 

efficient and less resource-intensive 

means to address some of the concerns 

that have been raised by Petitioner and 

states relating to use of the treated seed, 

where there is some indication that 

compliance with such labeling is in 

question. Other regulatory approaches 

could include limiting the scope of the 

exemption so that some FIFRA 

requirements would still apply (e.g., 

requiring seed treatment facilities to 

identify as establishments). Other 

administrative approaches could 

include addressing specific use 

concerns through further action during 

registration review for specific active 

ingredients (e.g., clarifying labeling 

instructions, further reducing or 

eliminating use of the treating pesticide 

for some seed or paint treatments, or 

including further terms and conditions 

on the registration for expiration of the 

use or imposition of use restrictions 

should use contrary to labeling 

instructions be reported). 

EPA requests comment on the 

following: 

• Is a FIFRA section 3(a) rule and/or 

other regulatory or administrative action 

necessary or appropriate to prevent 

unreasonable adverse effects on human 

health and the environment, 

considering the concerns raised 

regarding enforceability of any 

particular type of labeling instructions 

on use of treated seed and paint 

products? Is a FIFRA section 3(a) rule 

and/or other regulatory or 

administrative action the best way of 

ensuring use consistent with 

instructions on the treating pesticide 

labeling relating to use of the treated 

seed or paint? 

• Are there examples of use of treated 

seed contrary to labeling instructions, 

and whether adopting a FIFRA section 

3(a) rule or the other options noted are 

the best means of ensuring appropriate 

use of treated seed? 

• Would there be any impacts that 

might result to states if such a FIFRA 

section 3(a) rule is finalized? Are there 

existing tools that would be impacted, 

or are new ones needed for state 

investigation and enforcement? For 

example, state statutes or rules may 

need to be amended, new standard 

operating procedures developed, 

additional personnel hired, or some 

form of record keeping added. 

• Are there specific examples of 

misuse by seed treatment applicators or 

from on-farm seed treatments and what 

type of evidence has been collected to 

support this claim? 

• What are the enforcement measures 

that are used in regions and individual 

states for misuse of pesticides and are 

there barriers to applying such measures 

to treated articles, such as treated seed 

and treated paint? 

• What are some examples of state 

statutory authority concerning treated 

seed and/or paint, and successful 

enforcement measures that have been 

exercised regarding treated seed and/or 

paint? 

• What are some considerations, 

including enforcement considerations, 

that need to be included in EPA’s 

approach for assessment and 

management of pesticide-treated seed 

and paint? 

C. Potential Environmental Justice 

Concerns 

Under EPA policy, environmental 

justice is ‘‘the fair treatment and 

meaningful involvement of all people 

regardless of race, color, national origin, 

or income, with respect to the 

development, implementation, and 

enforcement of environmental laws, 

regulations, and policies.’’ See https://

www.epa.gov/environmentaljustice. In 

addition, Executive Order 12898 (59 FR 

7629, February 16, 1994), entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations,’’ directs agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

(people of color and/or indigenous 


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peoples) and low-income populations. 

EPA has not identified any such 

disproportionate effects from the 

issuance of this ANPRM as specified in 

Executive Order 12898. This ANPRM 

solicits comments from the public 

regarding pesticides under the treated 

article exemption including treated seed 

and treated paint. The Agency 

welcomes public input on the 

consideration of environmental justice 

concerns in the context of the issues 

raised in this ANPRM. If and when the 

Agency proposes regulatory options 

regarding exemptions under FIFRA or 

the related procedures, EPA will seek 

additional input from the public, as 

appropriate. 

1. Environmental justice concerns for

treated seed. 

It is estimated that there are 2.5–3 

million agricultural workers in the 

United States. The Department of Labor 

conducted a National Agricultural 

Workers Survey in 2019–2020. In this 

survey, more than 2,100 farmworkers 

were interviewed in person. 

