[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Proposed Rules]
[Pages 6821-6827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02543]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2021-0831; FRL-9134.1-01-OCSPP]
RIN 2070-AL01


Pesticides; Certification of Pesticide Applicators; Further 
Extension to Expiration Date of Certification Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
extend the deadline by which Federal, State, territory, and tribal 
certifying authorities with existing certification plans are required 
to revise their existing certification plans to conform with the 
updated Federal standards for the certification of applicators of 
restricted use pesticides (RUPs) up to but not longer than November 4, 
2024. Federal, State, territory, and tribal certifying authorities with 
existing certification plans are required to revise their existing 
certification plans to conform with the updated Federal standards for 
the certification of applicators of RUPs and the regulations 
established the deadline by which the existing plans are set to expire 
unless the revised plans are approved by the Agency. EPA is proposing 
this extension to 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.

DATES: Comments must be received on or before March 9, 2022.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2021-0831, using the Federal eRulemaking Portal 
at https://www.regulations.gov. Follow the online instructions for 
submitting comments. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI)

[[Page 6822]]

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

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#98ebfbf0eaf7fdfcfdeab6fbf9eaf7f4e1f6d8fde8f9b6fff7ee"><span class="__cf_email__" data-cfemail="6516060d170a000100174b0604170a091c0b250015044b020a13">[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 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?

    This action is issued under the authority of 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 proposes to extend the expiration date for existing 
certification plans at 40 CFR 171.5(c) for up to but not longer than 2-
years. No other changes to the certification standards and requirements 
specified in 40 CFR part 171 are being proposed in this rulemaking.

D. Why is the Agency taking this action?

    Without the proposed 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 plans will no longer be allowed to use RUPs. While 
EPA anticipates that all plans will have been reviewed and returned to 
the certifying authorities for further revision by February 2022, the 
recent extension of eight months (which extended the original deadline 
of March 4, 2022 to November 4, 2022) may not be sufficient time for 
all certifying authorities to respond to EPA comments and complete 
approvable certification plans, or for EPA to work closely with the 
certifying authorities to assure that their proposed certification plan 
modifications meet current Federal standards.
    EPA expects that some plans will be approved in early 2022, with 
more to follow by November 2022. 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 the Agency's 
ability to work with certifying authorities to assure that their plans 
are approvable by the regulatory deadline. Further collaboration may 
still be needed between EPA and the certifying authorities to finalize 
and approve all 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.
    EPA finds that an additional extension of the deadline will likely 
be needed to assure that certified applicators in some parts of the 
country will continue to be authorized to use RUPs without interruption 
and to provide certifying authorities with adequate time to review and 
respond to EPA comments on their plans. The proposed extension will 
also provide additional time that was initially lost due to COVID-19 
for EPA to work more closely with the certifying authorities to address 
any remaining feedback and work toward approving their certification 
plans.

E. What are the incremental impacts of this action?

    Incremental impacts of the proposed extension of 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 III.B.).
    EPA uses information from the 2017 certification rule (Ref. 2), 
which mandates the expiration of existing certification plans unless 
EPA approves revised certification plans, to assess the incremental 
economic impacts of this proposed rule to extend the recently modified 
deadline of November 4, 2022 (Ref. 1), up to November 4, 2024. The 
impacts of the proposed 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.

[[Page 6823]]

    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, 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. 
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 undergoing review at 
EPA. 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 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 
address pandemic-related issues. Thus, only part of the cost to 
certifying authorities estimated in the 2017 rule has presently been 
incurred and some of the cost will be expended during the additional 
extension period. Therefore, this proposed rule is not expected to 
significantly change the costs to certifying authorities estimated in 
the 2017 Economic Analysis (EA) (Ref. 3).
    2. Cost to certified applicators. The other sectors affected by the 
2017 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. Some of these costs could be delayed as some of the revised 
plans are approved and implemented over a longer period of time. Not 
all costs to certified applicators will be delayed, as EPA expects that 
some plans will be approved in early 2022, with more to follow by 
November 2022. Moreover, some certifying authorities have or will be 
able to start implementing changes conforming to the 2017 rule before 
their plan's approval.
    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 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 plan revisions will be 
delayed for a period of time up to November 4, 2024, 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. Plan approvals 
are anticipated to begin in early 2022 and will continue on a rolling 
basis through the recently extended November 2022 date while this 
action goes through standard rulemaking procedures. 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 protocols, all 
of which were required to meet or exceed the new requirements and 
standards established in the 2017 rule.
    Without the extension, however, 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 
modification 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 existing regulatory 
deadline is not extended further, it is likely that EPA will be unable 
to approve some of the State, territory, tribal, and other Federal 
agency certification plans that may still need additional work and/or 
coordination beyond the recently revised November 4, 2022 deadline, 
resulting in termination of these plans. EPA would have to take 
responsibility for administering certification programs for a portion 
of the country. A gap in coverage will likely exist between when 
certification plans expire and when EPA can fully implement EPA-
administered certification programs, resulting in RUPs being 
unavailable for use in many 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 or 
be

[[Page 6824]]

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 
and these benefits 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.
    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 
could lose work and income as a result.

