Rule2022-17823
Pesticides; Certification of Pesticide Applicators; Further 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
August 19, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is extending the deadline by which existing certification plans for the certification of restricted use pesticide (RUP) applicators may remain valid until either EPA has approved revised certification plans that conform to the updated federal standards or they expire, whichever is earlier, to November 4, 2023. Federal, state, territory, and tribal certifying authorities with existing certification plans are required to complete revisions to their existing plans conforming with the updated federal standards for RUP applicator certification, and the regulations establish the deadline by which the existing plans will expire unless the revised plans are approved by the Agency. EPA is extending this deadline to allow additional time for any remaining proposed certification plan modifications pending approval 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.
Full Text
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<title>Federal Register, Volume 87 Issue 160 (Friday, August 19, 2022)</title>
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[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Rules and Regulations]
[Pages 50953-50965]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17823]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 171
[EPA-HQ-OPP-2021-0831; FRL-9134.1-04-OCSPP]
RIN 2070-AL01
Pesticides; Certification of Pesticide Applicators; Further
Extension to Expiration Date of Certification Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is extending the
deadline by which existing certification plans for the certification of
restricted use pesticide (RUP) applicators may remain valid until
either EPA has approved revised certification plans that conform to the
updated federal standards or they expire, whichever is earlier, to
November 4, 2023. Federal, state, territory, and tribal certifying
authorities with existing certification plans are required to complete
revisions to their existing plans conforming with the updated federal
standards for RUP applicator certification, and the regulations
establish the deadline by which the existing plans will expire unless
the revised plans are approved by the Agency. EPA is extending this
deadline to allow additional time for any remaining proposed
certification plan modifications pending approval 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.
DATES: This final rule is October 18, 2022.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2021-0831, is available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket) in the Environmental Protection
Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg.,
Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room and the OPP Docket is (202) 566-1744. Please review the
visitor instructions and additional information about the docket
available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
evaluation Division (Mail Code 7508M), 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#f98a9a918b969c9d9c8bd79a988b96958097b99c8998d79e968f"><span class="__cf_email__" data-cfemail="6417070c160b010001164a0705160b081d0a240114054a030b12">[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 many 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 other person who provides
pesticide
[[Page 50954]]
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).
If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.
B. What is the Agency's authority for taking this action?
This action is issued under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, particularly sections
136a(d), 136i, and 136w.
C. What action is the Agency taking?
This action extends the expiration date for existing certification
plans at 40 CFR 171.5(c) from November 4, 2022, to November 4, 2023. No
other changes to the certification standards and requirements specified
in 40 CFR part 171 are being made in this rulemaking.
D. Why is the Agency taking this action?
Without the deadline extension, federal, state, territory, and
tribal certification programs will expire if their revised
certification plans are not approved by the recently modified
regulatory deadline of November 4, 2022 (Ref. 1). Applicators formerly
certified under such expired plans will no longer be allowed to use
RUPs. While all initial draft plans have been reviewed and returned to
the federal, state, territory, and tribal agencies (certifying
authorities) for further revision, the recent extension of eight months
(which extended the original deadline of March 4, 2022, to November 4,
2022) is not sufficient time for all certifying authorities to respond
to EPA comments and to complete the approval process. Additional time
is needed for EPA to work closely with the certifying authorities whose
plans are still pending approval to assure that their proposed
certification plan modifications will meet current federal standards.
As of July 8, 2022, EPA has approved 7 out of 68 revised
certification plans and estimates that approximately half of the plans
should be approved before November 2022. Although significant progress
has been and continues to be made in the development of revised plans
and EPA's subsequent reviews and approvals, COVID-19 resource
constraints early in the review process had impacted the time
certifying authorities have had to respond to EPA's comments and the
Agency's ability to work with certifying authorities to assure that EPA
can approve their plans by the regulatory deadline, thereby causing
delays in reviews, revisions, and approvals. EPA has assessed the
progress and pace of final revisions and approvals and expects the
average certification plan approval process to be completed
approximately a year after certifying authorities have received
feedback from EPA, though this could vary depending upon individual
circumstances as indicated in the responses to the public comments in
Unit III. Given these assessments, EPA anticipates that at least 30 out
of 68 plans might not be approved by the November 2022 deadline due in
part to receiving feedback from EPA later than previously expected or
due to complex issues that still need to be addressed. The plans most
at risk of missing the November 2022 interim final rule (IFR) deadline
account for approximately 39% of commercial applicators and 51% of
private applicators, or about 45% of all currently certified
applicators in the U.S. To avoid disruptions to a significant portion
of the country, further collaboration is still needed between EPA and
the remaining certifying authorities to finalize and approve all plans.
EPA has been and will continue working expeditiously toward approving
and supporting the implementation of plans that meet the current
federal standards and has been providing periodic notifications to the
public in the Federal Register and on EPA's website when those
approvals have occurred. EPA intends to maintain this level of
transparency as it works toward finalizing the remaining plans and aims
to complete this process as quickly as possible. The public may access
the most current information about the Agency's progress at <a href="https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators">https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators</a> (Ref. 2).
EPA finds that an additional one-year extension of the deadline is
needed to assure that applicators certified under a plan that would
otherwise expire will continue to be authorized to use RUPs without
interruption and to provide the remaining certifying authorities with
plans pending approval with adequate time to provide responses 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 ensure their plans meet the updated
federal standards at 40 CFR part 171. EPA believes that the additional
year will provide enough time to complete rolling approval of all
certification plans, while also providing enough time to assess the
individual-based needs of the remaining state, territory, tribal and
federal plans up to the new regulatory deadline.
E. What are the estimated incremental impacts of this action?
Incremental impacts of the extension to the regulatory deadline are
generally positive, because the extension provides certifying
authorities and EPA with more time to ensure that all 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 where plans may expire without the extension (see
discussion in Unit II.B.).
The 2017 Certification of Pesticide Applicators Rule (2017 CPA
Rule) (Ref. 3) established the standards for certifying RUP applicators
and also set a deadline with specific consequences if a certification
plan were to expire. Therefore, EPA relies on information from the 2017
CPA Rule to assess the incremental economic impacts of this proposed
rule to extend the recently modified deadline of November 4, 2022 (Ref.
1), to November 4, 2023. The impacts of the extension are that the
[[Page 50955]]
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 postponed as the implementation of some plans may be
delayed while EPA works with the remaining certifying authorities
toward approval of their revised certification plans.
1. Cost to certifying authorities. The 2017 CPA 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 CPA Rule further provided that
existing plans could remain in effect until March 4, 2022, which was
recently extended to November 4, 2022 (Ref. 1), 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.
