[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 71831-71838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27373]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2021-0831; FRL-9134-02-OCSPP]
RIN 2070-AL00


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is extending the 
expiration deadline of existing Federal, state, territory, and tribal 
certification plans. This deadline was established in 2017 when the EPA 
promulgated a final rule revising the Certification of Pesticide 
Applicators (CPA) regulations to improve the competency of certified 
applicators of restricted use pesticides (RUPs), increase protection 
for noncertified applicators using RUPs under the direct supervision of 
a certified applicator through enhanced pesticide safety training and 
standards for supervision of noncertified applicators, and establish a 
minimum age requirement for certified and noncertified applicators 
using RUPs under the direct supervision of a certified applicator. 
Federal, state, territory, and tribal certifying authorities with 
existing certification plans were required to revise their existing 
certification plans to conform with the updated Federal standards for 
the certification of applicators of RUPs and submit their revisions for 
EPA review in March 2020. The existing plans are set to expire on March 
4, 2022, unless the revised plans are approved by the Agency. EPA is 
extending the existing plans' expiration deadline to November 4, 2022. 
This will allow additional time for proposed certification plan 
modifications to continue being reviewed and approved by EPA without 
interruption to federal, state, territory, and tribal certification 
programs or to those who are certified to use RUPs under those 
programs. The extension also provides EPA with additional time to issue 
a proposed rule and seek public comment on the need for extending the 
expiration date beyond November 4, 2022.

DATES: 
    Effective date: This interim final rule is effective on February 
18, 2022.
    Comment due date: Comments on the interim final rule must be 
received on or before January 19, 2022.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2021-0831, using the Federal eRulemaking Portal 
at 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) 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/about-epa-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: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

    You may be potentially affected by this action if you are a 
federal, state, territory, or tribal agency who administers a 
certification program for pesticides applicators. You may also be 
potentially affected by this action if you are: A registrant of RUP 
products; a person who applies RUPs, including those under the direct 
supervision of a certified applicator; a person who relies upon the 
availability of RUPs; someone who hires a certified applicator to apply 
an RUP; a pesticide safety educator; or

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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:
     Agricultural Establishments (Crop Production) (NAICS code 
111);
     Nursery and Tree Production (NAICS code 111421);
     Agricultural Pest Control and Pesticide Handling on Farms 
(NAICS code 115112);
     Crop Advisors (NAICS codes 115112, 541690, 541712);
     Agricultural (Animal) Pest Control (Livestock Spraying) 
(NAICS code 115210);
     Forestry Pest Control (NAICS code 115310);
     Wood Preservation Pest Control (NAICS code 321114);
     Pesticide Registrants (NAICS code 325320);
     Pesticide Dealers (NAICS codes 424690, 424910, 444220);
     Industrial, Institutional, Structural & Health Related 
Pest Control (NAICS code 561710);
     Ornamental & Turf, Rights-of-Way Pest Control (NAICS code 
561730);
     Environmental Protection Program Administrators (NAICS 
code 924110); and
     Governmental Pest Control Programs (NAICS code 926140).

