Rule2021-27373
Pesticides; Certification of Pesticide Applicators; Extension to Expiration Date of Certification Plans
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 20, 2021
Effective
February 18, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is extending the expiration deadline of existing Federal, state, territory, and tribal certification plans. This deadline was established in 2017 when the EPA promulgated a final rule revising the Certification of Pesticide Applicators (CPA) regulations to improve the competency of certified applicators of restricted use pesticides (RUPs), increase protection for noncertified applicators using RUPs under the direct supervision of a certified applicator through enhanced pesticide safety training and standards for supervision of noncertified applicators, and establish a minimum age requirement for certified and noncertified applicators using RUPs under the direct supervision of a certified applicator. Federal, state, territory, and tribal certifying authorities with existing certification plans were required to revise their existing certification plans to conform with the updated Federal standards for the certification of applicators of RUPs and submit their revisions for EPA review in March 2020. The existing plans are set to expire on March 4, 2022, unless the revised plans are approved by the Agency. EPA is extending the existing plans' expiration deadline to November 4, 2022. This will allow additional time for proposed certification plan modifications to continue being reviewed and approved by EPA without interruption to federal, state, territory, and tribal certification programs or to those who are certified to use RUPs under those programs. The extension also provides EPA with additional time to issue a proposed rule and seek public comment on the need for extending the expiration date beyond November 4, 2022.
Full Text
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<title>Federal Register, Volume 86 Issue 241 (Monday, December 20, 2021)</title>
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[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 71831-71838]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27373]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 171
[EPA-HQ-OPP-2021-0831; FRL-9134-02-OCSPP]
RIN 2070-AL00
Pesticides; Certification of Pesticide Applicators; Extension to
Expiration Date of Certification Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is extending the
expiration deadline of existing Federal, state, territory, and tribal
certification plans. This deadline was established in 2017 when the EPA
promulgated a final rule revising the Certification of Pesticide
Applicators (CPA) regulations to improve the competency of certified
applicators of restricted use pesticides (RUPs), increase protection
for noncertified applicators using RUPs under the direct supervision of
a certified applicator through enhanced pesticide safety training and
standards for supervision of noncertified applicators, and establish a
minimum age requirement for certified and noncertified applicators
using RUPs under the direct supervision of a certified applicator.
Federal, state, territory, and tribal certifying authorities with
existing certification plans were required to revise their existing
certification plans to conform with the updated Federal standards for
the certification of applicators of RUPs and submit their revisions for
EPA review in March 2020. The existing plans are set to expire on March
4, 2022, unless the revised plans are approved by the Agency. EPA is
extending the existing plans' expiration deadline to November 4, 2022.
This will allow additional time for proposed certification plan
modifications to continue being reviewed and approved by EPA without
interruption to federal, state, territory, and tribal certification
programs or to those who are certified to use RUPs under those
programs. The extension also provides EPA with additional time to issue
a proposed rule and seek public comment on the need for extending the
expiration date beyond November 4, 2022.
DATES:
Effective date: This interim final rule is effective on February
18, 2022.
Comment due date: Comments on the interim final rule must be
received on or before January 19, 2022.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2021-0831, using the Federal eRulemaking Portal
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for
submitting comments. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Additional
instructions on commenting or visiting the docket, along with more
information about dockets generally, is available at <a href="https://www.epa.gov/dockets/about-epa-dockets">https://www.epa.gov/dockets/about-epa-dockets</a>.
Due to the public health concerns related to COVID-19, the EPA
Docket Center (EPA/DC) and Reading Room is closed to visitors with
limited exceptions. The staff continues to provide remote customer
service via email, phone, and webform. For the latest status
information on EPA/DC services and docket access, visit <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division, Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; telephone number: (202) 566-2376; email address:
<a href="/cdn-cgi/l/email-protection#b7c4d4dfc5d8d2d3d2c599d4d6c5d8dbced9f7d2c7d699d0d8c1"><span class="__cf_email__" data-cfemail="5221313a203d373637207c3133203d3e2b3c123722337c353d24">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you are a
federal, state, territory, or tribal agency who administers a
certification program for pesticides applicators. You may also be
potentially affected by this action if you are: A registrant of RUP
products; a person who applies RUPs, including those under the direct
supervision of a certified applicator; a person who relies upon the
availability of RUPs; someone who hires a certified applicator to apply
an RUP; a pesticide safety educator; or
[[Page 71832]]
other person who provides pesticide safety training for pesticide
applicator certification or recertification. The following list of
North American Industrial Classification System (NAICS) codes is not
intended to be exhaustive, but rather provides a guide to help readers
determine whether this document applies to them. Potentially affected
entities may include:
<bullet> Agricultural Establishments (Crop Production) (NAICS code
111);
<bullet> Nursery and Tree Production (NAICS code 111421);
<bullet> Agricultural Pest Control and Pesticide Handling on Farms
(NAICS code 115112);
<bullet> Crop Advisors (NAICS codes 115112, 541690, 541712);
<bullet> Agricultural (Animal) Pest Control (Livestock Spraying)
(NAICS code 115210);
<bullet> Forestry Pest Control (NAICS code 115310);
<bullet> Wood Preservation Pest Control (NAICS code 321114);
<bullet> Pesticide Registrants (NAICS code 325320);
<bullet> Pesticide Dealers (NAICS codes 424690, 424910, 444220);
<bullet> Industrial, Institutional, Structural & Health Related
Pest Control (NAICS code 561710);
<bullet> Ornamental & Turf, Rights-of-Way Pest Control (NAICS code
561730);
<bullet> Environmental Protection Program Administrators (NAICS
code 924110); and
<bullet> Governmental Pest Control Programs (NAICS code 926140).