Generally, certifying authorities can begin implementing revisions to
their programs when they are approved by EPA; however, depending on
individual state, territory, or tribal procedural requirements and
existing programmatic infrastructure, portions of revised certification
programs may be and, in some cases, already are being implemented in
support of the 2017 CPA Rule requirements. All certifying authorities
submitted their draft revised certification plans to EPA by the March
2020 submission deadline established in the 2017 CPA Rule. Shortly
after the March 2020 deadline, the COVID-19 public health emergency
disrupted the expected schedule of the EPA's review and approval of the
draft plans. EPA and certifying authorities had to temporarily divert
their resources to address pandemic-related issues, resulting in delays
of revised plan reviews, approvals, and implementation than was
originally anticipated. All draft plans have since undergone a detailed
review at EPA and have been returned back to the certifying authorities
for responses, with some having been approved by EPA. Thus, only part
of the cost to certifying authorities estimated in the 2017 CPA Rule
has presently been incurred and some of the cost will be expended
during the additional extension period for those plans awaiting
approval by EPA. Therefore, this rule is not expected to significantly
change the costs to certifying authorities estimated in the 2017
Economic Analysis (EA) (Ref. 4).
2. Cost to certified applicators. The other sectors affected by the
2017 CPA Rule (e.g., commercial and private applicators) do not incur
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. EPA expects that around half of the plans
might not be approved by November 2022, so some of these costs could be
delayed as the remaining plans are approved and implemented over a
longer period of time. Not all costs to certified applicators will be
delayed, as a number of plans have or will soon be approved by EPA.
Moreover, some certifying authorities have already begun work toward
implementing their plans or will be able to start implementing changes
conforming to the 2017 CPA Rule before their plan's approval.
3. Potentially delayed benefits of the 2017 CPA 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 CPA
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 used for the
2017 EA regarding occupational injuries or chemical poisoning
incidents). Incidents may result in harms to applicators, persons in
the vicinity, and the environment. Reported incidents analyzed in the
2017 EA most commonly cited 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 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
CPA Rule, it will delay accrual of some of those benefits, but only
partially as a number of plans have been approved and are currently
being implemented.
Not all the benefits of certification plan revisions will be
delayed for a period of time up to November 4, 2023, however, since
some programs have been approved and begun implementation or will be
able to start implementing changes sooner than the new expiration date
due as they approach approval. Certifying authorities can begin
implementing their revisions to their programs as soon as they are
approved by EPA, and many have begun that work. Since the most recent
extension, EPA plan approvals have begun, with 7 certification plans
having been approved as of July 8, 2022, and more will continue to be
approved on a rolling basis. In some jurisdictions, portions of the
2017 CPA Rule revised certification requirements, such as imposing
minimum age requirements and updating manuals and exam administration
procedures, are already being implemented, resulting in a number of the
benefits of the 2017 CPA Rule 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 protocols, all of which were required to meet or exceed the
new requirements and standards established in the 2017 CPA Rule. While
the new extension will run until November 2023, EPA anticipates
approving plans on a rolling basis to conclude its approval process as
soon as possible.
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
modification that would fully implement the 2017 CPA 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 for
the remaining plans to be completed as discussed in Unit I.E.4.,
outweigh the delayed benefits in those jurisdictions. EPA has approved
7 certification plans to as of July 8, 2022, with more to follow
shortly after, and EPA continues to work expeditiously with certifying
authorities
[[Page 50956]]
to review and approve the remaining plans on a rolling basis. EPA's
ongoing collaboration with the certifying authorities has and will
continue to 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 CPA Rule.
4. Costs of not extending the deadline. If the existing regulatory
deadline is not extended further, it is likely that EPA will be unable
to approve some of the state, territory, tribal, and federal agency
certification plans that may still need additional work and/or
coordination beyond the recently revised November 2022 deadline,
resulting in expiration of these plans. EPA would have to take
responsibility for administering certification programs for a portion
of the country where plans had expired. A gap in coverage would likely
exist between when these certification plans expire and when EPA could
fully implement EPA-administered certification programs, resulting in
RUPs being unavailable for use in those places during the 2023 growing
season and potentially through the end of 2023 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 some applicators could face
higher costs (e.g., due to time commitment changes, new travel expenses
to attend trainings, frequency of access, etc.) or be unable to obtain
certification to apply RUPs. 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 minimum requirements. The benefits of
these more protective state requirements will be lost if the deadline
is not extended and EPA takes over parts of the country's certification
programs.
Furthermore, 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 because in some cases, both
programs are intertwined.
Additionally, EPA would be compelled 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., termite control), pests that threaten state and national
forests, and pests in containerized cargo. Applicators who use RUPs and
are licensed under affected programs would likely lose work and income
as a result.
II. Background and Goals of This Rulemaking
A. Background
On December 20, 2021, EPA issued an IFR that extended the original
expiration date from March 4, 2022, to November 4, 2022 (Ref. 1). Unit
II. of the IFR's preamble provides a summary of the 2017 CPA Rule and
related background, as well as a robust discussion of the various
circumstances that prompted the extension and the rationale the Agency
cited for issuing the IFR.
On February 7, 2022, EPA proposed to extend the November 4, 2022
deadline up to but not longer than November 4, 2024 (Ref. 5). EPA
proposed this additional extension because the Agency recognized that
some certifying authorities and EPA would potentially need more time to
collaborate on and address issues raised during review of the plans,
and the Agency did not have enough information to adequately assess how
much additional time would be needed to complete this process at the
time the proposal was published. EPA expressly requested public comment
on the need for and appropriate length of a longer extension. EPA has
taken these public comments, which are addressed further in Unit III.,
into consideration in concert with the overall status of the plan
approval process to date.
B. Goals of This Rulemaking
An additional extension of the expiration date for existing
certification plans is needed to ensure that any remaining federal,
state, territory, and tribal agencies waiting on certification plan
approval 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 number of State,
territory, and tribal 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 does not act to extend the regulatory deadline, many
existing certification plans that remain in effect pending EPA's review
of submitted certification plan modifications would expire on November
4, 2022, in which case FIFRA (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
had to take on the burden of administering certification programs for
much of the country, it would draw resources away from concluding the
Agency's approval process for the remaining plans and the Agency's
ability to support certifying authorities with implementation of the
certification plans that are approved before the November 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 2023 growing season, which would have potentially
devastating impacts on the agricultural sector in the parts of the
country without approved plans. Moreover, once EPA-administered state
certification programs were 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
[[Page 50957]]
for applicators to satisfy certification requirements. As a result,
significant impacts are expected on the pest control industry in
jurisdictions without an approved plan, 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 2023 growing season, and
significant disruptions could extend even further. This action would
ensure that any remaining work can be completed with minimal impacts.
III. Public Comments
Two 30-day public comment periods were held in relation to
extending the expiration date of existing plans. The first comment
period closed on January 20, 2022, which were in response to the IFR
extending the original expiration date for existing plans from March 4,
2022, to November 4, 2022 (Ref. 1). The second public comment period
closed on March 9, 2022, which addressed the NPRM to further extend the
expiration date up to but not longer than an additional two years, from
November 4, 2022, to November 4, 2024 (Ref. 5). Between the two public
comment periods, EPA received 22 submissions to the docket, comprising
of 20 different commenters. Commenters included members of the public,
state pesticide regulatory agencies and associations, an industry
stakeholder, and farmworker advocacy organizations. A summary of and
EPA's responses to the comments both in support of and in opposition to
the proposed two-year extension are addressed in Units III.A. and B.,
respectively.
