[Federal Register Volume 82, Number 105 (Friday, June 2, 2017)]
[Rules and Regulations]
[Pages 25529-25532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11458]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2011-0183; FRL-9963-34]


Pesticides; Certification of Pesticide Applicators; Delay of 
Effective Date

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of effective date.

-----------------------------------------------------------------------

SUMMARY: With this action, EPA is delaying the effective date for the 
final rule issued in the Federal Register on January 4, 2017, from June 
5, 2017 to May 22, 2018. That rule addressed revisions to the 
Certification of Pesticide Applicators rule.

DATES: The effective date of the rule amending 40 CFR part 171 that 
published at 82 FR 952, January 4, 2017, delayed at 82 FR 8499, January 
26, 2017, and 82 FR 14324, March 20, 2017, is further delayed until May 
22, 2018.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2011-0183, is available at http://www.regulations.gov 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 is (202) 566-1744, and the telephone number for the OPP 
Docket is (703) 305-5805. Please review the visitor instructions and 
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Keaney, Field and External 
Affairs Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone number: (703) 305-5557; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 25530]]

I. General Information

    On January 4, 2017, EPA published a final rule revising the 
regulation concerning the certification of applicators of restricted 
use pesticides (RUPs), promulgated in 40 CFR part 171 (82 FR 952; FRL-
9956-70). The original effective date of March 6, 2017 was extended to 
March 21, 2017 by a final rule published in the Federal Register on 
January 26, 2017, entitled ``Delay of Effective Date for 30 Final 
Regulations Published by the Environmental Protection Agency Between 
October 28, 2016 and January 17, 2017'' (82 FR 8499). In that rule, EPA 
delayed the effective dates of the thirty regulations, including the 
final rule revising the regulation concerning the certification of 
applicators of restricted use pesticides (RUPs) issued on January 4, 
2017 (82 FR 952) (FR-9956-70), as requested in the memorandum of 
January 20, 2017, from the Assistant to the President and Chief of 
Staff, entitled ``Regulatory Freeze Pending Review'' (January 20 
Memorandum). The January 20 Memorandum directed the heads of Executive 
Departments and Agencies to postpone for 60 days from the date of the 
January 20 Memorandum the effective dates of all regulations that had 
been published in the Federal Register but had not yet taken effect.
    The January 20 Memorandum further directed that where appropriate 
and as permitted by applicable law, agencies should consider a rule to 
delay the effective date for regulations beyond that 60-day period. 
Accordingly, on March 20, 2017, EPA published the final rule ``Further 
Delay of Effective Dates for Five Final Regulations Published by the 
Environmental Protection Agency Between December 12, 2016 and January 
17, 2017'' (82 FR 14324), to give recently arrived Agency officials the 
opportunity to conduct a substantive review of those five regulations, 
which included the revised Certification of Pesticide Applicators rule. 
Pursuant to that March 20, 2017 rule, the effective date of the revised 
Certification of Pesticide Applicators rule was extended to May 22, 
2017.
    On May 15, 2017, EPA solicited public comment on a proposed 12-
month delay of the effective date until May 22, 2018 (82 FR 22294; FRL-
9962-31). EPA received more than 130 comments in response to the May 
15, 2017 request for comments on the proposal to further delay the 
effective date until May 22, 2018. On May 22, 2017, EPA published a 
rule that made an interim extension of the effective date of the 
revised Certification of Pesticide Applicators rule until June 5, 2017 
in order to allow additional time for Agency officials to consider and 
respond to the public comments.
    Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 
553(d), allows the effective date of an action to be less than 30 days 
from its publication date when a good cause finding is made. The 
primary reason for the 30-day waiting period between publication and 
effective date is to allow affected parties to adjust to new 
requirements. This rule does not impose any new requirements but rather 
postpones the effective date of requirements that are not yet in 
effect. As noted below, allowing the rule to go into effect could cause 
confusion and disruption for affected parties if the rule were 
subsequently substantially revised or repealed. Thus, EPA finds there 
is good cause to make this rule effective immediately upon publication.
    In addition, EPA still has only one Senate-confirmed official, and 
the new Administration has not had the time to adequately review the 
January 4, 2017 certification rule. This extension to May 22, 2018, 
will prevent the confusion and disruption among regulatees and 
stakeholders that would result if the January 4, 2017 rule were to 
become effective (displace the existing regulation) and then 
substantially revised or repealed as a result of administrative review.
    In this final rule, EPA is delaying the effective date of the 
January 4, 2017 revisions to the Certification of Pesticide Applicators 
rule until May 22, 2018. EPA is delaying the effective date of the 
January 4, 2017 revisions to the Certification of Pesticide Applicators 
rule until May 22, 2018 in accordance with the Presidential directives 
as expressed in the memorandum of January 20, 2017, from the Assistant 
to the President and Chief of Staff, entitled ``Regulatory Freeze 
Pending Review,'' and the principles identified in the April 25, 2017 
Executive Order ``Promoting Agriculture and Rural Prosperity in 
America.''