B. What is the Agency's authority for taking this action?

1. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
    This action is issued under the authority of FIFRA, 7 U.S.C. 136-
136y, particularly sections 136a(d), 136i, and 136w.
2. Administrative Procedure Act (APA)
    The APA provides that when an agency for good cause finds that 
notice and public procedures are impracticable, unnecessary, or 
contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. 5 U.S.C. 
553(b)(3)(B).
    EPA has determined that there is good cause for extending the 
expiration date for the existing certification plans without prior 
proposal and opportunity for comment for the following reasons:
     EPA's review and approval efforts, beginning in March 
2020, were significantly hampered by the COVID-19 public health 
emergency, which created unforeseen circumstances that impacted EPA's 
ability to coordinate effectively with the state, territory, and tribal 
agencies and to provide early feedback to these certifying authorities 
during the two-year review and approval period. These impacts have also 
affected the state, territory, and tribal agencies' ability to respond 
to EPA's feedback and have significantly limited the amount of time 
these certifying authorities have to respond to such feedback. These 
issues resulted in EPA's review and approval process falling behind 
schedule. While slightly more than half of the 67 total plans have been 
reviewed by EPA to date, the Agency does not anticipate that all 
reviews will have been returned to the certifying authorities until 
February 2022. As a result, there is insufficient time for many of the 
certifying authorities to address all comments prior to March 4, 2022. 
See also the discussion in Unit II.B. and C.
     Even though EPA was aware that the review and approval 
process was falling behind schedule due to COVID-19 resource 
constraints at both the federal level and within the state, territory, 
and tribal agencies that develop, implement, and enforce these plans, 
EPA lacked the authority to develop changes to this regulatory deadline 
before October 1, 2021. Section 7(a)(2) of the Pesticide Registration 
Improvement Act of 2018 (PRIA 4) (Pub. L. 116-8; 133 Stat. 578), 
enacted on March 8, 2019, prohibited EPA from revising or developing 
revisions to the certification rule prior to October 1, 2021, thereby 
limiting EPA's ability to adjust the regulatory deadline until now. 
This extension provides EPA and the certifying authorities an 
opportunity to complete the review and approval process that was 
hampered by the COVID-19 pandemic and for certifying authorities to 
begin implementation of the modified certification plans without a 
lapse in coverage, ensuring that the increased protections required by 
the 2017 rule (Ref. 1) are fully realized. See also the discussion in 
Unit II.D.
     Rulemaking requirements, which in this case also include 
FIFRA rulemaking requirements that delay the effective dates of FIFRA 
rules and prescribe external reviews of the draft rulemaking within 
prescribed time periods, make it impracticable to complete a standard 
notice and comment rulemaking between the October 1, 2021 end of the 
PRIA 4 prohibition and the March 4, 2022 expiration date. See also the 
discussion in Unit II.D. and V.
     The expiration of state, territory, tribal, and federal 
agency certification programs would have significant adverse impacts on 
the certifying authorities, the economy, public health, and the 
environment. Applicator certifications under programs with expired 
plans would no longer be valid, significantly impairing access to and 
use of RUPs in many parts of the country, which in turn could pose 
potential risks to agriculture, commerce, and public health. Although 
difficult to quantify, the economy would be impacted by the shutdown of 
existing certification programs, including the potential economic 
impacts from limited availability of RUPs, and related limitations on 
training providers, certified individuals, and the program 
infrastructure established by the certifying agencies. Additionally, 
the Agency's ability to carry out its function of ensuring that 
applicators have been adequately trained and assessed for competency to 
use RUP products and the certifying authorities' ability to implement 
their certification programs within their jurisdiction will be 
significantly impacted should existing plans expire before EPA approves 
the revised certification plans. See also the discussion in Unit I.E.
     The extension of the regulatory deadline directly impacts 
those state, territory, tribal, and federal certifying agencies whose 
revised certification plans may not be approved by the regulatory 
deadline of March 4, 2022. While providing these entities a formal 
opportunity for comment on a proposed rule is impracticable for the 
reasons previously stated, certifying authorities have already 
expressed a need for more time to address EPA comments and have 
indicated their general support for the extension in communications 
with EPA. Given the urgent need for this rulemaking, EPA is issuing 
this rule as an interim final rule with post-promulgation public 
comment in order for the extension to be effective before the 
regulatory deadline of March 4, 2022.
    In conclusion, for the reasons enumerated here, EPA is promulgating 
this interim final rule without a general notice of proposed rulemaking 
pursuant to 5 U.S.C. 553(b)(3)(B) because the Agency finds good cause 
that notice and public comment procedures are impracticable. In 
addition, EPA is also planning to issue a separate notice of proposed 
rulemaking (NPRM) in the near future to request comment on the 
potential need to further extend the regulatory deadline. EPA intends 
to address comments in response to this interim final rule and the NPRM 
concurrently and to publish a final rule.

[[Page 71833]]

C. What action is the Agency taking?

    This interim final rule is revising the expiration date for 
existing certification plans at 40 CFR 171.5(c) from March 4, 2022, to 
November 4, 2022. While EPA anticipates that all plans will have been 
reviewed and returned to the certifying authorities for further 
revision by February 2022, this revision will allow for certifying 
authorities that need more time to respond to EPA comments and prepare 
approvable certification plans, and more time for EPA to work with the 
certifying authorities to assure that their proposed certification plan 
modifications meet current federal standards. Although significant 
progress has been made in the development of revised plans and EPA's 
subsequent reviews, COVID-19 resource constraints have impacted the 
time certifying authorities have had to respond to EPA's comments and 
Agency's ability to work with certifying authorities to assure that 
their plans are approvable by the March 2022 deadline. Further 
collaboration is still needed between EPA and the certifying 
authorities to finalize and approve plans. EPA intends to work 
expeditiously toward approving and supporting the implementation of 
plans that meet the current federal standards during the extension and 
intends to provide periodic notifications to the public when those 
approvals have occurred. No other changes to the certification 
standards and requirements specified in 40 CFR part 171 are being made 
in this rulemaking.
    In addition to this interim final rulemaking, EPA is planning to 
issue a separate notice of proposed rulemaking (NPRM) for public 
comment on the potential need to further extend the expiration date for 
existing plans beyond November 4, 2022. Any additional extension 
pursued by the Agency will be informed by both the progress on plan 
reviews and approvals made during this extension period and by the 
public comments on this interim final rule and the NPRM.

D. Why is the Agency taking this action?

    EPA finds that the deadline extension is an urgent need and 
necessary to assure that certified applicators will continue to be 
authorized to use RUPs without interruption and to provide certifying 
authorities with additional time to review and respond to EPA comments 
on their plans. The extension will also provide additional time for EPA 
to work more closely with the certifying authorities to address any 
remaining feedback and work toward approving their revisions. This 
extension also provides the Agency an opportunity to propose a longer-
term extension through standard notice and comment rulemaking 
procedures. Without the deadline extension, modified certification 
programs that are not approved by the regulatory deadline of March 4, 
2022, will expire, and applicators formerly trained and certified under 
such plans will no longer be allowed to use RUPs.