A. Support for a Two-Year Extension
1. General Support From Members of the Public
a. Summary of comments. EPA received 12 general comments from
members of the public, 11 of which provided comments that expressed
overall support of EPA's proposal to extend the deadline up to two
years, while one other provided comments not specific to this action.
The comments submitted acknowledged the challenges faced by many during
the COVID-19 public health emergency, and the impacts it has had on
both certifying authorities and EPA's ability to review, respond, and
approve certification plans. Some of these commenters stated that
extensive and thorough review is needed to ensure public safety and to
minimize any risks, and that these reviews should not be rushed through
the process. Some of the commenters also referenced EPA's assessment in
the NPRM on the potential impacts across the various sectors of the
pest control industry, agriculture, and the public overall should
existing plans expire without an approved plan in place, and that two
years to complete these reviews should be enough time to complete
reviews while avoiding disruptions throughout the country.
b. EPA response. EPA appreciates the commenters' general support of
the proposed rule to extend the deadline for amended certification
plans to be approved by the Agency. EPA agrees with the commenters that
additional time is needed to ensure that all certification plans are
thoroughly reviewed and meet or exceed the updated federal standards
for the certification of RUP applicators. While EPA initially proposed
an extension of up to but not longer than two years, in light of other
comments received in response to the NPRM and the progress the Agency
has made on approving plans to date, EPA has determined that an
extension of one additional year, to November 4, 2023, should be
sufficient time to conclude its approval process for all certification
plans submitted to the Agency.
2. Support for an Extension of Two years From State Lead Agencies
(SLAs) and Industry Stakeholders
a. Summary of comments. EPA received one comment from an industry
stakeholder, four comments from SLAs, and two comments from the
Association of American Pesticide Control Officials (AAPCO). In
general, these commenters expressed support for an extension of two
years to November 4, 2024. Their support for a two-year extension
revolved around the need to maintain continuity for pesticide
applicators and expressed general concerns on both the economic and
environmental aspects of plans expiring if all are not approved by the
revised expiration date established in the IFR. More specific comments
and EPA's responses are provided in the following sections.
i. The IFR extension to November 4, 2022, is insufficient. AAPCO
and the three SLAs who submitted comments to EPA all expressed support
for EPA's IFR extending the deadline to November 4, 2022, given the
pressures that COVID-19 had on completing EPA reviews and approvals and
the limited amount of time the certifying authorities had to respond to
EPA's feedback leading up to the original deadline of March 4, 2022.
However, all expressed concern that the additional eight months
provided in the IFR would not be enough time for all certifying
authorities to review and respond to EPA's input and for EPA to approve
them before the existing plans are set to expire.
The commenters noted that slightly more than half of the plans
submitted to EPA at the time of the IFR publication had been returned
to the certifying authorities, and that the remaining would likely not
be returned to the certifying authorities until February 2022 according
to the IFR assessments. In their submitted comments, AAPCO reported
that in a survey conducted of its membership that concluded on February
25, 2022, some detailed reviews took EPA 17 to 22 or more months to
return since the certifying authorities first submitted their plans to
EPA, with four certifying authorities indicating they had not yet
received their detailed review comments prior to the conclusion of
their survey. As of February 25, 2022, approximately six certifying
authorities indicated they had returned their revisions for approval,
and that no certifying authority had yet received approval from EPA.
Based on the time it has taken to complete the detailed review of the
plans and to revise plans in response to EPA's reviews, the commenters
felt that the additional eight months in the IFR did not seem adequate
for EPA to complete the final reviews and approval processes for all of
the revised plans. The commenters acknowledged that extensive review is
necessary to ensure revised plans meet the requirements of the 2017 CPA
Rule, and that the level of detail and the length of time until
completion of EPA's review and approval ensures that revised plans meet
the federal requirements and provide the necessary protections to
pesticides applicators, those under their supervision, and bystanders.
The commenters also recognized the impacts COVID-19 had on EPA's
ability to complete the review and approvals by the original deadline
and believe the impacts will potentially impacting conclusion of
reviews leading up to the revised IFR deadline.
Given that EPA needed more time to complete its reviews, the SLA
commenters requested that EPA acknowledge the impacts of COVID-19 on
their programs and resources and to provide the same time allowances
the Agency took to review the plans so that certifying authorities can
appropriately respond to the extensive comments and ultimately
implement the final approved plans. Specifically, commenters cited the
challenges
[[Page 50958]]
certifying authorities have faced attempting to overhaul their
certification plans, such as the complexities and administrative
hurdles it faces such as on-going state-level legislative factors, and
these particular challenges must be considered in the review and
approval process. The commenters did not believe that all certifying
authorities, especially those who did not receive EPA input until
February 2022, could complete these tasks by the November 2022
deadline, and that the certifying authorities that received their plans
later should be given an equitable amount of time to respond to
comments.
ii. Requests for a two-year extension to November 4, 2024. AAPCO,
the SLAs, and the industry stakeholder all recommended that EPA extend
the deadline for two years to November 4, 2024. Citing the delays that
were discussed in comments in Unit III.A.2.b., commenters stated that
while they are committed to implementing the changes under the 2017 CPA
Rule, it is conceivable that an additional round of review to verify
that any remaining issues have been addressed by the certifying
authority could push the plan approval process beyond the IFR
expiration date of November 4, 2022. Given the complexity of issues
across the states, differences in legislative schedules and bills and
administrative requirements that impacts state licensing programs, the
commenters felt that these additional considerations warrant a further
extension of two years to avoid potential negative impacts to farmers,
ranchers, foresters, structural pest control professionals, and other
industries and the public.
b. EPA response. EPA agrees with the commenters that additional
time is needed to ensure that all certification plans are thoroughly
reviewed and meet or exceed the updated federal standards for the
certification of RUP applicators. EPA also agrees with the commenters
that certifying authorities who received their plans late should be
given adequate time to review and respond to EPA's comments and
acknowledges that there continues to be a need for EPA and some of the
certifying authorities to collaborate on completing their plans. EPA
agrees with the commenters that an additional extension ensures
continual protection of pesticide applicators, provides EPA and
certifying authorities the time needed to continue to work together to
realize approval of plans and ultimately successful implementation of
the 2017 CPA Rule, and avoids unintended economic and environmental
risks associated with lapsed certification plans in any jurisdiction
without an approved certification program in place.
