5E-2.014 Sampling of Pesticides: The proposed rule change is being made to update the edition of the Official Methods of Analysis, Association of Official Analytical Chemists from the 15th Edition, 1990 to the 21st Edition, ....

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NOS.:RULE TITLES:

5E-2.014Sampling of Pesticides

5E-2.015Methods of Analyses

5E-2.031Pesticide Registration; Exemptions from Registration; Experimental Use Permits

5E-2.033Organo-Auxin Herbicides: Restrictions and Prohibitions

PURPOSE AND EFFECT: 5E-2.014 Sampling of Pesticides: The proposed rule change is being made to update the edition of the Official Methods of Analysis, Association of Official Analytical Chemists from the 15th Edition, 1990 to the 21st Edition, 2019. This will provide for the most current methods for sampling pesticides.

5E-2.015 Method of Analyses: The proposed rule change is being made to update the edition of the Official Methods of Analysis, Association of Official Analytical Chemists from the 15th Edition, 1990 to the 21st Edition, 2019. This will provide for the most current methods for analyzing pesticides.

5E-2.031 Pesticide Registration; Exemptions from Registration; Experimental Use Permits: The proposed rule changes are being developed to align the rule with changes to 487.041 F.S. made in 2018. The following sentence, “Effective January 1, 2013, all payments of any pesticide registration fees, including late fees, shall be submitted electronically using the department’s Internet website for registration of pesticide product brands” is to be removed.

5E-2.033 Organo-Auxin Herbicides: Restrictions and Prohibitions: Overall the proposed rule changes are being developed to update this rule with the new organo-auxins that have been registered in the state and are not specifically mentioned in the rule and to remove others that are no longer registered in the state. This will help users of this type of herbicides to better identify members of this herbicide group and be aware of the additional restrictions for application that go beyond those of the label. Minor grammar edits and wording are also proposed to improve clarity and intent of the rule, so applicators are less likely to misinterpret and be in violation. Exemptions for specific types of applications where spray drift is not a concern are also proposed, adding an additional tool for weed control that may provide benefits for surface water quality and may be less of a concern for Threatened and Endangered Species and may also be more efficient and economical to the user in the long term than other types of herbicides or control practices.

SUMMARY: Rules 5E-2.014 and 5E-2.015 are being amended to update the reference for the sampling of pesticides, and for the methods of analyses for pesticide formulations from the Official Methods of Analysis, Association of Official Analytical Chemists (15th Edition, 1990) to the Official Methods of Analysis, Association of Official Analytical Chemists (21st Edition, 2019). These proposed rule changes will enable inspectors to have access to the most current methods for sampling pesticides and will enable the laboratory analysts to have access to the most current methods of analysis for pesticide formulations.

Rule 5E-2.031 is being amended to incorporate by reference the Application for New or Amended Pesticide Product Brand Registration Form FDACS 13342 Rev. 08/20. Rule 5E-2.033 is over 30 years old and has served Florida well in limiting spray drift and subsequent damage to adjacent crops and natural areas. The rule was primarily developed to address problems experienced in South Florida due to spray drift of the highly volatile forms of 2,4-D causing damage to vegetable crops. Since the activation of the rule, some of the forms and types of organo-auxins mentioned in the rule are no longer registered in the state and no longer need to be included in the rule. Conversely, new organo-auxin herbicides have been registered in the state and need to be added to the rule to better notify applicators of the additional restrictions required for the application of this herbicide class. The proposed rule changes will also include exemptions for specific applications where spray drift during application is not a concern thus proving additional tools for applicators to control weeds which may be a gain for the state environmentally with respect to surface water quality and reduced impacts to Threatened and Endangered species and may be more efficient and economical for the applicator. Grammar edits and sentence wording are also being proposed to improve the clarity and intent of the rule, so applicators are less likely to misinterpret and be in violation.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed modifications in 5E-2.014, 5E-2.015, 5E-2.031 and 5E-2.033 do not create any new regulatory requirements. There are no regulatory impacts in implementing changes to 5E-2.014 and 5E-2.015 as the changes deal with updating the literature references for sampling and laboratory procedures to be used. There are no regulatory impacts in implementing changes to 5E-2.031 as it reverts to allowing payment of pesticide registration fees by non-electronic forms. Regulatory impacts are minimal in implementing changes to 5E-2.033 with the addition of exemptions for specific applications which removes restrictions from conditions that had no impact on spray drift during application.