II. Comments and Responses

    EPA received more than 130 comments relevant to the proposal to 
further delay the effective date of the January 4, 2017 Certification 
of Pesticide Applicators rule until May 22, 2018. Seventeen comments 
were not relevant to this action because they did not address the 
extension of the effective date and instead urged EPA to ban 
chlorpyrifos or only included specific comments about the January 4, 
2017 rule. Out of the relevant comments, 18 commenters supported the 
proposed 12-month extension of the effective date and the rest opposed 
the proposed 12-month extension.
    Comments--specific provisions. About 20 of the comments included 
input on the specific provisions of the January 4, 2017 Certification 
of Pesticide Applicators rule.
    EPA response--specific provisions. This final rule focuses on the 
extension of the effective date of the certification rule. Comments on 
the specific provisions of the revised certification rule are outside 
of the scope of this final rule and will be considered within the 
review of the rule through the Regulatory Reform Agenda efforts.
    Comments--support. The comments supporting the 12-month extension 
of the effective date came from state pesticide regulatory agencies, a 
pesticide safety education program and a number of organizations 
representing state departments of agriculture, pesticide safety 
education programs, pesticide applicators, growers, pesticide 
manufacturers, and pesticide retailers. The commenters supported the 
12-month extension for a variety of reasons. The most common reason was 
to allow EPA and states more time to prepare for the revisions to state 
certification programs, engage stakeholders, and develop information 
the states need to efficiently implement the January 4, 2017 rule. Some 
commenters supported the 12-month extension to give EPA time to revisit 
certain aspects of the January 4, 2017 rule and identified specific 
requirements, such as minimum age.
    EPA response--support. EPA generally agrees with these comments. 
During the next 12 months, EPA plans to engage and work with the 
certifying authorities (states, tribes and federal agencies), pesticide 
safety education programs, pesticide applicators and other stakeholders 
to develop checklists, guidance and tools to facilitate the development 
of revised certification plans and to discuss how to effectively 
implement the certification rule. In addition, EPA will conduct a 
substantive review of the questions of fact, law and policy--all within 
the context of the very broad cost-benefit standard in FIFRA--during 
this period. As mentioned above, comments on the specific provisions of 
the revised certification rule will be considered within the review of 
the rule through the Regulatory Reform Agenda efforts.
    Comments--adjust implementation schedule. One state pesticide 
regulatory agency supported the 12-month extension of the effective 
date of the Certification of Pesticide Applicators Rule as long as the 
implementation schedule in the January 4, 2017 rule is