While EPA initially proposed an extension of up to but not longer
than two years, in light of other comments received in response to the
NPRM and the progress the Agency has made on approving plans to date,
EPA has determined that an extension of one additional year, to
November 4, 2023, should be sufficient time to conclude its approval
process for all certification plans submitted to the Agency. Based on
the timelines from EPA's most recently approved plans and ongoing
collaboration with the certifying authorities, EPA estimates that most
revisions by the certifying authorities, and EPA's second pass review
and collaboration with the certifying authorities to complete the
approval process, will take on average a year after having been
returned to the certifying authority. The certifying authorities most
at risk of not having their plans approved are those who had received
their plans late, as indicated in the comments submitted by AAPCO.
Additionally, several other plans with more complex issues or
administrative requirements are expected to take longer to approve than
average and will likely also miss the November 2022 deadline. As noted
in one of the state agency's comments, EPA recognizes that there may be
unforeseen circumstances or additional complexities within each state,
tribe, or territory's internal legislative or administrative processes
that may result in the final revision and approval process taking
additional time beyond EPA's average estimates. While EPA expects to
approve around half of the plans before November 2022, the Agency has
identified at least 30 out of 68 plans that are the most at risk of
missing the IFR deadline of November 4, 2022. The Agency is confident,
however, that all plan approvals can be concluded before the new
deadline of November 4, 2023.
B. Opposition to a Two-Year Extension
EPA received three comments in opposition to the extension from two
groups, which included a group of farmworker advocacy organizations who
provided joint comments on both the IFR and NPRM, and a group of former
regulators who provided comments on the NPRM. In summary, both
commenters opposed the proposal to extend the existing deadline for an
additional two years up to November 4, 2024, though each had different
perspectives on appropriate approaches and length of potential
extensions, which are addressed in the following sections.
1. Delay Beyond November 4, 2022, Is Unacceptable and Would Undermine
2017 CPA Rule
a. Summary of comments. The farmworker advocacy commenters state
that at the time EPA adopted the 2017 CPA Rule, the previously existing
rule had not been meaningfully updated in approximately 40 years and
were under-protective, and that the 2017 CPA Rule imposed stricter
certification and training standards that were necessary to meet the
FIFRA mandate to ensure that RUPs do not cause unreasonable adverse
effects to applicators, workers, the public, or the environment. The
commenters state that until all plans are updated and approved by EPA
as consistent with 2017 CPA Rule, applicators, workers, their families,
communities, and others will remain at heightened risk of harm from
RUPs.
Among the changes made in the 2017 CPA Rule, the farmworker
advocacy groups cited requirements that were particularly important to
their organizations, members, and constituents, including: Increasing
the minimum age of 18 to be certified as commercial or private
applicator as well as performing work as a non-certified applicator
under their direct supervision; The creation of new categories for
those performing aerial pest control, soil fumigation, and non-soil
fumigation to increase training content to avert drift during spray
applications; and, The addition of training requirements for non-
certified applicators who work under the direct supervision of a
certified applicator to ensure they have frequent and adequate training
of pesticides and pesticide use. The farmworker advocacy commenters
felt that so long as certifying authorities implementing certification
programs exclude some of the requirements in the 2017 CPA Rule, high
rates of preventable acute and chronic illness will persist among RUP
applicators and the broader public. The commenters also referenced PCUN
v. Pruitt (Ref. 6) in which EPA lost a previous attempt at extending
the 2017 CPA Rule's effective date. The commenters relied on the
opinion for this case, which stated that if implementation of the 2017
CPA Rule were to be delayed, individuals will continue to be exposed to
these dangers and will not benefit from the more stringent regulations
provided by the revised regulations, as additional support for why an
additional extension to the existing plans should not be finalized.
Commenters who opposed the additional two-year extension did not
believe that EPA adequately explained
[[Page 50959]]
why a two-year extension (from November 4, 2022, up to November 4,
2024) was necessary, and that it is difficult to understand the
justification of extending the deadline to what amounts to a nearly
three-year extension beyond the original deadline of March 4, 2022.
Commenters urged that it would be helpful to have details on the status
of EPA's review of all 68 submissions, and when the Agency estimates
its reviews and approvals to completed, in order to understand the need
for an additional extension to the deadline.
In the comments submitted jointly by farmworker advocacy
organizations, the commenters expressed disappointment by the IFR
extension and were not persuaded that there was a need for any
extension of the deadline beyond November 4, 2022. The commenters
stated that under the 2017 CPA Rule, the Agency had two full years
since the March 2020 deadline for receiving states, territories, and
tribes' draft updated certification plans to review those plans, work
with the submitters as needed to revise them, and then approve
compliant plans before the old, non-compliant plans expired. They also
argue that while EPA points to COVID-19 to justify its IFR extension,
the dangers farmworkers, agricultural workers, and non-certified
applicators face from COVID-19 underscore why the new standards and
training should go into effect without further delay, noting that
agricultural workers are at greater risk from COVID-19 than the general
public for a variety of reasons, including that they have had less
access to vaccines, are often unable to miss work when they are sick,
have limited ability to social distance, and often lack access to a
supply of adequate masks. Moreover, they state that a disproportionate
number of agricultural workers suffer from health problems, such as
obesity and high blood pressure, which predispose them to a more
serious course of COVID if they become infected. As a result, they
argue that agricultural workers' exposures to certain pesticides can
result in inflammation and other health effects that make them even
more susceptible to getting COVID-19, and more likely to have serious
effects if they do. The commenters expressed a concern that delayed
implementation of the 2017 CPA Rule will increase agricultural workers'
exposure to RUPs, thereby compromising their health and further
jeopardizing their ability to avoid COVID-19 infection or recover
quickly. The commenters also suggest that even if COVID-19 could
justify an extension, the eight-month extension adopted in the IFR
should be sufficient to make up for the lost time in the initial months
of responding to the pandemic.
The farmworker advocacy groups go on to state that based on EPA's
assessment and representation of the progress it has made in the NPRM,
citing that all plans would be returned to the certifying authorities
in February 2022, and that it appeared to be on track to meet the
November 2022 deadline, that an additional two-year extension was
unnecessary. The commenters stated that they understood that once the
plans were returned to the certifying authorities, EPA's work would not
be done because those certifying authorities will need to respond to
EPA's comments and make revisions so that their certification plans are
approvable, and that EPA will need to be a collaborator in this
process, and then approve the plans once compliant. However, the
commenters stated that if EPA treats this work as a priority, then they
believe the extension EPA has already given itself in the IFR should be
sufficient time to complete this process, especially given the
significant progress that the Agency has already claimed had been made
in the development of revised plans and EPA's subsequent reviews.
b. EPA response. EPA agrees with the commenters about the
importance of the 2017 CPA Rule and the beneficial impacts that updated
certification plans will provide to applicators, workers, the public,
and the environment, and the Agency is prioritizing its efforts to
ensure that its reviews and any subsequent revisions are thorough
before approving the plans. These revisions were intended to reduce
occupational pesticide exposure and the incidence of related illness
among certified applicators, noncertified applicators working under
their direct supervision, and agricultural workers, and to ensure that
when used according to their labeling, RUPs do not cause unreasonable
adverse effects to applicators, workers, the public, or the
environment. Discussions with state regulatory partners and key
stakeholders over many years, together with EPA's review of incident
data, led EPA to make these important changes, and implementing these
changes is a top priority for the Agency.