E. What are the incremental impacts of this action?

    Incremental impacts of extending the regulatory deadline are 
generally positive because the extension provides certifying entities 
and EPA with more time to ensure that modified plans meeting the 
minimum federal requirements are in place, while failure to extend the 
regulatory deadline would likely have significant adverse impacts on 
the certifying authorities, the economy, public health, and the 
environment (see discussion in Unit I.B.2.).
    EPA uses information from the 2017 certification rule (Ref. 1), 
which mandates the March 4, 2022 expiration of existing certification 
plans unless EPA approves revised certification plans, to assess the 
incremental economic impacts of this interim final rule which extends 
this deadline from March 4, 2022, to November 4, 2022. The impacts of 
the extension are that the implementation costs borne by the certifying 
authorities will be expended over an additional period of time and some 
of the costs to commercial and private applicators may be delayed. Some 
of the benefits of the rule (e.g., reduction in acute illnesses from 
pesticide poisoning) are foregone as the implementation of some plans 
may be delayed while EPA works with the certifying authorities toward 
approval of their revised certification plans.
1. Cost to Certifying Authorities
    The 2017 rule provided a compliance period for certifying 
authorities to develop, obtain approval, and implement any new 
procedures, regulations, or statutes to meet the new federal standards. 
The 2017 rule further provided that existing plans could remain in 
effect after March 4, 2022, only to the extent specified in EPA's 
approval of a modified certification plan; EPA did not explicitly set a 
date for full implementation of the new programs. Certifying 
authorities can begin implementing their revisions to their programs 
when they are approved by EPA; portions of revised certification 
programs may be implemented in advance of plan approvals when in 
compliance with the 2017 rule requirements. All certifying authorities 
submitted their draft revised certification plans to EPA by the March 
2020 deadline and the draft plans are presently undergoing review at 
EPA. Shortly after the March 2020 deadline, the COVID-19 public health 
emergency disrupted the normal progress of the EPA's review and 
approval of the draft plans. EPA and certifying authorities could not 
put the amount of effort into this part of the rule implementation that 
was originally anticipated, as they had to divert their resources to 
addressing pandemic-related issues. Thus, only part of the cost to 
certifying authorities estimated in the 2017 rule has presently been 
spent and some of the cost will be expended during the additional 
extension period. Therefore, this interim final rule is not expected to 
significantly change the costs to certifying authorities estimated in 
the 2017 Economic Analysis (EA) (Ref. 2).
2. Cost to Certified Applicators
    The other sectors affected by the 2017 rule (e.g., commercial and 
private applicators) are not incurring any costs until revised 
certification plans take effect. Once the revised plans take effect, 
the 2017 EA estimated that commercial applicators and private 
applicators would incur annualized costs of $16.2 million and $8.6 
million, respectively, to meet the new certification standards. Some of 
these costs could be delayed as revised programs are approved and 
implemented over a longer period of time.
3. Potentially Delayed Benefits of the 2017 Rule
    The delay in the approval of revised certification plans may also 
delay some benefits that would have otherwise accrued if certification 
plans were approved and implemented by the deadline established in the 
2017 rule, as assessed in the 2017 EA. In 2017, EPA estimated that 
implementing the new federal certification requirements would reduce 
acute illness caused by exposure to RUPs, based on an analysis of 
pesticide incidents assuming that about 20% of poisonings are reported 
(a plausible estimate based on the available literature regarding 
occupational injuries or chemical poisoning incidents). Incidents may 
result in harms to applicators, persons in the vicinity, and the 
environment. Reported incidents most commonly cite exposure to the 
applicator or farmworkers in adjacent areas. Based on avoided medical 
costs and lost wages, the annualized benefits of the rule were 
estimated to be between $51.1 and $94.4

[[Page 71834]]