F. Request for Comments

    While EPA expects a significant amount of progress to be made 
leading up to the recently revised expiration date of November 4, 2022, 
EPA anticipates that additional time may be needed for some certifying 
authorities to revise their plans based on EPA's feedback and for EPA 
to approve those plans. This proposed rule provides an opportunity for 
stakeholders to submit comments on 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 is proposing an extension up to but not longer than 
November 4, 2024, but the Agency is interested in receiving information 
on the appropriate length of time to approve revised certification 
plans. During this comment period, 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 authority's jurisdiction, the potential impacts of delayed 
certification plans, and the consequences of existing plans expiring 
without a new certification plan in effect. Any comments submitted in 
response to the interim final rule that previously extended the 
deadline (Ref. 1) will also be considered in the development of this 
rulemaking.

G. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
https://www.regulations.gov 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 comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

II. Background

    On December 20, 2021, EPA issued an interim final rule that 
extended the original expiration date from March 4, 2022 to November 4, 
2022 (Ref. 1). Unit II. of the interim final rule's preamble provides a 
summary of the 2017 Certification of Pesticide Applicators final 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 interim final rule.
    The interim final rule extended the expiration date an additional 8 
months beyond the original regulatory deadline of March 4, 2022. This 
time-limited extension was intended to give all certifying authorities 
additional time to respond to reviews and feedback provided by EPA that 
had been delayed and impacted by the COVID-19 public health emergency. 
All of the plans are expected to have been returned to the certifying 
authorities by February 2022. The extension also provided more time for 
EPA and certifying authorities to work together to address any 
remaining issues and for EPA to ultimately approve the certifying 
authorities' plans. EPA's 8-month extension was necessary to provide 
EPA with sufficient time to make as much progress toward approving 
modified certification plans while the Agency simultaneously developed 
rulemaking for public comment on the need for and appropriate length of 
a longer extension, taking into account both APA and FIFRA rulemaking 
requirements. The additional 8 months also provides EPA with an 
opportunity to assess the status of plan approvals once all plans have 
been returned to the certifying authorities in February 2022 up to the 
revised expiration date of November 4, 2022. The existing 
certifications plans are set to expire on November 4, 2022, unless the 
modified plans are approved by EPA and the approved plans specify the 
time needed to fully implement the revisions identified, or 
alternatively, if EPA issues another extension based on the need and 
results of the public comment period for this rulemaking.

III. Provisions of This Proposed Rule

A. Proposed New Deadline for Certification Plan Approvals

    EPA is proposing that the deadline for amended certification plans 
to be approved without interruption to the existing certification 
plans, as provided in 40 CFR 171.5(c), be changed up to but not longer 
than November 4, 2024. Additional time is likely necessary to assure 
that all the certifying authorities have had enough time to present 
approvable certification plans, and for EPA to work more closely with 
the Federal, State, territory, and tribal agencies on necessary 
modifications, and ultimately approve the certification plans. As some 
certifying authorities are close to completing their revisions and 
receiving EPA approval on their plans, EPA anticipates that 
certification plan approvals will begin in early 2022 and will continue 
on a rolling basis through

[[Page 6825]]

the recently extended November 2022 date while this action goes through 
notice-and-comment rulemaking procedures. 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. However, EPA is proposing this additional 
extension up to but not longer than November 4, 2024, because some 
certifying authorities and EPA may need more time to collaborate on and 
address issues raised during EPA's review of the plans.