[[Page 25531]]

extended as well. This implementation schedule allowed three years for 
certifying authorities to submit revised plans and an additional two 
years for EPA to review the plans and agree upon a timeline for the 
certifying authority to implement the plan.
    EPA response--adjust implementation schedule. EPA agrees with this 
comment and intends to make corresponding changes to the implementation 
dates in 40 CFR 171.5 in a subsequent rulemaking.
    Comments--implement protections sooner. The commenters opposing the 
12-month extension included over 30 non-governmental organizations 
representing a range of interests, including but not limited to farm 
workers, environmental advocates, occupational or migrant health 
clinics and employment law, and many private citizens. The concerns 
raised by the commenters opposed to the delay covered several areas, 
which are summarized and responded to below.
    The commenters urged EPA to begin implementing the rule in May 2017 
to allow the intended protections to apply sooner. A few commenters 
argued that the extension would increase the risk of serious adverse 
effects on human health and the environment and one commenter pointed 
out that EPA identified preventable restricted use pesticide exposures 
to humans and the environment in the January 4, 2017 rule. This 
commenter stated that delaying the rule by a year means these types of 
exposures will occur for an additional year.
    EPA response--implement protections sooner. The January 4, 2017 
final certification rule would not have immediately put in place 
additional protections that would prevent or eliminate the types of 
exposures identified by EPA in its benefits analysis. The January 4, 
2017 rule included an implementation schedule where the certifying 
authorities would have up to three years to submit revised 
certification plans that conform to the revised standards, so there 
already was going to be a delay in the protections actually being 
implemented by the certifying authorities. If EPA develops checklists, 
guidance and tools to facilitate the development of revised 
certification plans during the 12-month delay, it is possible that many 
certifying authorities will be able to submit the revised certification 
plans well before the three-year deadline for submitting plans.
    Comments--basis for extension. Several commenters argued that EPA 
did not provide a rational basis for extending the effective date by a 
year, with one stating that, for that reason, the rule to extend the 
compliance date is arbitrary and capricious and an abuse of discretion. 
The commenters questioned what steps have been taken during the 
previous 4 months of extensions, what analyses would be done in the 
next year and why EPA needs 12 more months.
    EPA response--basis for extension. Out of the 30 final regulations 
whose effective dates were delayed by the January 26, 2017 final rule, 
this is one of the few regulations with an effective date that has been 
extended several more times. The Administrator has determined that the 
certification rule requires a substantive review of the questions of 
fact, law and policy--all within the context of the very broad cost-
benefit standard in FIFRA--so an additional 12 months is necessary and 
will provide more certainty to certifying authorities, pesticide safety 
education programs, pesticide applicators and other stakeholders than 
to have several medium term extensions. Extending the rule by 12 months 
is also more efficient for EPA staff and allows them to focus on the 
substantive review rather than drafting and implementing several medium 
term extensions. The 12-month extension also provides time for EPA to 
consider revisions to the certification rule based on input received 
through the Regulatory Reform Agenda efforts.
    Comments--Administrative Procedures Act. Several comments argued 
that the May 15, 2017 rule violated the Administrative Procedures Act 
(APA) in several ways. First, commenters argued that the May 15 rule is 
a ``final rule'' that makes a significant amendment to a lawfully 
promulgated regulation without first proposing the change and seeking 
public comment. Second, commenters raised a number of concerns about 
the five-day comment period. Specifically, commenters argued that a 
delay of the effective date for 12 months is functionally a substantive 
amendment or rescission of the certification rule so the APA and FIFRA 
require a notice and comment period of at least 30 days. Commenters 
also stated that sections 553(d)(1) and (d)(3) of the APA are 
inapposite (not pertinent) as legal authority for dispensing with a 
``full . . . comment period'' because these sections provide grounds to 
the generally applicable requirement that no final rule take effect 
sooner than 30 days after its publication but not the length of the 
comment period. Some commenters argued that the good cause exception to 
the APA's notice requirement in 5 U.S.C. 553(b)(B) is not relevant to 
the May 15, 2017 rule. Lastly, commenters disagreed with EPA's 
reasoning in the May 15, 2017 rule that a full 30-day comment period is 
impractical, unnecessary and contrary to the public interest.
    EPA response--APA. The May 15, 2017 FR Notice was styled as a final 
rule to be consistent with standard procedures of the Office of the 
Federal Register, which require that rules that affect existing rules 
(in the case of rules that address changing the effective date of an 
existing rule) must appear in the ``Final Rules'' section of the 
Federal Register. See OFR Document Drafting Handbook (https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf ) at 
section 3.1. Irrespective of the ``Final Rule'' caption, EPA considers 
the May 15 Federal Register Notice to have the effect of a proposed 
rule under the APA. This is clear from the phrase ``request for 
comments'' in the action line, as well as from the text of the FR 
Notice, where EPA expressly stated that it was ``proposing to further 
delay the effective date'' and requested comment on the proposed 
extension.
    The Agency's implementation of this action with an abbreviated 
opportunity for public comment is based on the good cause exception in 
5 U.S.C. 553(b)(B), in that providing additional time for public 
comment is impracticable, unnecessary and contrary to the public 
interest. The delay of the effective date until May 22, 2018, is 
necessary to give Agency officials the opportunity for further review 
and consideration of the certification rule, consistent with the 
memorandum of the Assistant to the President and Chief of Staff, dated 
January 20, 2017, and the principles identified in the April 25, 2017 
Executive Order ``Promoting Agriculture and Rural Prosperity in 
America.'' Given the imminence of the certification rule effective 
date, allowing a longer period for comment on this delay would have 
been impractical, as well as contrary to the public interest in the 
orderly promulgation and implementation of regulations.
    The 90-day comment period for the 2015 proposed rule, combined with 
EPA's extensive stakeholder outreach, provided EPA with robust public 
comment regarding the risks and benefits associated with the January 4, 
2017 certification rule. Inasmuch as there was already a robust public 
comment on the merits of the certification rule, the narrow issue of 
when the rule should become effective could reasonably be addressed in 
a short period of time. If EPA had not shortened the comment period to 
five days, the January 4, 2017 certification rule would have gone into 
effect. It would have caused unnecessary confusion and disruption to 
certifying authorities,