million. In addition, EPA expected that improved training would also 
reduce chronic illness among applicators from repeated RUP exposure and 
would benefit the public from better protections from RUP exposure when 
occupying treated buildings or outdoor spaces, consuming treated food 
products, and reducing the impact on non-target plants and animals. To 
the extent that this rule delays implementation of the 2017 rule, it 
will delay accrual of some of those benefits.
    Not all the benefits of certification program revisions will be 
delayed, however, since some programs have been or will be able to 
start implementing changes sooner. Certifying authorities can begin 
implementing their revisions to their programs as soon as they are 
approved by EPA, some of which are anticipated to be approved in early 
2022. In some jurisdictions, portions of revised certification programs 
are presently being implemented and in compliance with or exceeding the 
2017 rule requirements, such as imposing minimum age requirements and 
updating manuals and exam administration procedures, so some benefits 
are already being realized in advance of full plan approvals. 
Additionally, some certifying authorities were forced to make changes 
to their existing certification programs to accommodate COVID-19-
related protocols. Any changes that were made to existing plans to make 
these accommodations were required to be consistent with the new 
requirements and standards established in the 2017 rule.
    Without the extension, however, the benefits of the 2017 rule would 
not be fully realized. The impact of plans expiring absent EPA's 
approval of modified plans has far-reaching implications across many 
business sectors, including but not limited to the agricultural sector, 
importation and exportation business, and structural pest control 
(e.g., termite control), and could potentially impact all communities 
and populations throughout the U.S. in various ways as discussed in 
Unit I.E.4. In addition to the potential delay of benefits that would 
result from this extension, EPA and certifying authorities have already 
invested significant resources in the preparation and review of plan 
modifications that would fully implement the 2017 rule. It is EPA's 
considered judgement that the sunk cost of these investments, taken 
together with the significant costs of not extending the deadline as 
discussed in Unit I.E.4., outweigh the delayed benefits. EPA will 
continue to work expeditiously with certifying authorities to review 
and approve plans on a rolling basis. EPA's ongoing collaboration with 
the certifying authorities, which was significantly impacted by the 
COVID-19 pandemic, will result in modified plans that are protective of 
the environment and human health, including the health of certified 
pesticide applicators and those under their direct supervision, and 
will ensure that certified applicators are trained to prevent bystander 
and worker exposures as contemplated in the 2017 rule.
4. Costs of Not Extending the Deadline
    If the regulatory deadline is not extended, it is likely that EPA 
will be unable to approve many of the state, territory, tribal, and 
other federal agency certification programs, resulting in termination 
of these programs. EPA would have to take responsibility for 
administering certification programs for much of the country. A gap in 
coverage will likely exist between when certification programs expire 
and when EPA can fully implement EPA-administered certification 
programs, resulting in RUPs being unavailable for use in many places 
during the 2022 growing season and potentially through the end of 2022 
or longer. It is also unlikely that EPA's certification programs would 
offer the same availability and convenience as those offered by state, 
territorial, and tribal certifying authorities, so it is likely that 
some applicators would face higher costs or be unable to obtain 
certification to apply RUPs. Additionally, once the EPA-administered 
certification plans are in place, they may in some cases be less 
protective than state plans would be, as many state plans include 
requirements that are more protective than the EPA requirements and 
these benefits will be lost if the deadline is not extended and EPA 
takes over many of the country's certification programs.
    Additionally, EPA would be forced to expend time and resources in 
establishing the infrastructure to administer these certification 
programs, which would further delay coordination with certifying 
authorities whose plans were either approved and would be in the 
process of being implemented, or are awaiting approval. This is likely 
to cause significant disruption for agricultural, commercial, and 
governmental users of RUPs, and could have consequences for pest 
control in a broad variety of areas, including but not limited to the 
control of public health pests (e.g., mosquito control programs), pests 
that impact agriculture and livestock operations, structural pests 
(e.g., termites), pests that threaten state and national forests, and 
pests in containerized cargo. Applicators could lose work and income. 
Further, the expiration of certification plans could lead to confusion 
and potential enforcement issues when certifications that were formerly 
valid suddenly expire. It is also unlikely that EPA's certification 
programs could offer the depth of specialization found in many state, 
territorial and tribal certifying programs, which may be tailored to 
the particular pest control and human health needs commonly found in 
these localities. Thus, applicators certified under EPA programs would 
only be assessed for competency at the minimum federal standards and 
may not receive the specialized training that state, territorial, and 
tribal certifying authorities often provide. In addition, many states 
require professional applicators to be trained and licensed to apply 
general use pesticides and it is unclear to what extent states would be 
able to support those programs if they were to lose authority to 
certify RUP applicators.

F. Request for Comments

    The Agency invites certifying authorities, certified applicators, 
and the public to provide their views on the extension of the 
expiration date to November 4, 2022. Additionally, in advance of the 
planned NPRM seeking further extension of this deadline, commenters are 
encouraged to provide feedback on the need for, or concerns over, 
further extending the expiration date of existing plans and the 
appropriate length of a longer extension if warranted. Comments on this 
interim final rule will also be considered in the development of that 
rulemaking.

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

    1. Submitting CBI. Do not submit this information to EPA through 
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

[[Page 71835]]

comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

II. Background

A. January 2017 Final Rule

    In January 2017, EPA finalized a rule that revised the 
Certification of Pesticide Applicators regulations at 40 CFR part 171 
(certification or CPA rule) (Ref. 1). The certification rule sets 
standards of competency for persons who use RUPs and establishes a 
framework for certifying authorities to administer pesticide applicator 
certification programs. One of the stated purposes of the 2017 rule is 
to ensure that persons using RUPs are competent to use these products 
without causing unreasonable adverse effects to themselves, the public, 
or the environment.
    In updating the CPA regulations, EPA revised the regulation to 
enhance the following: Commercial and private applicator competency 
standards, exam and training security standards, standards for 
noncertified applicators working under the direct supervision of a 
certified applicator, tribal applicator certifications, and the 
requirements for submission, approval, and maintenance of state, 
tribal, territory, federal agency, and EPA-administered certification 
plans. The final rule also revised the regulation by adding categories 
of certification for commercial and private applicators, adding a 
recertification interval and criteria for recertification programs 
administered by certifying authorities, and establishing a minimum age 
for both certified applicators and noncertified applicators who use 
RUPs under direct supervision of certified applicators.
    For federal agency plans, the final rule deleted the section on 
Government Agency Plans (GAP) in the old 40 CFR 171 and codified the 
existing policy on review and approval of federal agency certification 
plans prior to the 2017 rule. For tribal agency plans, the final rule 
offered tribal governments three options not previously provided for 
certifying applicators in Indian country. A tribe may choose to allow 
persons holding currently valid certifications issued under one or more 
specified state, tribal, or federal agency certification plans to apply 
RUPs within the tribe's Indian country, develop its own certification 
plan for certifying private and commercial applicators, or take no 
action, in which case EPA may, in consultation with the tribe(s) 
affected, implement an EPA-administered certification plan within the 
tribe's Indian country. EPA currently administers (Ref. 3), and has 
proposed updates to (Ref. 4), a federal certification program covering 
Indian country not otherwise covered by an individual tribal 
certification plan.
    Under the 2017 rule, existing certification plans approved by EPA 
before the effective date of the rule (March 6, 2017) would remain in 
effect until March 4, 2020. If a certifying authority submitted an 
amended certification plan to EPA for approval by the March 2020 
deadline, the existing certification plan would continue to remain in 
effect until EPA has reviewed and responded to the amended 
certification plan, but not beyond March 4, 2022, unless EPA authorizes 
further extension in its approval of an amended certification plan. EPA 
will specify in its approval of a plan how long the existing plan may 
remain in effect while the certifying authority prepares and completes 
implementation of its amended certification plan. EPA will base each 
certifying authority's implementation period on the circumstances of 
that jurisdiction.

B. Attempted Changes to the 2017 Rule's Effective Date and Efforts To 
Meet the Regulatory Deadlines

    In a series of Federal Register notices published in 2017 (Refs. 5, 
6, and 7), EPA attempted to delay the effective date of the 2017 rule 
until May 22, 2018 in order to reconsider the merits of the rule. 
Litigation over the effective date resulted in the delay rules being 
vacated and the original effective date of March 4, 2017, being 
restored (Ref. 8). While efforts to begin outreach and implementation 
of the certification rule continued during this process, such as EPA's 
course for regulatory agencies in April 2017 (Ref. 9), some of the 
Agency's efforts to develop and provide guidance and support materials 
on the Agency's expectations regarding the revised certification plans 
slowed down, and some certifying authorities delayed efforts to update 
their certification plans under the expectation that the three-year 
window to revise and submit modified certification plans was not going 
to start until May 22, 2018, if at all. The uncertainty about whether 
the rule was effective and its potential fate upon reconsideration 
caused EPA and the certifying authorities to lose some of the time the 
rule had allotted for collaboration in advance of the March 2020 
submission deadline.
    Despite some of the early delays, EPA and the certifying 
authorities were productive during the remaining two years, with 
significant collaborative efforts on an individual level between the 
certifying authorities and EPA Regional Offices, as well as in-person 
group settings with the certifying authorities and EPA staff (Ref. 10). 
These efforts resulted in all certifying authorities submitting their 
draft certification plan revisions to EPA by the March 2020 deadline 
established in regulation. As a result, all plans that were approved by 
EPA prior to March 6, 2017, continue to remain in effect while EPA 
reviews and works with the certifying authorities toward approval of 
their certification plans. These existing certifications plans are set 
to expire on March 4, 2022, unless the modified plans are approved by 
EPA and the approved plan specifies the time needed to fully implement 
the revisions identified.

C. Impact of the COVID-19 Public Health Emergency on EPA's Review and 
Approval Process

    When EPA selected a two-year period from March 2020 to March 2022 
for evaluating and approving modified plans in the 2017 rule, the 
Agency had anticipated that significant engagement would continue with 
the certifying authorities during the review period to ensure that 
their draft certification plans meet or exceed the minimum 
requirements. EPA also expected that the proposed plans would need 
further modification before they could be approved by EPA. 
Additionally, EPA expected in 2017 that a number of plans would have 
been submitted earlier than the regulatory deadline for submission, 
thereby resulting in the reviews being spread out over a longer period 
of time instead of the two-review review period. However, due in part 
to the loss of early collaboration time and delays as described in Unit 
II.B., most of the plans were submitted on or shortly before the 
regulatory deadline, and some of the work that would have been done by 
EPA and certifying authorities before plan submission was shifted into 
EPA's review period, thereby increasing the level of effort for both 
EPA and certifying authorities during this two-year period. Despite 
these issues, EPA anticipated and planned for much of the additional 
work after submission to be completed by May 2021, with final review 
and approvals to follow shortly thereafter.
    However, while EPA was prepared for this influx of plans, shortly 
after the March 2020 submission deadline, the COVID-19 public health 
emergency arose. This significantly impacted the certifying 
authorities' resources and ability to address EPA comments in a timely 
manner, as resources shifted to address pressing public health needs 
related to COVID-19. Additionally, EPA