The adverse impact or potential regulatory costs of the proposed rule modifications do not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the Department relied upon current and historical regulatory activities conducted and found no basis for increased costs or fees being imposed on pesticide applicators, dealers, or others, by the proposed modifications to this rule.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 487.041, 487.051(1)(b),(2), 487.051, 487.051(2), 487.154, 570.07(23) F.S.

LAW IMPLEMENTED: 487.031(10), (13)(e), 487.041, 487.042, 487.051, 487.051(1)(b), (2) 487.051(2), 487.071(2) F.S.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: James Cooper, PhD, CPSS, Environmental Administrator, Bureau of Scientific Evaluation and Technical Assistance, Pesticide Registration Review Section, [e-mail], Phone: [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5E-2.014 Sampling of Pesticides.

Methods of sampling pesticides shall be those adopted and published in Volume 1, Official Methods of Analysis, Association of Official Analytical Chemists, Chapter 7, pages 1-140 147-231 (21st  15th Edition, 2019 1990,& Supplements 1990-1994).

Rulemaking Authority 487.051(1)(b), 487.051(2), 570.07(23) FS. Law Implemented 487.051(1)(b), 487.051(2), 487.071(2) FS. History–New 1-23-67, Amended 6-19-85, Formerly 5E-2.14, Amended 7-18-95, Amended __________.

 

5E-2.015 Methods of Analyses.

All methods of analyses for pesticide formulations shall be those adopted and published in Volume 1, Official Methods of Analysis, Association of Official Analytical Chemists, Chapter 7, pages 1-140 147-231 (21st 15th Edition, 2019 1990 & Supplements 1990-1994).

Rulemaking Authority 487.051(2), 487.154, 570.07(23) FS. Law Implemented 487.051(2), 487.071(2) FS. History–New 1-23-67, Amended 5-5-80, 10-27-80, 10-18-81, 4-4-83, 11-16-83, 6-19-85, Formerly 5E-2.15, Amended 11-16-86, 10-12-87, 8-2-89, 7-18-95, __________.

 

5E-2.031 Pesticide Registration; Exemptions from Registration; Experimental Use Permits.

(1) through (10) No Change.

(11)(a) Applicants for new or amended pesticide brand registration may must submit electronically an application and any pesticide registration fees, including supplemental fees and late fees via the Department’s online payment website at www.FDACS.gov www.FreshFromFlorida.com. An applicant will be required to submit online at this website the following information for registration of a new or amended pesticide product brand: the name of the applicant, including whether it is a division or subsidiary and if so, the name of the parent company; the business mailing address and business street address of the applicant; the name of the primary contact person for the applicant and contact information, including e-mail address, telephone number and fax number; the product name and the EPA/Florida number; the registration type; the signal word for the product; and the registration year. Upon completion of this transaction, a confirmation of payment letter shall be e-mailed to [e-mail] or mailed to the Florida Department of Agriculture and Consumer Services, Bureau of Scientific Evaluation and Technical Assistance, 3125 Conner Boulevard, Building 6, MS #L6, Tallahassee, Florida 32399-1650 together with the following documents:

1. One final printed label (that which appears on the product container);

2. One EPA stamped accepted label including a copy of any EPA comment, notification and amendment letter(s) issued in connection with acceptance of the label;

3. One Safety Data Sheet (SDS) as defined in Section 487.2031, F.S., which includes a statement of emergency treatment;

4. For sub-registrations, the information required in item 2. above must be obtained from or submitted by the manufacturer along with the EPA form entitled, “Notice of Supplemental Distribution of a Registered Pesticide Product” EPA Form 8570-5, (Rev. 8-94), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04759.