B. What is the Agency's authority for taking this action?
1. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
This action is issued under the authority of FIFRA, 7 U.S.C. 136-
136y, particularly sections 136a(d), 136i, and 136w.
2. Administrative Procedure Act (APA)
The APA provides that when an agency for good cause finds that
notice and public procedures are impracticable, unnecessary, or
contrary to the public interest, the agency may issue a rule without
providing notice and an opportunity for public comment. 5 U.S.C.
553(b)(3)(B).
EPA has determined that there is good cause for extending the
expiration date for the existing certification plans without prior
proposal and opportunity for comment for the following reasons:
<bullet> EPA's review and approval efforts, beginning in March
2020, were significantly hampered by the COVID-19 public health
emergency, which created unforeseen circumstances that impacted EPA's
ability to coordinate effectively with the state, territory, and tribal
agencies and to provide early feedback to these certifying authorities
during the two-year review and approval period. These impacts have also
affected the state, territory, and tribal agencies' ability to respond
to EPA's feedback and have significantly limited the amount of time
these certifying authorities have to respond to such feedback. These
issues resulted in EPA's review and approval process falling behind
schedule. While slightly more than half of the 67 total plans have been
reviewed by EPA to date, the Agency does not anticipate that all
reviews will have been returned to the certifying authorities until
February 2022. As a result, there is insufficient time for many of the
certifying authorities to address all comments prior to March 4, 2022.
See also the discussion in Unit II.B. and C.
<bullet> Even though EPA was aware that the review and approval
process was falling behind schedule due to COVID-19 resource
constraints at both the federal level and within the state, territory,
and tribal agencies that develop, implement, and enforce these plans,
EPA lacked the authority to develop changes to this regulatory deadline
before October 1, 2021. Section 7(a)(2) of the Pesticide Registration
Improvement Act of 2018 (PRIA 4) (Pub. L. 116-8; 133 Stat. 578),
enacted on March 8, 2019, prohibited EPA from revising or developing
revisions to the certification rule prior to October 1, 2021, thereby
limiting EPA's ability to adjust the regulatory deadline until now.
This extension provides EPA and the certifying authorities an
opportunity to complete the review and approval process that was
hampered by the COVID-19 pandemic and for certifying authorities to
begin implementation of the modified certification plans without a
lapse in coverage, ensuring that the increased protections required by
the 2017 rule (Ref. 1) are fully realized. See also the discussion in
Unit II.D.
<bullet> Rulemaking requirements, which in this case also include
FIFRA rulemaking requirements that delay the effective dates of FIFRA
rules and prescribe external reviews of the draft rulemaking within
prescribed time periods, make it impracticable to complete a standard
notice and comment rulemaking between the October 1, 2021 end of the
PRIA 4 prohibition and the March 4, 2022 expiration date. See also the
discussion in Unit II.D. and V.
<bullet> The expiration of state, territory, tribal, and federal
agency certification programs would have significant adverse impacts on
the certifying authorities, the economy, public health, and the
environment. Applicator certifications under programs with expired
plans would no longer be valid, significantly impairing access to and
use of RUPs in many parts of the country, which in turn could pose
potential risks to agriculture, commerce, and public health. Although
difficult to quantify, the economy would be impacted by the shutdown of
existing certification programs, including the potential economic
impacts from limited availability of RUPs, and related limitations on
training providers, certified individuals, and the program
infrastructure established by the certifying agencies. Additionally,
the Agency's ability to carry out its function of ensuring that
applicators have been adequately trained and assessed for competency to
use RUP products and the certifying authorities' ability to implement
their certification programs within their jurisdiction will be
significantly impacted should existing plans expire before EPA approves
the revised certification plans. See also the discussion in Unit I.E.
<bullet> The extension of the regulatory deadline directly impacts
those state, territory, tribal, and federal certifying agencies whose
revised certification plans may not be approved by the regulatory
deadline of March 4, 2022. While providing these entities a formal
opportunity for comment on a proposed rule is impracticable for the
reasons previously stated, certifying authorities have already
expressed a need for more time to address EPA comments and have
indicated their general support for the extension in communications
with EPA. Given the urgent need for this rulemaking, EPA is issuing
this rule as an interim final rule with post-promulgation public
comment in order for the extension to be effective before the
regulatory deadline of March 4, 2022.
In conclusion, for the reasons enumerated here, EPA is promulgating
this interim final rule without a general notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b)(3)(B) because the Agency finds good cause
that notice and public comment procedures are impracticable. In
addition, EPA is also planning to issue a separate notice of proposed
rulemaking (NPRM) in the near future to request comment on the
potential need to further extend the regulatory deadline. EPA intends
to address comments in response to this interim final rule and the NPRM
concurrently and to publish a final rule.