[[Page 71836]]

necessarily redirected some of the staff and resources dedicated to 
certification plan reviews to address emerging COVID-19 related issues. 
Examples include providing support to the existing certification 
programs to adapt to the COVID-19 crisis (Ref. 11), as well as 
addressing a number of COVID-19-related issues impacting farmworker 
pesticide safety under the Agricultural Worker Protection Standard 
(WPS) at 40 CFR 170 such as health concerns around in-person training 
and reduced availability of respiratory protection equipment (Ref. 12, 
13, 14, and 15). EPA staff involved in plan reviews also spent 
considerable time early in the pandemic to help respond to public 
inquiries (both in Spanish and English) regarding COVID-19 and 
pesticide products that may be effective at killing the virus, among 
other support efforts within the Agency at the time.
    COVID-19 also drew certifying authorities' resources away from 
pursuing compliance with the 2017 rule in various ways, such as the 
need to accommodate social distancing in their applicator training and 
testing procedures. To support these efforts, EPA staff frequently met 
with state and regional staff and issued guidance (Ref. 11) to ensure 
that these program changes were consistent with the new federal 
requirements while meeting their needs during the pandemic. This 
resulted in delayed reviews and EPA feedback on the new certification 
plans. While EPA anticipates that all plans will have been reviewed and 
returned to the certifying authorities with comments by February 2022, 
the early impacts of COVID-19 on available resources and plan reviews 
have significantly limited the amount of time that many certifying 
authorities have had to address EPA's comments prior to the March 2022 
deadline.

D. PRIA 4 Restriction

    In 2017, EPA published a document in the Federal Register stating 
that the Agency had initiated rulemaking to reconsider the minimum age 
requirements under 40 CFR 171 (Ref. 16). As indicated in Unit I.B.2., 
negotiations around the PRIA 4 reauthorization resulted in the mandate 
requiring EPA to carry out and implement the 2017 rule as finalized and 
prohibited the Agency from revising or developing revisions to the CPA 
regulations prior to October 1, 2021, thereby halting the 
reconsideration of the minimum age requirements and any other potential 
changes to the certification rule until that date. In accordance with 
PRIA 4, EPA has been working with the certifying authorities to revise 
and complete the review and approval process of their certification 
plans by the deadlines established in 40 CFR 171.5.
    However, the COVID-19 public health emergency has negatively 
impacted both the Agency's ability to review and approve plans in a 
timely manner and has impacted the certifying authorities' ability to 
respond to Agency comments quickly and effectively as discussed in Unit 
II.C. While EPA has been aware that the review and approval of plans 
was behind schedule for the reasons previously described, EPA was 
prohibited from undertaking any effort to amend the certification rule 
to extend the expiration date for the existing plans until October 1, 
2021, when the PRIA 4 prohibition against revising or developing 
revisions expired.
    FIFRA imposes additional requirements that add to the complexity of 
rulemaking. One requirement, 7 U.S.C. 136w(a)(2)(A) and (B), requires 
up to 60 days of review by the Secretary of Agriculture for proposed 
rules and 30 days for final rules (see Unit V). Another requirement, 7 
U.S.C. 136w(a)(4), provides that a rule does not become effective until 
60 days after it has been promulgated. When FIFRA rulemaking 
requirements and the PRIA 4 prohibition are considered together, EPA 
did not have sufficient time to comply with conventional notice and 
comment rulemaking procedures and applicable executive orders.

III. Provisions of This Interim Final Rule

A. Need for Extending the Existing Plans' Expiration Date

    An extension of the expiration date for existing certification 
plans is needed to ensure that federal, state, territory, and tribal 
agencies have sufficient time to revise their certification plans in 
response to EPA's feedback on their draft certification plans. Absent 
an extension of this deadline, it is likely that a significant number 
of state, territory, tribal, and other federal agency certification 
programs will terminate, causing severe disruption for agricultural, 
commercial, and governmental users of RUPs. Failure to extend the 
regulatory deadline, and the resulting expiration of many certification 
programs, would significantly limit access to certification, thereby 
limiting access to RUPs that are necessary for various industries that 
rely upon pest control.
    If EPA is unable to act expeditiously to extend the regulatory 
deadline, many existing certification plans that remain in effect 
pending EPA's review of submitted certification plan modifications will 
expire on March 4, 2022, in which case 7 U.S.C. 136i(a) requires that 
EPA provide RUP applicator certification programs in states (including 
territories) where a state certification plan is not approved. If EPA 
were to take on the burden of administering certification programs for 
much of the country, it would draw resources away from other important 
Agency priorities, including implementation of certification plans that 
are approved before the March 2022 deadline. In addition, it would take 
significant time and resources to set up the infrastructure for such 
federal certification programs and to train, test, and certify 
applicators, which would likely result in RUP use being curtailed in 
affected states. It is unlikely that EPA would be able to establish 
these federal certification programs before the start of the 2022 
growing season, which would have potentially devastating impacts on the 
agricultural sector in many parts of the country. Moreover, once EPA-
administered state certification programs are established, it is 
unlikely that they would operate at the same capacity as existing state 
programs, but rather, would provide fewer and less localized 
opportunities for applicators to satisfy certification requirements. As 
a result, significant adverse effects are expected on the pest control 
industry if current plans expire, as existing certifications will no 
longer be valid and will need to be replaced with federal 
certifications, likely creating economic and public health 
ramifications in a wide range of sectors such as agricultural commodity 
production, public health pest control, and industrial, institutional, 
and structural pest control. RUP access in this scenario would be 
minimal for most, if not all, of the 2022 growing season, and 
significant disruptions could extend even further.