Approximately 78% of those workers 

identified themselves as Hispanic and 

62% said that Spanish was the language 

in which they were most comfortable 

conversing. Among U.S.-born 

farmworkers, 32% were Hispanic. Ten 

percent of farmworkers were selfidentified as indigenous. EPA requests 

specific comment on the following 

topic: 

• Are there any sources of data that

could address whether exposure to 

treated seeds may be an environmental 

justice concern (e.g., given the potential 

for language barriers)? 

2. Environmental justice concerns for

treated paint. 

EPA has limited sources of data to 

address whether there could be 

disproportionate impact to certain 

demographics that might be more likely 

to be exposed to treated paint. The 

Bureau of Labor Statistics (BLS) data 

from 2021 include demographics on 

‘‘painting workers’’ and ‘‘painters and 

paperhangers.’’ For both categories, the 

BLS data suggest that the majority of 

workers are Hispanic or Latino. 

According to 2021 U.S. Census data, 

Hispanics/Latinos make up 18.9% of the 

population. However, according to BLS, 

32.3% of ‘‘painting workers’’ and 59.3% 

of ‘‘painter and paperhangers’’ are 

Hispanic or Latino. EPA requests 

specific comment on the following 

topics: 

• Are there any sources of data that

could address whether exposure to 

treated paint may be an environmental 

justice concern? 

• Does either, or both, of the BLS

categories (i.e., painting workers; 

painters and paperhangers) represent 

the type of painter that may be exposed 

to treated paint? 

D. Potential Impacts on Children’s

Health

In addition to the statutory obligations 

in FIFRA and FFDCA to consider 

children’s health in registration 

decisions, EPA’s 2021 Policy on 

Children’s Health (Ref. 16) states that 

protecting children’s health from 

environmental risks is fundamental to 

EPA’s mission because varying 

behavioral and physiological 

characteristics can affect children’s 

exposure and health risks, children’s 

health should be viewed through the 

lens of a sequence of ‘‘lifestages’’ (from 

conception, infancy, early childhood, 

and adolescence through until 21 years 

of age). 

Children may be more susceptible to 

environmental exposures and/or the 

associated health effects, and therefore 

more at risk than adults. These risks 

arise because children generally eat 

more food, drink more water, and 

breathe more air relative to their body 

size than adults do, and consequently 

may be exposed to relatively higher 

amounts of contaminants. Normal 

childhood activity, such as putting 

hands and objects in mouths, playing on 

the ground, or crawling, can result in 

exposures to contaminants that adults 

do not face. In addition, environmental 

contaminants may affect children 

disproportionately because they are still 

developing; for example, their immune 

system defenses are not fully developed, 

and their growing organs are more easily 

harmed. 

The Agency welcomes public 

comment and information regarding the 

consideration of potential children’s 

health concerns in the context of the 

issues raised in this ANPRM. If and 

when the Agency proposes regulatory 

options regarding exemptions under 

FIFRA, other actions or the related 

procedures, EPA will seek additional 

input from the public to facilitate the 

Agency’s consideration of potential 

children’s health concerns related to 

those actions. 

IV. Next Steps

EPA intends to review all the

comments and information received in 

response to this ANPRM, as well as 

previously collected and assembled 

information, to help determine whether 

to propose a FIFRA section 3(a) rule or 

take other regulatory or administrative 

action to adjust its approach for treated 

seed or treated paint. In addition to 

comments received in response to this 

ANPRM, EPA may seek additional 

information from states, industry or 

other stakeholders. Should EPA decide 

to move forward with changes to the 

program, the next step would be to 

identify, develop and evaluate specific 

options, including whether amendment 

to the current regulation in 40 CFR 

152.25(a) is appropriate, and if so, to 

develop a proposed rule for public 

review and comment. During the 

development of the proposed rule, the 

Agency may also engage stakeholders or 

provide other opportunities for public 

engagement and comment before issuing 

a final action. 

V. References

The following is a list of the

documents that are specifically 

referenced in this document. The docket 

includes these references and other 

information considered by EPA, 

including documents that are referenced 

within the documents that are included 

in the docket, even if the reference is 

not physically located in the docket. For 

assistance in locating these other 

documents, please consult the technical 

person listed under FOR FURTHER

INFORMATION CONTACT. 