[[Page 71833]]
C. What action is the Agency taking?
This interim final rule is revising the expiration date for
existing certification plans at 40 CFR 171.5(c) from March 4, 2022, to
November 4, 2022. While EPA anticipates that all plans will have been
reviewed and returned to the certifying authorities for further
revision by February 2022, this revision will allow for certifying
authorities that need more time to respond to EPA comments and prepare
approvable certification plans, and more time for EPA to work with the
certifying authorities to assure that their proposed certification plan
modifications meet current federal standards. Although significant
progress has been made in the development of revised plans and EPA's
subsequent reviews, COVID-19 resource constraints have impacted the
time certifying authorities have had to respond to EPA's comments and
Agency's ability to work with certifying authorities to assure that
their plans are approvable by the March 2022 deadline. Further
collaboration is still needed between EPA and the certifying
authorities to finalize and approve plans. EPA intends to work
expeditiously toward approving and supporting the implementation of
plans that meet the current federal standards during the extension and
intends to provide periodic notifications to the public when those
approvals have occurred. No other changes to the certification
standards and requirements specified in 40 CFR part 171 are being made
in this rulemaking.
In addition to this interim final rulemaking, EPA is planning to
issue a separate notice of proposed rulemaking (NPRM) for public
comment on the potential need to further extend the expiration date for
existing plans beyond November 4, 2022. Any additional extension
pursued by the Agency will be informed by both the progress on plan
reviews and approvals made during this extension period and by the
public comments on this interim final rule and the NPRM.
D. Why is the Agency taking this action?
EPA finds that the deadline extension is an urgent need and
necessary to assure that certified applicators will continue to be
authorized to use RUPs without interruption and to provide certifying
authorities with additional time to review and respond to EPA comments
on their plans. The extension will also provide additional time for EPA
to work more closely with the certifying authorities to address any
remaining feedback and work toward approving their revisions. This
extension also provides the Agency an opportunity to propose a longer-
term extension through standard notice and comment rulemaking
procedures. Without the deadline extension, modified certification
programs that are not approved by the regulatory deadline of March 4,
2022, will expire, and applicators formerly trained and certified under
such plans will no longer be allowed to use RUPs.
E. What are the incremental impacts of this action?
Incremental impacts of extending the regulatory deadline are
generally positive because the extension provides certifying entities
and EPA with more time to ensure that modified plans meeting the
minimum federal requirements are in place, while failure to extend the
regulatory deadline would likely have significant adverse impacts on
the certifying authorities, the economy, public health, and the
environment (see discussion in Unit I.B.2.).
EPA uses information from the 2017 certification rule (Ref. 1),
which mandates the March 4, 2022 expiration of existing certification
plans unless EPA approves revised certification plans, to assess the
incremental economic impacts of this interim final rule which extends
this deadline from March 4, 2022, to November 4, 2022. The impacts of
the extension are that the implementation costs borne by the certifying
authorities will be expended over an additional period of time and some
of the costs to commercial and private applicators may be delayed. Some
of the benefits of the rule (e.g., reduction in acute illnesses from
pesticide poisoning) are foregone as the implementation of some plans
may be delayed while EPA works with the certifying authorities toward
approval of their revised certification plans.
1. Cost to Certifying Authorities
The 2017 rule provided a compliance period for certifying
authorities to develop, obtain approval, and implement any new
procedures, regulations, or statutes to meet the new federal standards.
The 2017 rule further provided that existing plans could remain in
effect after March 4, 2022, only to the extent specified in EPA's
approval of a modified certification plan; EPA did not explicitly set a
date for full implementation of the new programs. Certifying
authorities can begin implementing their revisions to their programs
when they are approved by EPA; portions of revised certification
programs may be implemented in advance of plan approvals when in
compliance with the 2017 rule requirements. All certifying authorities
submitted their draft revised certification plans to EPA by the March
2020 deadline and the draft plans are presently undergoing review at
EPA. Shortly after the March 2020 deadline, the COVID-19 public health
emergency disrupted the normal progress of the EPA's review and
approval of the draft plans. EPA and certifying authorities could not
put the amount of effort into this part of the rule implementation that
was originally anticipated, as they had to divert their resources to
addressing pandemic-related issues. Thus, only part of the cost to
certifying authorities estimated in the 2017 rule has presently been
spent and some of the cost will be expended during the additional
extension period. Therefore, this interim final rule is not expected to
significantly change the costs to certifying authorities estimated in
the 2017 Economic Analysis (EA) (Ref. 2).
2. Cost to Certified Applicators
The other sectors affected by the 2017 rule (e.g., commercial and
private applicators) are not incurring any costs until revised
certification plans take effect. Once the revised plans take effect,
the 2017 EA estimated that commercial applicators and private
applicators would incur annualized costs of $16.2 million and $8.6
million, respectively, to meet the new certification standards. Some of
these costs could be delayed as revised programs are approved and
implemented over a longer period of time.