B. New Deadline for Certification Plan Approvals

    Under this interim final rule, the deadline for amended 
certification plans to be approved without interruption of the existing 
certification plans provided in 40 CFR 171.5(c) is being changed from 
March 4, 2022, to November 4, 2022. This additional time is necessary 
to assure that all the certifying authorities have enough time to 
present approvable certification plans, and for EPA to work more 
closely with the state, territory, and tribal agencies on necessary 
modifications, and ultimately approve their certification plans. As 
some certifying authorities are close to completing their revisions and 
receiving

[[Page 71837]]

EPA approval on their plans, EPA anticipates that some certification 
plan approvals will begin in early 2022 and will continue through the 
revised November 4, 2022 deadline. EPA anticipates that notice of 
certification plan approvals will be periodically provided to the 
public in batched notices in the Federal Register and on EPA's website 
as they are approved.
    The extension in this interim final rule will also provide EPA with 
additional time to issue a separate NPRM seeking further extension of 
the deadline, providing stakeholders an opportunity to submit comments 
on the need for an additional extension to the expiration date for 
existing plans, and to include in their comments specific information 
detailing the necessity for or concerns over such an extension. EPA 
will be seeking this additional comment, because EPA did not have 
sufficient time to propose an extension prior to the regulatory 
deadline and is interested in seeking additional information to 
determine an appropriate length of time for such an extension. During 
this upcoming comment period in the following proposed rule, EPA 
expects that certifying authorities and other interested stakeholders 
will be able to provide more information on the efforts, issues, and 
concerns within each certifying authorities' jurisdiction and the 
potential impacts of delayed certification plans should plans require 
additional review time beyond November 4, 2022.

IV. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the person 
listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Pesticides; Certification of Pesticide Applicators; Final 
Rule. Federal Register. 82 FR 952, January 4, 2017 (FRL-9956-70).
2. EPA. Economic Analysis of the Final Amendments to 40 CFR part 
171: Certification of Pesticide Applicators [RIN 2070-AJ20]. 
December 6, 2016. Docket ID No. EPA-HQ-OPP-2011-0183-0807.
3. EPA. Final EPA Plan for the Federal Certification of Applicators 
of Restricted Use Pesticides Within Indian Country; Notice of 
Implementation. Notice. Federal Register. 79 FR 7185, February 6, 
2014 (FRL-9904-18).
4. EPA. EPA Plan for the Federal Certification of Applicators of 
Restricted Use Pesticides Within Indian Country; Proposed Revisions; 
Notice of Availability and Request for Comment. Federal Register. 85 
FR 12244, March 2, 2020 (FRL-10005-59).
5. EPA. Delay of Effective Date for 30 Final Regulations Published 
by the Environmental Protection Agency Between October 28, 2016 and 
January 17, 2017. Federal Register. 82 FR 8499, January 26, 2017 
(FRL-9958-87-OP).
6. EPA. Further Delay of Effective Dates for Five Final Regulations 
Published by Environmental Protection Agency between December 12, 
2016 and January 17, 2017. Federal Register. 82 FR 14324, March 20, 
2017 (FRL-9960-28-OP).
7. EPA. Pesticides: Certification of Pesticide Applicators; Delay of 
Effective Date. Federal Register. June 2, 2017 (82 FR 25529) (FRL-
9963-34).
8. Pineros y Campesinos Unidos del Noroeste, et al., v. Pruitt, et 
al., Case No. 17-CV-03434 (N.D. Cal. filed June 4, 2017); 293 F. 
Supp. 3d 1062 (N.D. Cal. 2018).
9. EPA. 2017 Pesticide Regulatory Education Programs. Course: 
Pesticide Applicator Certification. Baltimore, MD. April 4-6, 2017.
10. EPA. 2019 Pesticide Regulatory Education Program Applicator 
Certification Rule PREP. Crystal City, VA. April 29-May 2, 2019.
11. EPA. Memorandum: Guidance regarding the Certification of 
Pesticide Applicators during the COVID-19 Public Health Emergency. 
July 27, 2020.
12. EPA. Memorandum: Guidance on Satisfying the Annual Pesticide 
Safety Training Requirement under the Agricultural Worker Protection 
Standard during the COVID-19 Emergency. June 18, 2020.
13. EPA. Memorandum: Statement Regarding Respiratory Protection 
Shortages and Reduced Availability of Respirator Fit Testing Related 
to Pesticide Uses Covered by the Agricultural Worker Protection 
Standard during the COVID-19 Public Health Emergency. June 1, 2020.
14. EPA. Memorandum: Amendment to the June 1, 2020, Statement 
Regarding Respiratory Protection Shortages and Reduced Availability 
of Respirator Fit Testing Related to Pesticide Uses Covered by the 
Agricultural Worker Protection Standard during the COVID-19 Public 
Health Emergency. May 6, 2021.
15. EPA. Memorandum: Termination of the June 1, 2020 Statement/May 
6, 2021 Amendment Regarding Respiratory Protection Shortages and 
Reduced Availability of Respirator Fit Testing Related to Pesticide 
Uses Covered by the Agricultural Worker Protection Standard during 
the COVID-19 Public Health Emergency. August 10, 2021.
16. EPA. Pesticides; Certification of Pesticide Applicators Rule; 
Reconsideration of the Minimum Age Requirements. Federal Register. 
December 19, 2017 (82 FR 60195) (FRL-9972-11).