While EPA found that the 2017 CPA Rule changes were necessary to
reduce occupational and bystander exposures and stands by the
administrative record for that rule, the Agency finds that it is also
necessary to take into account the economic, social, and environmental
costs and benefits of the use of any pesticide. Though the impacts of
potentially delayed benefits are an important consideration on any
length of time EPA extends the expiration date of existing plans, this
rulemaking must also take into consideration the potential economic,
social, and human health impacts associated with the potential for any
of the state, tribal, or territory programs to expire, and the
potential impact that may have on business and industries to those who
rely on their pest control services, including the general public. The
Agency has discussed these concerns and issues more comprehensively in
Unit I.E.
EPA notes that when it issued the NPRM, the Agency did not have
enough information to assess the costs and impacts of any extension nor
how much time would be needed to complete all reviews, and therefore,
the Agency used a qualitative assessment with broad assumptions that
all certifying authorities would need additional time beyond November
2022. However, the Agency stated that it intended to conclude all of
its detailed reviews by February 2022 and to begin approving plans
shortly after once they were returned to the certifying authorities.
EPA also committed in the proposal to work expeditiously toward
concluding this process to limit the potential impacts of delayed
implementation, with the first plans being approved in March 2022. As
of July 8, 2022, EPA has approved 7 plans and continues to make
considerable progress toward approving plans that certifying
authorities can begin to implement or work toward implementation
immediately. EPA expects to approve approximately half of the
certification plans by November 2022.
Based on the pace that EPA has established in working with
certifying authorities on final plan revisions and ultimately approving
certification plans since the promulgation of the IFR extension date,
EPA estimates that a certification plan approval can take approximately
a year or more after the certifying authority has received EPA's
feedback and responded to those comments accordingly. This is largely
dependent on when comments were returned to the certifying authority,
the quantity and complexity of the feedback EPA provided to the
certifying authority, and whether there are any other legislative or
administrative processes and considerations within the jurisdiction
that must be addressed before resubmission to EPA for approval. The
certifying authorities who received EPA comments after October 2021 and
those with more complex
[[Page 50960]]
issues and administrative requirements are the most at risk of missing
the IFR deadline of November 2022.
Because a substantial number of certifying authorities require
additional time to complete this process, EPA still finds that a
regulatory deadline extension is needed, though EPA has reconsidered
the length of time it originally proposed. Based on the concerns
expressed by farmworker advocacy organizations regarding delayed
benefits and the countervailing concerns expressed by the certifying
authorities about their ability to respond to EPA comments and to
conclude the plan approval process before the IFR deadline, EPA
believes that a one-year extension instead of the proposed two-year
extension should provide adequate time to complete the plans that are
expected to remain in the review and approval process after November
2022. EPA also discusses this decision in Unit III.B.3. regarding
presented options to the Agency as an alternative to the proposal. EPA
remains committed to concluding these reviews as soon as possible and
keeping the Agency's website updated on its progress as they happen.
Based on its progress, EPA anticipates remaining plans will be approved
before the new extension date of November 4, 2023.
To maintain transparency in the progress of the certification plan
approvals, EPA has established and maintains information on the current
status of certification plan approvals on its website (Ref. 2). The
status table on this web page is updated frequently with information as
plans are returned back to the certifying authority for additional
revision, whether revisions were resubmitted to the Agency, and when
the Agency has approved plans. Additionally, EPA intends to formally
provide batch Federal Register notices on a quarterly basis identifying
the certification plans that have been approved and started the
implementation phase.
2. Proposed Extension Rule Violates and Is Not Exempt From the National
Environmental Policy Act (NEPA).
a. Summary of comment. The farmworker advocacy commenters are
concerned that EPA violated NEPA (42 U.S.C. 4321 et seq.) by failing to
consider the significant environmental and health impacts of, and
alternatives to the Proposed Rule. They argue that extending the
existing plans' expiration date by another two years constitutes a
major federal action that has foreseeable environmental and public
health consequences and thus required the Agency to comply with NEPA.
They argue that the proposed rule is a major federal action that does
not qualify for a categorical exclusion from NEPA compliance and will
have a significantly adverse effect on the environment and public
health. They argue that EPA's failure to consider, let alone disclose,
these impacts and to take the needed hard look at ``the direct,
indirect, or cumulative'' impacts of its proposed action is in direct
violation of NEPA's purpose to ensure both the agency and public are
aware of the potentially adverse effects of the agency action.
Moreover, the commenters argue that the two-year delay in
implementing the 2017 CPA Rule constitutes official policy in that it
will substantially alter EPA's initial action to ensure that the much-
needed 2017 CPA Rule is implemented in a timely manner to provide
needed protections for the use of the most dangerous pesticides. They
state that EPA's own regulations acknowledges that RUPs cause
unreasonable adverse effects on the environment even when applied in
accordance with the currently prescribed uses, and that EPA found
adoption of the 2017 CPA Rule necessary to ensure that RUPs do not
cause unreasonable adverse effects to applicators, workers, the public,
or the environment. The commenter also cites the previous
Administration's attempt to delay the 2017 CPA Rule several times,
which was stopped in court (Ref. 6). The commenters state that EPA
cannot now propose such a lengthy delay absent considering the on-the-
ground, adverse impacts to the environment and human health from
allowing RUPs to be applied absent the protections guaranteed by the
2017 CPA Rule.
For these reasons, the commenter argues that EPA needed to take the
requisite hard look at the foreseeable impacts of delaying this rule
another two full years, and likewise to consider a reasonable range of
alternatives. The commenter states that EPA did not even reference
NEPA, let alone explain how, if at all, the two-year delay of the
protections guaranteed by the 2017 CPA Rule, does not require NEPA
analysis. Numerous cases, however, have held that when proposed
regulations have foreseeable environmental consequences, the agency
must complete the NEPA process by preparing an Environmental Assessment
or EIS.
The commenter states that EPA needs to satisfy the dual
requirements of NEPA to inform agency decision-makers of the
environmental effects of proposed major federal actions and to ensure
that relevant information is made available to the public. Delaying the
2017 CPA Rule's implementation by two years with no analysis of impacts
or alternatives violates NEPA.
b. EPA response. While EPA thanks the commenter for their feedback,
years of jurisprudence demonstrates that EPA actions under FIFRA are
not subject to NEPA requirements under the NEPA Functional Equivalence
Exemption. The Functional Equivalence Exemption first arose in Portland
Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (``Portland
Cement'') which involved the promulgation of new source performance
standards under section 111 of the Clean Air Act (CAA). Plaintiffs
challenged the Agency's decision to promulgate the standards without
preparing an environmental impact statement (EIS).