1. United States Environmental Protection

Agency (USEPA). 2022. EPA Response to

the April 2017 Petition from Center for 

Food Safety and Others Relating to EPA 

Regulation of Pesticide-Treated Seed. 

September 27, 2022. https://

www.regulations.gov/document/EPA– 

HQ-OPP-2018-0805-0104. 

2. Center for Food Safety (CFS) et al. 2017.

Citizen Petition to the United States

Environmental Protection Agency. April 

26, 2017. https://www.regulations.gov/ 

document/EPA-HQ-OPP-2018-0805- 

0002. Federal Register. 83 FR 66260, 

December 26, 2018 (FRL–9987–54). 

3. SFIREG (State FIFRA Issues Research and

Evaluation Group). 2022. SFIREG

Treated Seed Regulation Issue Paper. 

August 31, 2022. 

4. USEPA. 2023. EPA Response to 08/31/

2022—(State FIFRA Issues Research and

Evaluation Group SFIREG) Treated Seed 

Issue Paper. June 28, 2023. 

5. USEPA. 2023. Labeling Instructions for

Pesticide-Treated Seed and PesticideTreated Paint Products. September 2023. 

https://www.regulations.gov (under 

Docket ID No. EPA–HQ–OPP–2023– 

0420). 

6. USEPA. 2012. T–REX Version 1.5 User’s

Guide for Calculating Pesticide Residues

on Avian and Mammalian Food Items. 

March 22, 2012. https://www.epa.gov/ 

pesticide-science-and-assessingpesticide-risks/t-rex-version-15-usersguide-calculating-pesticide#Section2_1. 

7. USEPA. 2019. Assessment of Usage,

Benefits, and Impacts of Potential

Mitigation in Stone Fruit Production for 

Four Nitroguanidine Neonicotinoid 

Insecticides (Clothianidin, Dinotefuran, 

Imidacloprid, and Thiamethoxam). 

December 6, 2019. https:// 


ddrumheller on DSK120RN23PROD with PROPOSALS1
70634 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 

www.regulations.gov/document/EPAHQ-OPP-2011-0865-1178. 

8. USEPA. 2020. Revised Method for 

National Level Listed Species Biological 

Evaluations of Conventional Pesticides. 

March 12, 2020. https://www.epa.gov/ 

endangered-species/revised-methodnational-level-listed-species-biologicalevaluationsconventional#:∼:text=The%20

Revised%20Method%20for%20

National,to%20develop%

20BEs%20for%20pesticides. 

9. USEPA 2022. Response to Public 

Comments Received on Draft Biological 

Evaluations for Imidacloprid, 

Thiamethoxam, and Clothianidin. June 

2022. https://www3.epa.gov/pesticides/ 

nas/final/cloth-imi-thixam-rtc.docx. 

10. USEPA. 2018. Benefits and Impacts of 

Potential Mitigation for Neonicotinoid 

Seed Treatments on Small Grains, 

Vegetables, and Sugarbeet Crops. August 

30, 2018. https://www.regulations.gov/ 

document/EPA-HQ-OPP-2008-0844- 

1622. 

11. USEPA. 2022. Pesticide Establishment 

Registration and Reporting. November 

30, 2022. https://www.epa.gov/ 

compliance/establishment-registrationand-reporting. 

12. USEPA. 2022. Tebuconazole Proposed 

Interim Registration Review Decision 

Case Number 7004. June 30, 2022. 

https://www.regulations.gov/document/ 

EPA-HQ-OPP-2015-0378-0095. 

13. USEPA. 2021. Triticonazole Interim 

Registration Decision Case Number 7036. 

March 17, 2021. https://

www.regulations.gov/document/EPAHQ-OPP-2015-0602-0039. 

14. USEPA. 2022. ESA Workplan Update: 

Nontarget Species Mitigation for 

Registration Review and Other FIFRA 

Actions. November 2022. https://

www.epa.gov/endangered-species/epasworkplan-and-progress-toward-betterprotections-endangered-species. 