3. Potentially Delayed Benefits of the 2017 Rule
The delay in the approval of revised certification plans may also
delay some benefits that would have otherwise accrued if certification
plans were approved and implemented by the deadline established in the
2017 rule, as assessed in the 2017 EA. In 2017, EPA estimated that
implementing the new federal certification requirements would reduce
acute illness caused by exposure to RUPs, based on an analysis of
pesticide incidents assuming that about 20% of poisonings are reported
(a plausible estimate based on the available literature regarding
occupational injuries or chemical poisoning incidents). Incidents may
result in harms to applicators, persons in the vicinity, and the
environment. Reported incidents most commonly cite exposure to the
applicator or farmworkers in adjacent areas. Based on avoided medical
costs and lost wages, the annualized benefits of the rule were
estimated to be between $51.1 and $94.4
[[Page 71834]]
million. In addition, EPA expected that improved training would also
reduce chronic illness among applicators from repeated RUP exposure and
would benefit the public from better protections from RUP exposure when
occupying treated buildings or outdoor spaces, consuming treated food
products, and reducing the impact on non-target plants and animals. To
the extent that this rule delays implementation of the 2017 rule, it
will delay accrual of some of those benefits.
Not all the benefits of certification program revisions will be
delayed, however, since some programs have been or will be able to
start implementing changes sooner. Certifying authorities can begin
implementing their revisions to their programs as soon as they are
approved by EPA, some of which are anticipated to be approved in early
2022. In some jurisdictions, portions of revised certification programs
are presently being implemented and in compliance with or exceeding the
2017 rule requirements, such as imposing minimum age requirements and
updating manuals and exam administration procedures, so some benefits
are already being realized in advance of full plan approvals.
Additionally, some certifying authorities were forced to make changes
to their existing certification programs to accommodate COVID-19-
related protocols. Any changes that were made to existing plans to make
these accommodations were required to be consistent with the new
requirements and standards established in the 2017 rule.
Without the extension, however, the benefits of the 2017 rule would
not be fully realized. The impact of plans expiring absent EPA's
approval of modified plans has far-reaching implications across many
business sectors, including but not limited to the agricultural sector,
importation and exportation business, and structural pest control
(e.g., termite control), and could potentially impact all communities
and populations throughout the U.S. in various ways as discussed in
Unit I.E.4. In addition to the potential delay of benefits that would
result from this extension, EPA and certifying authorities have already
invested significant resources in the preparation and review of plan
modifications that would fully implement the 2017 rule. It is EPA's
considered judgement that the sunk cost of these investments, taken
together with the significant costs of not extending the deadline as
discussed in Unit I.E.4., outweigh the delayed benefits. EPA will
continue to work expeditiously with certifying authorities to review
and approve plans on a rolling basis. EPA's ongoing collaboration with
the certifying authorities, which was significantly impacted by the
COVID-19 pandemic, will result in modified plans that are protective of
the environment and human health, including the health of certified
pesticide applicators and those under their direct supervision, and
will ensure that certified applicators are trained to prevent bystander
and worker exposures as contemplated in the 2017 rule.
4. Costs of Not Extending the Deadline
If the regulatory deadline is not extended, it is likely that EPA
will be unable to approve many of the state, territory, tribal, and
other federal agency certification programs, resulting in termination
of these programs. EPA would have to take responsibility for
administering certification programs for much of the country. A gap in
coverage will likely exist between when certification programs expire
and when EPA can fully implement EPA-administered certification
programs, resulting in RUPs being unavailable for use in many places
during the 2022 growing season and potentially through the end of 2022
or longer. It is also unlikely that EPA's certification programs would
offer the same availability and convenience as those offered by state,
territorial, and tribal certifying authorities, so it is likely that
some applicators would face higher costs or be unable to obtain
certification to apply RUPs. Additionally, once the EPA-administered
certification plans are in place, they may in some cases be less
protective than state plans would be, as many state plans include
requirements that are more protective than the EPA requirements and
these benefits will be lost if the deadline is not extended and EPA
takes over many of the country's certification programs.
Additionally, EPA would be forced to expend time and resources in
establishing the infrastructure to administer these certification
programs, which would further delay coordination with certifying
authorities whose plans were either approved and would be in the
process of being implemented, or are awaiting approval. This is likely
to cause significant disruption for agricultural, commercial, and
governmental users of RUPs, and could have consequences for pest
control in a broad variety of areas, including but not limited to the
control of public health pests (e.g., mosquito control programs), pests
that impact agriculture and livestock operations, structural pests
(e.g., termites), pests that threaten state and national forests, and
pests in containerized cargo. Applicators could lose work and income.
Further, the expiration of certification plans could lead to confusion
and potential enforcement issues when certifications that were formerly
valid suddenly expire. It is also unlikely that EPA's certification
programs could offer the depth of specialization found in many state,
territorial and tribal certifying programs, which may be tailored to
the particular pest control and human health needs commonly found in
these localities. Thus, applicators certified under EPA programs would
only be assessed for competency at the minimum federal standards and
may not receive the specialized training that state, territorial, and
tribal certifying authorities often provide. In addition, many states
require professional applicators to be trained and licensed to apply
general use pesticides and it is unclear to what extent states would be
able to support those programs if they were to lose authority to
certify RUP applicators.
F. Request for Comments
The Agency invites certifying authorities, certified applicators,
and the public to provide their views on the extension of the
expiration date to November 4, 2022. Additionally, in advance of the
planned NPRM seeking further extension of this deadline, commenters are
encouraged to provide feedback on the need for, or concerns over,
further extending the expiration date of existing plans and the
appropriate length of a longer extension if warranted. Comments on this
interim final rule will also be considered in the development of that
rulemaking.
G. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
<a href="https://www.regulations.gov">https://www.regulations.gov</a> or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI in a disk or CD-ROM
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as 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
[[Page 71835]]
comments, see the commenting tips at <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
II. Background
A. January 2017 Final Rule
In January 2017, EPA finalized a rule that revised the
Certification of Pesticide Applicators regulations at 40 CFR part 171
(certification or CPA rule) (Ref. 1). The certification rule sets
standards of competency for persons who use RUPs and establishes a
framework for certifying authorities to administer pesticide applicator
certification programs. One of the stated purposes of the 2017 rule is
to ensure that persons using RUPs are competent to use these products
without causing unreasonable adverse effects to themselves, the public,
or the environment.
In updating the CPA regulations, EPA revised the regulation to
enhance the following: Commercial and private applicator competency
standards, exam and training security standards, standards for
noncertified applicators working under the direct supervision of a
certified applicator, tribal applicator certifications, and the
requirements for submission, approval, and maintenance of state,
tribal, territory, federal agency, and EPA-administered certification
plans. The final rule also revised the regulation by adding categories
of certification for commercial and private applicators, adding a
recertification interval and criteria for recertification programs
administered by certifying authorities, and establishing a minimum age
for both certified applicators and noncertified applicators who use
RUPs under direct supervision of certified applicators.
For federal agency plans, the final rule deleted the section on
Government Agency Plans (GAP) in the old 40 CFR 171 and codified the
existing policy on review and approval of federal agency certification
plans prior to the 2017 rule. For tribal agency plans, the final rule
offered tribal governments three options not previously provided for
certifying applicators in Indian country. A tribe may choose to allow
persons holding currently valid certifications issued under one or more
specified state, tribal, or federal agency certification plans to apply
RUPs within the tribe's Indian country, develop its own certification
plan for certifying private and commercial applicators, or take no
action, in which case EPA may, in consultation with the tribe(s)
affected, implement an EPA-administered certification plan within the
tribe's Indian country. EPA currently administers (Ref. 3), and has
proposed updates to (Ref. 4), a federal certification program covering
Indian country not otherwise covered by an individual tribal
certification plan.
Under the 2017 rule, existing certification plans approved by EPA
before the effective date of the rule (March 6, 2017) would remain in
effect until March 4, 2020. If a certifying authority submitted an
amended certification plan to EPA for approval by the March 2020
deadline, the existing certification plan would continue to remain in
effect until EPA has reviewed and responded to the amended
certification plan, but not beyond March 4, 2022, unless EPA authorizes
further extension in its approval of an amended certification plan. EPA
will specify in its approval of a plan how long the existing plan may
remain in effect while the certifying authority prepares and completes
implementation of its amended certification plan. EPA will base each
certifying authority's implementation period on the circumstances of
that jurisdiction.
B. Attempted Changes to the 2017 Rule's Effective Date and Efforts To
Meet the Regulatory Deadlines
In a series of Federal Register notices published in 2017 (Refs. 5,
6, and 7), EPA attempted to delay the effective date of the 2017 rule
until May 22, 2018 in order to reconsider the merits of the rule.
Litigation over the effective date resulted in the delay rules being
vacated and the original effective date of March 4, 2017, being
restored (Ref. 8). While efforts to begin outreach and implementation
of the certification rule continued during this process, such as EPA's
course for regulatory agencies in April 2017 (Ref. 9), some of the
Agency's efforts to develop and provide guidance and support materials
on the Agency's expectations regarding the revised certification plans
slowed down, and some certifying authorities delayed efforts to update
their certification plans under the expectation that the three-year
window to revise and submit modified certification plans was not going
to start until May 22, 2018, if at all. The uncertainty about whether
the rule was effective and its potential fate upon reconsideration
caused EPA and the certifying authorities to lose some of the time the
rule had allotted for collaboration in advance of the March 2020
submission deadline.
Despite some of the early delays, EPA and the certifying
authorities were productive during the remaining two years, with
significant collaborative efforts on an individual level between the
certifying authorities and EPA Regional Offices, as well as in-person
group settings with the certifying authorities and EPA staff (Ref. 10).
These efforts resulted in all certifying authorities submitting their
draft certification plan revisions to EPA by the March 2020 deadline
established in regulation. As a result, all plans that were approved by
EPA prior to March 6, 2017, continue to remain in effect while EPA
reviews and works with the certifying authorities toward approval of
their certification plans. These existing certifications plans are set
to expire on March 4, 2022, unless the modified plans are approved by
EPA and the approved plan specifies the time needed to fully implement
the revisions identified.
C. Impact of the COVID-19 Public Health Emergency on EPA's Review and
Approval Process
When EPA selected a two-year period from March 2020 to March 2022
for evaluating and approving modified plans in the 2017 rule, the
Agency had anticipated that significant engagement would continue with
the certifying authorities during the review period to ensure that
their draft certification plans meet or exceed the minimum
requirements. EPA also expected that the proposed plans would need
further modification before they could be approved by EPA.