The Portland Cement court considered several arguments for why NEPA
should not apply in this case and decided against granting EPA a broad
exemption from NEPA compliance. Id. at 385. In holding that CAA section
111, properly construed, was functionally equivalent to a NEPA
environmental impact statement, the court considered these factors: (1)
CAA section 111 required that the Administrator accompany a proposed
standard with a statement of reasons; (2) Said statement set forth the
environmental considerations, pro and con which have been taken into
account as required by the CAA; (3) The proposed rule provided notice
and an opportunity for public comment; and (4) There was an opportunity
for judicial review. Id. at 384-386. The court acknowledged that the
rulemaking process provided a ``workable balance'' between some of the
advantages and disadvantages of full application of NEPA. Id. at 386.
The court was clear when it stated that ``NEPA must be accorded full
vitality as to non-environmental agencies.'' Id. at 387.
The NEPA Functional Equivalence Test was first applied to a FIFRA
action in Envtl. Defense Fund, Inc. v. EPA, 489 F.2d 1247 (D.C. Cir.
1973). In this case, several parties petitioned the Court for review of
EPA's FIFRA order cancelling almost all registrations for use of DDT,
in part on the ground that the order did not comply with NEPA
requirements. On the NEPA claim, the court concluded that ``where an
agency is engaged primarily in an examination of environmental
questions, where substantive and procedural standards ensure full and
adequate consideration of environmental issues, then formal compliance
with NEPA is not necessary, but functional compliance is sufficient.''
EDF at 1257.
[[Page 50961]]
The court found that the rationale developed in Portland Cement
applied in this case and that ``an exemption from the strict letter of
the NEPA requirements'' was appropriate. EDF at 1256. The court
considered that FIFRA requires that pesticides be deregistered if they
will be injurious to man and his environment and that this standard
placed ``great emphasis on the quality of man's environment.'' Id.
Further, the court found that FIFRA's procedural standards provided the
opportunity for thorough consideration of the environmental issues and
provided for judicial review. Id. In this case, EPA held hearings,
solicited public comment and considered a wide scope of environmental
aspects. Id. The court found that the functional equivalent of a NEPA
investigation was provided because ``all of the five core NEPA issues
were carefully considered: the environmental impact of the action,
possible adverse environmental effects, possible alternatives, the
relationship between long-and short-term uses and goals, and any
irreversible commitments of resources--all received attention during
the hearings and decision-making process.'' Id.
In State of Wyo. v. Hathaway, 525 F.2d 66 (10th Cir. 1975)
(``Hathaway''), another FIFRA case involving suspending the
registration of certain pesticides without preparation of an EIS, the
Tenth Circuit Court of Appeals based the NEPA exemption on broader
grounds than those in Portland Cement. ``At the time that NEPA was
passed the EPA had not been organized. Furthermore, the substance of
NEPA is such as to itself exempt EPA from the requirement of filing an
impact statement. Its object is to develop in the other departments of
the government a consciousness of environmental consequences. The
impact statement is merely an implement devised by Congress to require
government agencies to think about and weigh environmental factors
before acting. Considered in this light, an organization like EPA whose
regulatory activities are necessarily concerned with environmental
consequences need not stop in the middle of its proceedings in order to
issue a separate and distinct impact statement just to be issuing it.
To so require would decrease environmental protection activity rather
than increase it. If EPA fails to give ample environmental
consideration to its orders, its failure in this regard can be
corrected when the order is judicially reviewed.'' Hathaway at 71-72.
Finally, in Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986)
(``Merrell''), the only legal issue was whether EPA was required to
comply with NEPA before it registered seven herbicides under FIFRA. The
Ninth Circuit affirmed the district court decision that EPA did not
need to comply with NEPA. Merrell at 776. It came to that conclusion
after examining FIFRA's registration procedure, its registration
standard, and the applicable review procedures. Id. The Ninth Circuit
focused its analysis on the differences, rather than the similarities,
of FIFRA and NEPA in reaching its decision.
The Ninth Circuit looked at the fact that EPA did not revise its
regulations to require NEPA compliance and that Congress amended FIFRA
several times in the 1970s and 1980s by adding environmental provisions
and limited public participation procedures rather than mandating that
EPA comply with NEPA. Id. at 778-780. The Ninth Circuit recognized that
the FIFRA amendments reflected a compromise between environmentalists,
farmers and manufacturers and that ``(t)o apply NEPA to FIFRA's
registration process would sabotage the delicate machinery that
Congress designed to register new pesticides.'' Id. at 779.
Here, it is clear the NEPA Functional Equivalence Doctrine exempts
EPA's extension of the deadline for the expiration of current
certification and training plans from NEPA compliance. Applying the
Functional Equivalence Test factors: (1) The authority for the current
extension of the deadline comes from FIFRA sections 6(d), 11 and 25,
each of which set certain standards and procedural requirements for
promulgation of actions; (2) Both the proposed and current final rule
extending the deadline have taken into account environmental
considerations, such as a reduction in incidents causing harm to the
environment, costs and benefits, and alternative options; (3) The
proposal accompanying this final rule provided an opportunity for
public notice and comment and both the proposal and this final rule
involve consultation with USDA as well as SAP; and finally (4) Upon
finalization of this rule, there will be opportunity for judicial
review. Moreover, the Hathaway and Merrell cases further demonstrate
that EPA's extension of the deadline for expiration of current plans
should not be subject to NEPA requirements.
In Merrell, the Ninth Circuit recognized Congress amended FIFRA
several times in the 1970s and 1980s by adding environmental provisions
and limited public participation procedures rather than mandating that
EPA comply with NEPA, further demonstrating Congressional intent that
EPA need not comply with NEPA in FIFRA registration actions. FIFRA
section 25, which mandates the authority of the Administrator and sets
requirements for rulemaking under FIFRA, was also amended several times
since the establishment of NEPA, most recently in 1996. The fact that
Congress chose not to amend Section 25 of FIFRA to include compliance
with NEPA further illustrates Congress's intent that EPA need not
comply with NEPA in promulgating regulations under FIFRA. Finally, in
Hathaway, the Tenth Circuit found that the substance of NEPA is such as
to itself exempt EPA from the requirement of filing an impact statement
and that an organization like EPA whose regulatory activities are
necessarily concerned with environmental consequences need not stop in
the middle of its proceedings in order to issue a separate and distinct
impact statement just to be issuing it. For these reasons, EPA's
current rule extending the expiration deadline of current certification
and training plans is exempt from compliance with NEPA.