(b) Applicants for new or amended pesticide brand registration shall submit a completed Application for New or Amended Pesticide Product Brand Registration Form (FDACS 13342, Rev. 8/20), https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX if not utilizing the Department’s online payment website. The applicant will be required to submit the same documents set forth in paragraph (11)(a) of this rule as an applicant for a new or amended product brand registration.

(c) (b) Applicants for pesticide brand product re-registration may must submit electronically an application for re-registration via the Department’s online payment website at www.FDACS.gov www.FreshFromFlorida.com. The applicant will be required to submit the same information online set forth in paragraph (11)(a) of this rule as an applicant for a new or amended product brand registration.

Rulemaking Authority 487.041, 487.051, 570.07(23) FS. Law Implemented 487.041, 487.042, 487.051 FS. History–New 2-20-85, Formerly 5E-2.31, Amended 8-2-89, 7-18-95, 8-26-10, 11-30-14, __________.

 

5E-2.033 Organo-Auxin Herbicides: Restrictions and Prohibitions.

             (1) Synthetic organo-auxin herbicides: The synthetic organo-auxin herbicides are defined as herbicides which produce hormonal auxin type effects on plants similar to the effects of 2,4-D. Organo-auxin herbicides include but are not limited to all of the forms of herbicides such as: These herbicides include:

(a) 2,4-D,	2,4-Dichlorophenoxyacetic acid, in all forms;
(b) 2,4,5-T,	2,4,5-Trichlorophenoxyacetic acid, in all forms;
(c) Silvex,	2-(2,4,5-Trichlorophenoxy)propionic acid, in all forms;
(b)(d) MCPA,	4-chloro-2-methylphenoxyacetic acid, in all forms;
(c)(e) 2,4-DP, Dichloroprop	2-(2,4-Dichlorophenoxy)propionic acid, in all forms;
(d)(f) Mecoprop MCPP,	2-(2-methyl-4-chlorophenoxy)propionic acid, in all forms;
(g) MCPB,	4-(2-methyl-4-chlorophenoxy)butyric acid, in all forms;
(e)(h) Dicamba,	2-Methoxy-3, 6-dichlorobenzoic acid, in all forms;
(f)(i) Triclopyr	(3,5,6,-Trichloro-2-pyridinyl)oxyacetic acid, in all forms.
(g) 2,4-DB
(h) Clopyralid
(i) Fluroxypyr
(j) Aminopyralid
(k) Aminocyclopyrachlor
(l) Quinclorac
(m) Diflufenzopyr
(n) Florpyrauxifen-benzyl
(o) Picloram

 

(2) Sale and use of highly volatile forms of organo-auxin herbicides in the state is prohibited except for those products labeled for use as plant growth regulators on citrus. Highly volatile organo-auxin herbicides include the methyl, ethyl, propyl, isopropyl, and butyl esters of 2,4-D and 2,4,5-T.

(3) Based upon wind speed and direction at the time of application, the distance which must separate the closest edge of the area to be sprayed from susceptible crops is listed in Table 1. Susceptible crops are defined as commercially produced plants or crops that may be damaged when exposed to low concentrations of organo-auxin herbicides. Examples of susceptible crops are tomatoes, peppers, watermelons, eggplants and ornamental broadleaf plants. Users of or organo-auxin products on citrus as plant growth regulators are exempt from the wind speed restrictions below provided they adhere to the restrictions appearing on the product label.