Additionally, EPA expected in 2017 that a number of plans would have
been submitted earlier than the regulatory deadline for submission,
thereby resulting in the reviews being spread out over a longer period
of time instead of the two-review review period. However, due in part
to the loss of early collaboration time and delays as described in Unit
II.B., most of the plans were submitted on or shortly before the
regulatory deadline, and some of the work that would have been done by
EPA and certifying authorities before plan submission was shifted into
EPA's review period, thereby increasing the level of effort for both
EPA and certifying authorities during this two-year period. Despite
these issues, EPA anticipated and planned for much of the additional
work after submission to be completed by May 2021, with final review
and approvals to follow shortly thereafter.
However, while EPA was prepared for this influx of plans, shortly
after the March 2020 submission deadline, the COVID-19 public health
emergency arose. This significantly impacted the certifying
authorities' resources and ability to address EPA comments in a timely
manner, as resources shifted to address pressing public health needs
related to COVID-19. Additionally, EPA
[[Page 71836]]
necessarily redirected some of the staff and resources dedicated to
certification plan reviews to address emerging COVID-19 related issues.
Examples include providing support to the existing certification
programs to adapt to the COVID-19 crisis (Ref. 11), as well as
addressing a number of COVID-19-related issues impacting farmworker
pesticide safety under the Agricultural Worker Protection Standard
(WPS) at 40 CFR 170 such as health concerns around in-person training
and reduced availability of respiratory protection equipment (Ref. 12,
13, 14, and 15). EPA staff involved in plan reviews also spent
considerable time early in the pandemic to help respond to public
inquiries (both in Spanish and English) regarding COVID-19 and
pesticide products that may be effective at killing the virus, among
other support efforts within the Agency at the time.
COVID-19 also drew certifying authorities' resources away from
pursuing compliance with the 2017 rule in various ways, such as the
need to accommodate social distancing in their applicator training and
testing procedures. To support these efforts, EPA staff frequently met
with state and regional staff and issued guidance (Ref. 11) to ensure
that these program changes were consistent with the new federal
requirements while meeting their needs during the pandemic. This
resulted in delayed reviews and EPA feedback on the new certification
plans. While EPA anticipates that all plans will have been reviewed and
returned to the certifying authorities with comments by February 2022,
the early impacts of COVID-19 on available resources and plan reviews
have significantly limited the amount of time that many certifying
authorities have had to address EPA's comments prior to the March 2022
deadline.
D. PRIA 4 Restriction
In 2017, EPA published a document in the Federal Register stating
that the Agency had initiated rulemaking to reconsider the minimum age
requirements under 40 CFR 171 (Ref. 16). As indicated in Unit I.B.2.,
negotiations around the PRIA 4 reauthorization resulted in the mandate
requiring EPA to carry out and implement the 2017 rule as finalized and
prohibited the Agency from revising or developing revisions to the CPA
regulations prior to October 1, 2021, thereby halting the
reconsideration of the minimum age requirements and any other potential
changes to the certification rule until that date. In accordance with
PRIA 4, EPA has been working with the certifying authorities to revise
and complete the review and approval process of their certification
plans by the deadlines established in 40 CFR 171.5.
However, the COVID-19 public health emergency has negatively
impacted both the Agency's ability to review and approve plans in a
timely manner and has impacted the certifying authorities' ability to
respond to Agency comments quickly and effectively as discussed in Unit
II.C. While EPA has been aware that the review and approval of plans
was behind schedule for the reasons previously described, EPA was
prohibited from undertaking any effort to amend the certification rule
to extend the expiration date for the existing plans until October 1,
2021, when the PRIA 4 prohibition against revising or developing
revisions expired.
FIFRA imposes additional requirements that add to the complexity of
rulemaking. One requirement, 7 U.S.C. 136w(a)(2)(A) and (B), requires
up to 60 days of review by the Secretary of Agriculture for proposed
rules and 30 days for final rules (see Unit V). Another requirement, 7
U.S.C. 136w(a)(4), provides that a rule does not become effective until
60 days after it has been promulgated. When FIFRA rulemaking
requirements and the PRIA 4 prohibition are considered together, EPA
did not have sufficient time to comply with conventional notice and
comment rulemaking procedures and applicable executive orders.
III. Provisions of This Interim Final Rule
A. Need for Extending the Existing Plans' Expiration Date
An extension of the expiration date for existing certification
plans is needed to ensure that federal, state, territory, and tribal
agencies have sufficient time to revise their certification plans in
response to EPA's feedback on their draft certification plans. Absent
an extension of this deadline, it is likely that a significant number
of state, territory, tribal, and other federal agency certification
programs will terminate, causing severe disruption for agricultural,
commercial, and governmental users of RUPs. Failure to extend the
regulatory deadline, and the resulting expiration of many certification
programs, would significantly limit access to certification, thereby
limiting access to RUPs that are necessary for various industries that
rely upon pest control.