3. Alternatives to a Two-Year Extension to the Deadline
a. Summary of comment. The comments from former regulators stated
that it was unwise and unnecessary to extend the existing certification
plans for all certifying entities for two additional years. In their
view, they felt that nearly six years should ordinarily be more than
sufficient to complete the revision and approval process, but they
recognized the extraordinary pressures that the COVID-19 pandemic has
caused and understood that some further time might be needed for some
certifying entities to finish their work. However, the commenter was
not convinced that two years was necessary to complete this work,
particularly considering EPA's assessment in the NPRM that a
substantial number of plans were expected to be approved by November 4,
2022. A major concern expressed was related to whether such an
extension would reduce the sense of urgency to complete revisions and
approvals if extended up to two years, as well whether it would reduce
a sense of urgency to implement those changes. Instead of a two-year
extension, the commenter offered several alternatives to consider.
i. Conditional extensions: The commenter recommended that EPA issue
a final rule that gives itself the authority to grant legitimately
needed extensions on a case-by-case basis. Under such authority, the
Agency could carefully examine the status of its review of each
certifying entity's
[[Page 50962]]
submission and extend the expiration date of the entity's existing
certification plan only for as long as necessary to allow submission
and approval of a revised plan that meets the new requirements of EPA's
2017 CPA Rule amendments to 40 CFR part 171.
In the comment, they noted that neither the 2017 CPA Rule, the 2021
IFR, nor the 2022 NPRM contained any provision setting a deadline for
implementation of new elements of the revised plans, and that according
to EPA, a revised plan must set out the entity's proposed
implementation schedule. The commenter understood that, once EPA
approves a revised plan, a certifying entity will be bound by the
implementation schedule in its newly approved certification plan to put
the required changes into practice, and that, as those changes are
made, they will supersede the existing certification plan.
The commenter recommended that any final extension rule should
require a certifying authority to implement new elements of its
certification plan as soon as possible, and in many cases that would be
before EPA approves the full plan. Once the Agency has determined that
a particular part of an entity's revised plan is acceptable, the
commenter felt that there was no reason why the entity could not begin
immediately to make it operational. The commenter also recommended that
EPA require the entity to begin implementation of an element as soon as
it is accepted by the agency. For example, the commenter believed that
in most, if not all states, a certifying entity could quickly start to
enhance the security around the administration of certification exams.
Entities can also require photo-identification from test takers, and
they can take other steps to minimize cheating. The quicker new
elements become effective, the sooner the expected benefits of the 2017
CPA Rule will be realized.
ii. Incentivize certifying entities to complete the CPA plan
approval process. Under the current and proposed rules, certifying
entities do not have strong incentives to complete the certification
plan approval process. The commenter suggested that the prospect that
EPA will not approve a plan and will instead administer a federally run
certification plan clearly provides some incentive, and that certifying
entities and the users of RUPs would probably prefer not to have to
deal with an EPA program. The commenter felt that the EPA program would
almost certainly be less convenient in many ways, but, if EPA is
willing to extend existing certification plans as long as the approval
process continues, certifying entities may feel little worry about the
threat of an EPA takeover of their CPA programs.
The commenter also stated that EPA could issue a final rule that
gives certifying entities more compelling reasons to try to secure EPA
approval of their plans as quickly as possible. For example, the
commenter suggested that EPA's final rule could give itself authority
to withhold or reduce FIFRA programmatic and enforcement grants from an
entity if, in the agency's view, the entity is not making reasonable
progress toward completion of the certification plan approval process.
The commenter suggested that EPA could also consider other ways it
could incentivize entities to move expeditiously to finish the approval
process.
iii. Promulgate a rule that directly implements requirements of the
2017 CPA Rule. The commenter states that the 2017 CPA Rule establishes
a series of very important requirements that a certifying entity must
meet if it wishes to administer a certification plan, and that many of
these requirements would directly affect the users of RUPs who wish to
become certified. For example, EPA's 2017 CPA Rule prohibits an entity
from issuing an applicator certification to anyone younger than 18
years old and requires that the entity prohibit anyone younger than 18
from using a RUP under the direct supervision of a certified
applicator. In addition, the 2017 CPA Rule prohibits the application of
a RUP by an uncertified individual under the direct supervision of a
certified applicator unless the individual has received certain basic
training. The 2017 CPA Rule also requires an entity to establish a
renewal period of no longer than five years for applicator
certifications. These requirements, as the commenter notes, are not
self-executing. To apply to RUP users within its jurisdiction, a
certifying authority must codify the requirements in statutes or
regulations.
To ensure that CPA protections become realized, the commenter
recommended an option that EPA promulgate a rule that makes them
binding on RUP users, without depending on the actions of a certifying
authority. The commenter suggested that EPA could use its authority
under FIFRA section 3(d)(1)(C)(ii) to issue rules establishing
additional ``other regulatory restrictions'' on pesticides classified
for use only by certified applicators. The commenter stated that such a
rule, at a minimum, should prohibit the use of a RUP product by any
person who is younger than 18 and prohibit use by an uncertified
individual who has not received the basic training specified in the
2017 CPA Rule. The commenter also suggested that EPA could consider a
rule which provides that no applicator certification shall be valid for
longer than five years; in effect, such a provision would mandate the
periodic renewal of applicator certifications.
iv. Blanket extension of up to one-year. The commenter recognized
that EPA may determine that recommendations in Unit III.B.3.a.i.
through iii. should not be implemented in the final rule because the
recommendations could arguably be deemed to not be a ``logical
outgrowth'' of the NPRM. If the Agency were to make such a
determination, the commenter encouraged the Agency to consider
incorporating these recommendations into any future rulemaking that
might address further extension of existing certification plans while
EPA reviews continue. For example, if the Agency decides to grant a
shorter, across-the-board extension than it had proposed, they
acknowledge that there may still be a legitimate need for some
additional case-by-case extensions. If EPA were to decide to conduct
another rulemaking to grant such extensions, the commenter felt the
recommendations that were not accepted could be addressed then.
Instead, the commenter suggested that if EPA decides not to
finalize a rule to allow case-by-case extension decisions, then the
Agency should only extend the deadline for existing certification plans
as long as needed to review and approve a majority of certification
plans. The commenter recommended that the extension issued by this
rulemaking should be no longer than a year (i.e., to no later than
November 4, 2023). The shorter duration of the extension, they felt,
would create a greater sense of urgency for certifying entities to
complete their work to prepare acceptable plans.
The commenter's primary reason for limiting an extension to one
year is to create a sense of urgency for completing the process and to
allow EPA, only if necessary, to formulate and promulgate a second
rule, which would take a more thoughtful and nuanced approach than the
current rulemaking to granting additional extensions. The commenter
suggested that if it appears that, at the end of any extension issued
pursuant to this rulemaking, there are likely to be entities that still
legitimately need additional time to complete the review and approval
process, the commenter stated EPA could promulgate another rule
granting additional extensions. But, rather than an automatic, across-
the-
[[Page 50963]]
board extension for everyone, the commenter recommended that such
additional rules should provide the Agency with discretion to grant an
entity an additional extension only for as long as it appears
reasonably necessary. Thus, the commenter recommended that additional
extensions should be granted on a case-by-case basis to entities,
understanding that the length of time may vary from entity to entity.