V. FIFRA Review Requirements

    In accordance with FIFRA section 25(a), EPA submitted a draft of 
this interim final rule to the United States Department of Agriculture 
(USDA) and to the appropriate Congressional Committees.
    USDA responded without comments. The FIFRA Scientific Advisory 
Panel (SAP) waived review of this interim final rule, concluding that 
the interim final rule does not contain issues that warrant scientific 
review by the SAP.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at 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 FR 51735, October 4, 1993) and was submitted to the 
Office of Management and Budget (OMB) for review under Executive Orders 
12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in 
response to OMB recommendations have been reflected in the docket for 
this action.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection 
activities or burden subject to OMB review and approval under the PRA, 
44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). OMB has 
previously approved the information collection activities contained in 
the existing regulations and associated burden under OMB Control 
Numbers 2070-0029 (EPA ICR No. 0155) and 2070-0196 (EPA ICR No. 2499). 
An agency may not conduct or sponsor, and a person is not required to 
respond to a collection of information that requires OMB approval under 
PRA, unless it has been approved by OMB and displays a currently valid 
OMB control number. The OMB control numbers for EPA's regulations in 
title 40 of the CFR, after appearing in the Federal Register, are 
listed in 40 CFR part 9, and included on the related collection 
instrument or form, if applicable.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA 
applies only to rules subject to notice and comment rulemaking 
requirements under the APA, 5 U.S.C. 553, or any other statute. This 
rule is not subject to

[[Page 71838]]

notice and comment requirements, because the Agency has invoked the APA 
``good cause'' exemption under 5 U.S.C. 553(b). See Unit I.B.2. for 
additional discussion about the ``good cause'' finding for this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This interim 
final rule will not impose substantial direct compliance costs on 
Indian tribal governments. Thus, Executive Order 13175 does not apply 
to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), 
as applying only to those regulatory actions that concern environmental 
health or safety risks that the EPA has reason to believe may 
disproportionately affect children, per the definition of ``covered 
regulatory action'' in section 2-202 of the Executive Order. This 
action is not subject to Executive Order 13045, because it does not 
concern an environmental health risk or safety risk.

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

    This is not a ``significant energy action'' as defined in Executive 
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to 
have a significant adverse effect on the supply, distribution or use of 
energy and has not otherwise been designated by the Administrator of 
the Office of Information and Regulatory Affairs as a significant 
energy action.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards. As such, NTTAA 
section 12(d), 15 U.S.C. 272 note, does not apply to this action.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14008: Tackling the Climate Crisis at Home and Abroad

    In accordance with Executive Order 12898 (59 FR 7629, February 16, 
1994) and Executive Order 14008 (86 FR 7619, January 27, 2021), EPA 
finds that this action will not result in disproportionately high and 
adverse human health, environmental, climate-related, or other 
cumulative impacts on disadvantaged communities, as well as the 
accompanying economic challenges of such impacts during this 
administrative action to extend the expiration date. This extension 
will provide EPA and the certifying authorities an opportunity to 
finalize the revised certification plans, ensuring that the increased 
protections identified in the 2017 rule are realized for all affected 
populations. EPA will continue to work expeditiously with certification 
authorities to review and approve plans on a rolling basis. This 
engagement, which was impacted by the COVID-19 pandemic, will ensure 
the modified plans are appropriately protective of certified pesticide 
applicators and those under their direct supervision, and will ensure 
that certified applicators are trained to prevent bystander and worker 
exposures.

K. Congressional Review Act (CRA)

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

List of Subjects in 40 CFR Part 171

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

    Dated: December 14, 2021.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons set forth in the preamble, EPA amends 40 
CFR part 171 as follows:

PART 171--CERTIFICATION OF PESTICIDE APPLICATORS

0
1. The authority citation for part 171 is revised to read as follows:

    Authority:  7 U.S.C. 136-136y.


Sec.  171.5  [Amended]

0
2. Amend Sec.  171.5 by revising paragraph (c) to read as follows:
* * * * *
    (c) Extension of an existing plan during EPA review of proposed 
revisions. If by March 4, 2020, a certifying authority has submitted to 
EPA a proposed modification of its certification plan pursuant to 
subpart D of this part, its certification plan approved by EPA before 
March 6, 2017 will remain in effect until EPA has approved or rejected 
the modified plan pursuant to Sec.  171.309(a)(4) or November 4, 2022, 
whichever is earlier, except as provided in paragraph (d) of this 
section and Sec.  171.309(b).
* * * * *
[FR Doc. 2021-27373 Filed 12-17-21; 8:45 am]
BILLING CODE 6560-50-P