If EPA is unable to act expeditiously to extend the regulatory
deadline, many existing certification plans that remain in effect
pending EPA's review of submitted certification plan modifications will
expire on March 4, 2022, in which case 7 U.S.C. 136i(a) requires that
EPA provide RUP applicator certification programs in states (including
territories) where a state certification plan is not approved. If EPA
were to take on the burden of administering certification programs for
much of the country, it would draw resources away from other important
Agency priorities, including implementation of certification plans that
are approved before the March 2022 deadline. In addition, it would take
significant time and resources to set up the infrastructure for such
federal certification programs and to train, test, and certify
applicators, which would likely result in RUP use being curtailed in
affected states. It is unlikely that EPA would be able to establish
these federal certification programs before the start of the 2022
growing season, which would have potentially devastating impacts on the
agricultural sector in many parts of the country. Moreover, once EPA-
administered state certification programs are established, it is
unlikely that they would operate at the same capacity as existing state
programs, but rather, would provide fewer and less localized
opportunities for applicators to satisfy certification requirements. As
a result, significant adverse effects are expected on the pest control
industry if current plans expire, as existing certifications will no
longer be valid and will need to be replaced with federal
certifications, likely creating economic and public health
ramifications in a wide range of sectors such as agricultural commodity
production, public health pest control, and industrial, institutional,
and structural pest control. RUP access in this scenario would be
minimal for most, if not all, of the 2022 growing season, and
significant disruptions could extend even further.
B. New Deadline for Certification Plan Approvals
Under this interim final rule, the deadline for amended
certification plans to be approved without interruption of the existing
certification plans provided in 40 CFR 171.5(c) is being changed from
March 4, 2022, to November 4, 2022. This additional time is necessary
to assure that all the certifying authorities have enough time to
present approvable certification plans, and for EPA to work more
closely with the state, territory, and tribal agencies on necessary
modifications, and ultimately approve their certification plans. As
some certifying authorities are close to completing their revisions and
receiving
[[Page 71837]]
EPA approval on their plans, EPA anticipates that some certification
plan approvals will begin in early 2022 and will continue through the
revised November 4, 2022 deadline. EPA anticipates that notice of
certification plan approvals will be periodically provided to the
public in batched notices in the Federal Register and on EPA's website
as they are approved.
The extension in this interim final rule will also provide EPA with
additional time to issue a separate NPRM seeking further extension of
the deadline, providing stakeholders an opportunity to submit comments
on the need for an additional extension to the expiration date for
existing plans, and to include in their comments specific information
detailing the necessity for or concerns over such an extension. EPA
will be seeking this additional comment, because EPA did not have
sufficient time to propose an extension prior to the regulatory
deadline and is interested in seeking additional information to
determine an appropriate length of time for such an extension. During
this upcoming comment period in the following proposed rule, EPA
expects that certifying authorities and other interested stakeholders
will be able to provide more information on the efforts, issues, and
concerns within each certifying authorities' jurisdiction and the
potential impacts of delayed certification plans should plans require
additional review time beyond November 4, 2022.
IV. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the person
listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Pesticides; Certification of Pesticide Applicators; Final
Rule. Federal Register. 82 FR 952, January 4, 2017 (FRL-9956-70).
2. EPA. Economic Analysis of the Final Amendments to 40 CFR part
171: Certification of Pesticide Applicators [RIN 2070-AJ20].
December 6, 2016. Docket ID No. EPA-HQ-OPP-2011-0183-0807.
3. EPA. Final EPA Plan for the Federal Certification of Applicators
of Restricted Use Pesticides Within Indian Country; Notice of
Implementation. Notice. Federal Register. 79 FR 7185, February 6,
2014 (FRL-9904-18).
4. EPA. EPA Plan for the Federal Certification of Applicators of
Restricted Use Pesticides Within Indian Country; Proposed Revisions;
Notice of Availability and Request for Comment. Federal Register. 85
FR 12244, March 2, 2020 (FRL-10005-59).
5. EPA. Delay of Effective Date for 30 Final Regulations Published
by the Environmental Protection Agency Between October 28, 2016 and
January 17, 2017. Federal Register. 82 FR 8499, January 26, 2017
(FRL-9958-87-OP).
6. EPA. Further Delay of Effective Dates for Five Final Regulations
Published by Environmental Protection Agency between December 12,
2016 and January 17, 2017. Federal Register. 82 FR 14324, March 20,
2017 (FRL-9960-28-OP).
7. EPA. Pesticides: Certification of Pesticide Applicators; Delay of
Effective Date. Federal Register. June 2, 2017 (82 FR 25529) (FRL-
9963-34).
8. Pineros y Campesinos Unidos del Noroeste, et al., v. Pruitt, et
al., Case No. 17-CV-03434 (N.D. Cal. filed June 4, 2017); 293 F.
Supp. 3d 1062 (N.D. Cal. 2018).
9. EPA. 2017 Pesticide Regulatory Education Programs. Course:
Pesticide Applicator Certification. Baltimore, MD. April 4-6, 2017.
10. EPA. 2019 Pesticide Regulatory Education Program Applicator
Certification Rule PREP. Crystal City, VA. April 29-May 2, 2019.
11. EPA. Memorandum: Guidance regarding the Certification of
Pesticide Applicators during the COVID-19 Public Health Emergency.
July 27, 2020.
12. EPA. Memorandum: Guidance on Satisfying the Annual Pesticide
Safety Training Requirement under the Agricultural Worker Protection
Standard during the COVID-19 Emergency. June 18, 2020.
13. EPA. Memorandum: Statement Regarding Respiratory Protection
Shortages and Reduced Availability of Respirator Fit Testing Related
to Pesticide Uses Covered by the Agricultural Worker Protection
Standard during the COVID-19 Public Health Emergency. June 1, 2020.