The commenter felt that not only could the duration of these extensions
be tailored to each certifying authority's situation; but also, the
approval of an extension could require, while the review continues, the
certifying authority to implement all accepted plan elements as quickly
as possible (rather than wait for all outstanding issues to be
resolved). Moreover, the commenter felt that such a rule could give EPA
the option to reduce the FIFRA enforcement and FIFRA programmatic
grants awarded to an entity until EPA approves the entity's plan.
b. EPA response. EPA appreciates the commenter's feedback and
recommendations for additional options other than EPA's proposal of
extending the deadline up to but not longer than two years, to November
2024. At the time the NPRM published, EPA did not have enough
information to determine an appropriate length of time for an
additional extension, and as a result, proposed up to but not longer
than two years. EPA's intent for the proposal was primarily to solicit
information on an appropriate extension length while signaling EPA's
desire to not go beyond two years in any extension it would consider.
Due to the progress that has been made by EPA in concluding its reviews
and approving revised certification plans and the feedback provided in
public comments, EPA agrees with the commenter that it is now
unnecessary to extend the deadline up to November 2024, though the
Agency has determined that an extension is still needed. As of July 8,
2022, EPA has approved 7 certification plans and estimates that
approximately half of all certification plans will be approved prior to
November 4, 2022 (see Ref. 2 for current status information). While
considerable progress has been made in the approval process, EPA
estimates that approximately 30 certification plans are the most at
risk of not meeting the deadline of November 4, 2022. Considering all
of the options presented in the recommendations to EPA and the
substantial number of plan approvals that remain, the Agency has
determined that the best approach moving forward is to extend the
deadline one year to November 4, 2023.
EPA believes that based on the current status of plan approvals and
feedback received from stakeholders, the best option for moving for is
an additional one-year extension, rather than the alternative options
suggested by the commenters, including conditional approvals,
incentivization, or direct implementation. However, since EPA expects
to complete its approvals for approximately half of the plans by
November 2022, EPA agrees that the proposed maximum extension of two
years is no longer necessary. Based on the pace that EPA has
established in working with certifying authorities on final plan
revisions and ultimately approving certification plans since the
promulgation of the IFR extension date, EPA estimates that a
certification plan approval can take approximately a year after the
certifying authority has received EPA's feedback and revised their plan
accordingly. The Agency is confident that it can approve all remaining
plans before November 4, 2023. However, the Agency notes that if the
additional one-year extension turns out not to be sufficient to approve
all remaining plans, the Agency may, at a later date, consider
additional rulemaking and other options like conditional approval of
plans. EPA emphasizes its confidence that all plans will be approved by
November 2023 and that the Agency is not considering alternative
options at this time.
IV. New Deadline for Certification Plan Approvals
Based on the public comments and EPA's assessment of the
certification plan approval process to date, EPA is extending the
deadline provided in 40 CFR 171.5(c) for amended certification plans to
be approved without interruption of the existing certification plans
for one year, from November 4, 2022, to November 4, 2023. This
additional time is necessary to assure that the remaining certifying
authorities who received their plans late in the process have enough
time to present approvable certification plans, and for EPA to continue
working closely with those state, territory, and tribal agencies on
necessary modifications, and ultimately approve their certification
plans. EPA anticipates that the remaining certification plans pending
approval will be completed within six to nine months after November
2022, but the Agency has opted to extend the deadline by one full year
in the event that unforeseen circumstances or any internal legislative
or administrative issues need additional time to be resolved. EPA has
been and will continue to issue notices of certification plan approvals
periodically to the public in batched notices in the Federal Register
and on EPA's website (Ref. 2) as they are approved.
Since approximately half of the certification plans are anticipated
to be approved by November 2022, the Agency does not expect at this
time to propose or issue an additional blanket extension of this
expiration deadline for existing plans beyond November 4, 2023. The
extension in this final rule should provide the necessary time for all
remaining certifying authorities to respond to EPA comments and for EPA
to review and approve those changes. In the unlikely event that a
certification plan is at risk of not meeting the new deadline, EPA does
plan to further assess all potential options, including those presented
in Unit III.B.3., to determine the best approach moving forward.
V. 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;
Extension to Expiration Date of Certification Plans; Interim Final
Rule. Federal Register. 86 FR 71831, December 20, 2021 (FRL 9134-02-
OCSPP).
2. EPA. ``Certification Standards of Pesticide Applicators.''
website provides latest status of Certified Applicator Plans.
<a href="https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators">https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators</a>.
3. EPA. Pesticides; Certification of Pesticide Applicators; Final
Rule. Federal Register. 82 FR 952, January 4, 2017 (FRL-9956-70).
4. 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.
5. EPA. Pesticides; Certification of Pesticide Applicators; Further
Extension to Expiration Date of Certification Plans; Proposed Rule.
Federal Register. 87 FR 6821, February 7, 2022 (FRL-9134.1-01-
OCSPP).
6. Pineros y Campesinos Unidos del Noroeste, et al., v. Pruitt, et
al., Case No.
[[Page 50964]]
17-CV-03434 (N.D. Cal. filed June 4, 2017); 293 F. Supp. 3d 1062
(N.D. Cal. 2018).
VI. FIFRA Review Requirements
Under FIFRA section 25, EPA has submitted a draft of the final rule
to the Secretary of the Department of Agriculture (USDA), the FIFRA
Scientific Advisory Panel (SAP), and the appropriate Congressional
Committees. Since there were no science issues warranting review, the
FIFRA SAP waived review of the final rule on July 25, 2022. USDA
completed its review without comment on August 5, 2022.
VII. 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 not a significant regulatory action under Executive
Order 12866 (58 FR 51735, October 4, 1993) and was therefore not
submitted to the Office of Management and Budget (OMB) for review under
Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
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)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. In making this determination, EPA concludes that the
impact of concern is any significant adverse economic impact on small
entities, and the Agency is certifying that this rule will not have a
significant economic impact on a substantial number of small entities,
because the rule relieves regulatory burden. The change to the
expiration date in this rule will reduce potential impacts on all
entities subject to the CPA regulations if their certifying
authorities' plans were not approved in time, so there are no
significant impacts to any small entities by issuing this rule. EPA has
therefore concluded that this action will relieve regulatory burden for
all directly regulated small entities.
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 action will
not impose substantial direct compliance costs on 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
In accordance with Executive Order 12898 (59 FR 7629, February 16,
1994), 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 any remaining certifying authorities pending their
plan approvals an opportunity to finalize the revised certification
plans, ensuring that the increased protections identified in the 2017
CPA Rule are realized for all affected populations. EPA has been and
will continue to work expeditiously with certification authorities to
review and approve plans. This engagement 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, 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,
[[Page 50965]]
Pesticides and pests, Restricted use pesticides.
Dated: August 12, 2022.
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 amended to read as follows:
Authority: 7 U.S.C. 136-136y.
0
2. Amend Sec. 171.5 by revising paragraph (c) to read as follows:
Sec. 171.5 Effective date.
* * * * *
(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, 2023,
whichever is earlier, except as provided in paragraph (d) of this
section and Sec. 171.309(b).
* * * * *
[FR Doc. 2022-17823 Filed 8-18-22; 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.