B. Need for Extending the Existing Plans' Expiration Date

    An extension of the expiration date for existing certification 
plans is likely 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. 
On December 20, 2021, EPA issued an interim final rule that extended 
the original expiration date of existing plans from March 4, 2022, to 
November 4, 2022 (Ref. 1). However, absent an additional extension of 
this deadline, State, territory, tribal, and other Federal agency 
certification programs without an approved revised plan could 
terminate, causing severe disruption for agricultural, commercial, and 
governmental users of RUPs.
    While Unit II. of the preamble in the interim final rule (Ref. 1) 
included a robust discussion of the circumstances necessitating the 
extension of the expiration date of existing plans from March 2022 to 
November 2022, there may not be sufficient time to ensure that all 
modified plans submitted to EPA are able to obtain approval prior to 
the expiration of existing plans (Ref. 1). EPA's process for approving 
modified plans involves extensive coordination between certifying 
authorities, EPA regional offices, and EPA Headquarters. Many of the 
States, territories, and tribes that have submitted modified plans for 
EPA approval are required to make statutory and regulatory changes that 
often involve a long and complex legislative process and public comment 
procedures. Many of these plans also contain State, territory, or 
tribal-specific issues that require individualized attention and 
coordination with EPA. Further, many certifying authorities have 
proposed implementation timelines that account for changes in the 
infrastructure of existing certification programs, such as revisions to 
current RUP applicator certification exam standards and training 
manuals. As explained in the interim final rule, the COVID-19 public 
health emergency delayed or impeded the process of EPA's coordination 
with certifying authorities on these changes, thereby necessitating an 
extension of the deadline for expiration of existing plans (Ref. 1). 
Failure to extend the regulatory deadline to provide enough time for 
certifying authorities to respond to EPA's feedback and for EPA to 
approve those revisions would result in the expiration of certification 
programs without approved plans, which would significantly limit access 
to certification and would thereby limit access to RUPs that are 
necessary for various industries that rely upon pest control.
    If EPA is unable to further extend the regulatory deadline for 
approved certification plans as needed, any existing certification 
plans that remain in effect pending EPA's approval of submitted 
certification plan modifications will expire on November 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 parts of the country, it 
would draw resources away from other important Agency priorities, 
including implementation support of certification plans that are 
approved before the November 4, 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 parts of the country. Moreover, once EPA-administered 
certification programs are established, it is unlikely that they would 
operate at the same capacity as existing 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. This could create 
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. For 
agriculture, 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 parts of the country. 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.

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; 
Extension to Expiration Date of Certification Plans; Interim Final 
Rule. Federal Register. 86 FR 71831, December 20, 2021 (FRL 9134-02-
OCSPP).
2. EPA. Pesticides; Certification of Pesticide Applicators; Final 
Rule. Federal Register. 82 FR 952, January 4, 2017 (FRL-9956-70).
3. 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.
4. EPA. Pesticides; Certification of Pesticide Applicators; Further 
Extension to Expiration Date of Certification Plans; Submission to 
the Secretary of Agriculture. Federal Register. 87 FR 3738, January 
25, 2022 (FRL-9134.1-02-OCSPP).

V. FIFRA Review Requirements

    In accordance with FIFRA section 25(a), EPA submitted a draft of 
this proposed rule to the United States Department of Agriculture 
(USDA) (Ref. 4) and to the appropriate Congressional Committees.
    USDA responded without comments. The FIFRA Scientific Advisory 
Panel (SAP) waived review of this proposed rule, concluding that the 
proposed 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 https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

[[Page 6826]]

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)

    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 for this rule is any significant adverse economic 
impact on small entities. This rulemaking primarily affects Federal, 
State, territory, and tribal agencies who administer a certification 
program for pesticides applicators, which do not qualify as small 
entities under the RFA. In addition, this rulemaking may potentially 
affect other entities that may qualify as a small entity under the RFA, 
e.g., companies that are registrants 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 persons who provides pesticide 
safety training for pesticide applicator certification or 
recertification.
    The Agency is certifying that this rulemaking will not have a 
significant economic impact on a substantial number of small entities 
because the rule would relieve regulatory burden for potentially 
affected small entities. Without the proposed deadline extension, 
modified certification programs that are not approved by the recently 
modified regulatory deadline of November 4, 2022, will expire, and 
applicators formerly certified under such plans will no longer be 
allowed to use RUPs. This action proposes to extend the expiration date 
for existing certification plans to allow more time for certifying 
authorities to respond to EPA comments and for EPA to work with the 
certifying authorities to assure that their proposed certification plan 
modifications meet current Federal standards. EPA has therefore 
concluded that this action would 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). It will not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. 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 public health emergency, 
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.

List of Subjects in 40 CFR Part 171

    Environmental protection, Applicator competency, Agricultural 
worker safety, Certified applicator, Pesticide safety

[[Page 6827]]

training, Pesticide worker safety, Pesticides and pests, Restricted use 
pesticides.

Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons set forth in the preamble, EPA proposes 
to amend 40 CFR chapter I 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  Effective Date.

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, 2024, 
whichever is earlier, except as provided in paragraph (d) of this 
section and Sec.  171.309(b).
* * * * *

[FR Doc. 2022-02543 Filed 2-4-22; 8:45 am]
BILLING CODE 6560-50-P


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