14. EPA. Memorandum: Amendment to the June 1, 2020, Statement
Regarding Respiratory Protection Shortages and Reduced Availability
of Respirator Fit Testing Related to Pesticide Uses Covered by the
Agricultural Worker Protection Standard during the COVID-19 Public
Health Emergency. May 6, 2021.
15. EPA. Memorandum: Termination of the June 1, 2020 Statement/May
6, 2021 Amendment Regarding Respiratory Protection Shortages and
Reduced Availability of Respirator Fit Testing Related to Pesticide
Uses Covered by the Agricultural Worker Protection Standard during
the COVID-19 Public Health Emergency. August 10, 2021.
16. EPA. Pesticides; Certification of Pesticide Applicators Rule;
Reconsideration of the Minimum Age Requirements. Federal Register.
December 19, 2017 (82 FR 60195) (FRL-9972-11).
V. FIFRA Review Requirements
In accordance with FIFRA section 25(a), EPA submitted a draft of
this interim final rule to the United States Department of Agriculture
(USDA) and to the appropriate Congressional Committees.
USDA responded without comments. The FIFRA Scientific Advisory
Panel (SAP) waived review of this interim final rule, concluding that
the interim final rule does not contain issues that warrant scientific
review by the SAP.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action under Executive
Order 12866 (58 FR 51735, October 4, 1993) and was submitted to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in
response to OMB recommendations have been reflected in the docket for
this action.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection
activities or burden subject to OMB review and approval under the PRA,
44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). OMB has
previously approved the information collection activities contained in
the existing regulations and associated burden under OMB Control
Numbers 2070-0029 (EPA ICR No. 0155) and 2070-0196 (EPA ICR No. 2499).
An agency may not conduct or sponsor, and a person is not required to
respond to a collection of information that requires OMB approval under
PRA, unless it has been approved by OMB and displays a currently valid
OMB control number. The OMB control numbers for EPA's regulations in
title 40 of the CFR, after appearing in the Federal Register, are
listed in 40 CFR part 9, and included on the related collection
instrument or form, if applicable.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA
applies only to rules subject to notice and comment rulemaking
requirements under the APA, 5 U.S.C. 553, or any other statute. This
rule is not subject to
[[Page 71838]]
notice and comment requirements, because the Agency has invoked the APA
``good cause'' exemption under 5 U.S.C. 553(b). See Unit I.B.2. for
additional discussion about the ``good cause'' finding for this action.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This interim
final rule will not impose substantial direct compliance costs on
Indian tribal governments. Thus, Executive Order 13175 does not apply
to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997),
as applying only to those regulatory actions that concern environmental
health or safety risks that the EPA has reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of the Executive Order. This
action is not subject to Executive Order 13045, because it does not
concern an environmental health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This is not a ``significant energy action'' as defined in Executive
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to
have a significant adverse effect on the supply, distribution or use of
energy and has not otherwise been designated by the Administrator of
the Office of Information and Regulatory Affairs as a significant
energy action.
I. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards. As such, NTTAA
section 12(d), 15 U.S.C. 272 note, does not apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14008: Tackling the Climate Crisis at Home and Abroad
In accordance with Executive Order 12898 (59 FR 7629, February 16,
1994) and Executive Order 14008 (86 FR 7619, January 27, 2021), EPA
finds that this action will not result in disproportionately high and
adverse human health, environmental, climate-related, or other
cumulative impacts on disadvantaged communities, as well as the
accompanying economic challenges of such impacts during this
administrative action to extend the expiration date. This extension
will provide EPA and the certifying authorities an opportunity to
finalize the revised certification plans, ensuring that the increased
protections identified in the 2017 rule are realized for all affected
populations. EPA will continue to work expeditiously with certification
authorities to review and approve plans on a rolling basis. This
engagement, which was impacted by the COVID-19 pandemic, will ensure
the modified plans are appropriately protective of certified pesticide
applicators and those under their direct supervision, and will ensure
that certified applicators are trained to prevent bystander and worker
exposures.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 171
Environmental protection, Applicator competency, Agricultural
worker safety, Certified applicator, Pesticide safety training,
Pesticide worker safety, Pesticides and pests, Restricted use
pesticides.
Dated: December 14, 2021.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
Therefore, for the reasons set forth in the preamble, EPA amends 40
CFR part 171 as follows:
PART 171--CERTIFICATION OF PESTICIDE APPLICATORS
0
1. The authority citation for part 171 is revised to read as follows:
Authority: 7 U.S.C. 136-136y.
Sec. 171.5 [Amended]
0
2. Amend Sec. 171.5 by revising paragraph (c) to read as follows:
* * * * *
(c) Extension of an existing plan during EPA review of proposed
revisions. If by March 4, 2020, a certifying authority has submitted to
EPA a proposed modification of its certification plan pursuant to
subpart D of this part, its certification plan approved by EPA before
March 6, 2017 will remain in effect until EPA has approved or rejected
the modified plan pursuant to Sec. 171.309(a)(4) or November 4, 2022,
whichever is earlier, except as provided in paragraph (d) of this
section and Sec. 171.309(b).
* * * * *
[FR Doc. 2021-27373 Filed 12-17-21; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.