Table 1: Minimum Distance From Susceptible Crops

 

Wind Speed	Aerial Equipment	Ground Equipment
0 – 3 mph	1/2 mile downwind	1/8 mile downwind
	1/2 mile crosswind	1/8 mile crosswind
	50 feet upwind	20 feet upwind
3 – 6 mph	1 mile downwind	1/4 mile downwind
	1/2 mile crosswind	1/8 mile crosswind
	50 feet upwind	5 feet upwind
6 – 10 mph	2 miles downwind	1/2 mile downwind
	1/2 mile crosswind	1/4 mile crosswind
	50 feet upwind	5 feet upwind
Above 10 mph	Prohibited	Prohibited

Note: “Crosswind” means wind from a direction 90 degrees (±10 degrees) to a line drawn between the proposed treatment site and a susceptible commercial crop site.

(4) Wind speed will be measured at the treatment site or up to two miles away. Wind speed measurements will be taken at spray boom height for ground application and at least six feet above the ground for aerial and airblast applications. The measurement site will be located so that structures, plants, or terrain features do not interfere with the accuracy of the reading. Wind direction will be estimated as accurately as possible by the person taking the wind speed readings. The applicator or his representative shall take and record wind speed and direction readings before spraying starts and once every hour during the spraying operation. A reading shall consist of an average of three measurements taken within a five-minute period. These measurements shall be taken by rotating and positioning the anemometer into the wind in such a manner so as to obtain the maximum wind velocity measurement which will be used to calculate the average reading. An anemometer accurate to within ±10% shall be used to take the wind speed measurements.

(5) Applicators should use appropriate spray nozzles and pressure to minimize the production of droplets with mean volume diameter less than 200 microns regardless of the spray equipment utilized. When utilizing boom application equipment on the ground, flat fan nozzles or their equivalent shall be used and application pressures shall not exceed 35 pounds per square inch. Applications of organo-auxin herbicides on citrus as a plant growth regulator utilizing airblast sprayers are exempt from the requirements of this section.

(6) Persons making spray applications of organo-auxin herbicides or plant growth regulators to cumulative land or water surface areas exceeding 5 acres per 24-hour period, shall maintain the following records for two years:

(a) Name and address of the owner, lessee or tenant in control of the land and the name and address of the applicator.

(b) Location of the site to be treated, location of the mixing and loading area and a description of application equipment used.

(c) Date and time of application.

(d) Trade name, manufacturer, formulation, total amount of product to be applied per acre and the amount of active ingredient of the product applied per acre.

(e) Total acreage and crop or site treated.

(f) Average hourly wind speed and direction.

(g) Nozzle type including gallons per minute rating at specified pressure (usually 40 psi) and angle of spray emission if applicable.

(7) Aerial application of organo-auxin herbicides by fixed wing aircraft from January 1 until May 1 of each year in Hendry, Palm Beach, Glades or Martin counties is prohibited. The use of rotary wing aircraft using Microfoil spray booms or their equivalent for right-of-way and aquatic spray applications is allowed provided the terms of subsections (2), (3), (4), (5), and (6) are met.

(8) Applicators who apply organo-auxin herbicides to aquatic sites ditches, canals, or the banks of similar waterways will assure that labeled directions are followed if water is used for irrigation they are not treating water that will be directly used for irrigation of sensitive crops.

(9) The ground application of low volatility 2,4-D products registered in the State of Florida for use as a growth regulator on red potatoes in small dosages substantially less than for herbicidal use is not subject to the use regulations and restrictions set forth in subsections (3) and (4) of this rule provided the product is not applied within 50 feet of susceptible crops, the spray boom height does not exceed 18 inches above the crop canopy and label instructions are followed.

(10) The following application methods are exempt from the above mentioned requirements:

(a) Cut stump, basal bark, hack and squirt or frill and girdle applications.

(b) Granular formulation applications.

(c) Subsurface aquatic applications.

Rulemaking Authority 570.07(23) FS. Law Implemented 487.031(10), (13)(e) FS. History–New 2-4-86, Amended 7-10-89, 7-29-04, ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kelly Friend, Director, Division of Agricultural Environmental Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nichole “Nikki” Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 05, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 8, 2021