[[Page 25532]]

pesticide safety education programs, pesticide applicators and other 
stakeholders for the certification rule to go into effect and then 
potentially be substantially revised or repealed following a 
substantive review.
    Comments--FIFRA. Some commenters argued that the May 15, 2017 rule 
violates FIFRA, which requires rules to be reviewed by the U.S. 
Department of Agriculture and the FIFRA Scientific Advisory Panel. 
FIFRA also requires a 60-day effective date and requires EPA to 
transmit a copy of the final rule to Congress at the beginning of this 
60-day period.
    EPA response--FIFRA. EPA disagrees that the proposed extension of 
the effective date of the certification rule violates FIFRA. EPA is 
issuing this extension of the effective date of the certification rule 
as an APA rule and not a FIFRA rule because today's rule is only 
changing the effective date of a final rule that had not become 
effective.
    Comments--Endangered Species Act. A few commenters argued that the 
May 15, 2017 rule violates the Endangered Species Act. Section 7 of the 
ESA requires federal agencies to consult with the Fish and Wildlife 
Service and the National Marine Fisheries Service unless EPA determined 
that its extension of the effective date has ``no effect'' on 
threatened and endangered species and their designated critical 
habitat.
    EPA response--Endangered Species Act. EPA believes that its actions 
with respect to deferring the implementation of this rule are not 
inconsistent with its obligations under the Endangered Species Act.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.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 not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) 
and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not involve any information collection activities 
subject to the PRA, 44 U.S.C. 3501 et seq.

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 RFA, 5 U.S.C. 
601 et seq.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments.

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).

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not an economically significant 
regulatory action as defined by Executive Order 12866.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards that would 
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 
note.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action would not have disproportionately 
high and adverse human health or environmental effects on minority, 
low-income, or indigenous populations, as specified in Executive Order 
12898 (59 FR 7629, February 16, 1994).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 171

    Environmental protection, Applicator competency, Agricultural 
worker safety, Certified applicator, Pesticide safety training, 
Pesticide worker safety, Pesticides and pests, Restricted use 
pesticides.

    Dated: May 26, 2017.
Wendy Cleland-Hamnett,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2017-11458 Filed 6-1-17; 8:45 am]
 BILLING CODE 6560-50-P