15. USEPA. 2022. Diuron Proposed Interim 

Registration Review Decision Case 

Number 0046. April 2, 2022. https://

www.regulations.gov/document/EPAHQ-OPP-2015-0077-0065. 

16. USEPA. 2021. 2021 Policy on Children’s 

Health. October 5, 2021. https://

www.epa.gov/system/files/documents/ 

2021-10/2021-policy-on-childrenshealth.pdf. 

VI. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is not a significant 

regulatory action as defined in 

Executive Order 12866 (58 FR 51735, 

October 4, 1993), as amended by 

Executive Order 14094 (88 FR 21879, 

April 11, 2023), and was therefore not 

subject to a requirement for Executive 

Order 12866 review. 

B. Other Regulatory Assessment 

Requirements 

Because this action does not impose 

or propose any requirements, and 

instead seeks comments and suggestions 

for the Agency to consider in possibly 

developing a subsequent proposed rule, 

the various other review requirements 

in statutes and Executive Orders that 

apply when an agency imposes 

requirements do not apply to this 

ANPRM. Should EPA subsequently 

determine to pursue a rulemaking, EPA 

will address the requirements in the 

statutes and Executive Orders as 

applicable to that rulemaking. 

Nevertheless, the Agency welcomes 

comments and/or information that 

would help the Agency to assess any of 

the following: 

• Potential economic impacts of a 

rulemaking on small entities pursuant to 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601 et seq.); 

• Potential impacts on Federal, state, 

or local governments pursuant to the 

Unfunded Mandates Reform Act 

(UMRA) (2 U.S.C. 1531–1538); 

• Potential federalism implications 

pursuant to Executive Order 13132, 

entitled Federalism (64 FR 43255, 

November 2, 1999); 

• Potential Tribal implications 

pursuant to Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 6, 2000); 

• As discussed in Unit III.C., 

potential human health or 

environmental effects on minority or 

low-income populations pursuant to 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994); 

• As discussed in Unit III.D., 

potential disproportionate 

environmental health or safety effects 

on children pursuant to Executive Order 

13045, entitled Protection of Children 

from Environmental Health Risks and 

Safety Risks (62 FR 19885, April 23, 

1997); 

• Potential availability of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA) (15 U.S.C. 272). 

• Potential energy effects pursuant to 

Executive Order 13211, entitled Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001); and 

• Potential impacts in terms of costs 

and burdens associated with regulation 

options that the Agency may consider in 

developing a proposed rulemaking or 

other requirements, including potential 

activities and burdens associated with 

potential paperwork burdens pursuant 

to the Paperwork Reduction Act (PRA) 

(44 U.S.C. 3501 et seq.). 

The Agency will consider such 

comments and information in 

developing options as it considers 

appropriate steps to address any 

applicable requirements. 

List of Subjects in 40 CFR Part 152 

Administrative practice and 

procedure; Agricultural commodities; 

Environmental protection; Exemptions 

from pesticide regulation; Pesticides 

and pests; Reporting and recordkeeping 

requirements. 

Michael S. Regan, 

Administrator. 

[FR Doc. 2023–22558 Filed 10–11–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2023–0106; 

FF09E21000 FXES11130900000234] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Findings for Two 

Petitions To Reclassify the West Indian 

Manatee 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of petition findings 

and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce 

two 90-day findings on petitions to 

reclassify the West Indian manatee 

(Trichechus manatus), or populations 

thereof, under the Endangered Species 

Act of 1973, as amended (Act). Two 

valid subspecies of the West Indian 

manatee, the Florida manatee 

(Trichechus manatus latirostris) and 

Antillean manatee (Trichechus manatus 

manatus), are currently protected under 

the Act as part of the threatened West 

Indian manatee species-level listing. 

One petition requests the Puerto Rico 

population of the Antillean manatee be 

listed as an endangered distinct 

population segment (DPS) and critical 

habitat be designated for this entity 

under the Act. The second petition 


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