Pesticides; Certification of Pesticide Applicators; Further Extension to Expiration Date of Certification Plans, 50953-50965 [2022-17823]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Rules and Regulations]
[Pages 50953-50965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17823]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2021-0831; FRL-9134.1-04-OCSPP]
RIN 2070-AL01


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is extending the 
deadline by which existing certification plans for the certification of 
restricted use pesticide (RUP) applicators may remain valid until 
either EPA has approved revised certification plans that conform to the 
updated federal standards or they expire, whichever is earlier, to 
November 4, 2023. Federal, state, territory, and tribal certifying 
authorities with existing certification plans are required to complete 
revisions to their existing plans conforming with the updated federal 
standards for RUP applicator certification, and the regulations 
establish the deadline by which the existing plans will expire unless 
the revised plans are approved by the Agency. EPA is extending this 
deadline to allow additional time for any remaining proposed 
certification plan modifications pending approval to continue being 
reviewed and approved by EPA without interruption to federal, state, 
territory, and tribal certification programs or to those who are 
certified to use RUPs under those programs.

DATES: This final rule is October 18, 2022.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2021-0831, is available at 
https://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 and the OPP Docket is (202) 566-1744. Please review the 
visitor instructions and additional information about the docket 
available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
evaluation Division (Mail Code 7508M), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460-0001; telephone number: (202) 566-2376; email address: 
[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 many also be 
potentially affected by this action if you are: a registrant of RUP 
products; a person who applies RUPs, including those under the direct 
supervision of a certified applicator; a person who relies upon the 
availability of RUPs; someone who hires a certified applicator to apply 
an RUP; a pesticide safety educator; or other person who provides 
pesticide

[[Page 50954]]

safety training for pesticide applicator certification or 
recertification. The following list of North American Industrial 
Classification System (NAICS) codes is not intended to be exhaustive, 
but rather provides a guide to help readers determine whether this 
document applies to them. Potentially affected entities may include:
     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).
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical person listed 
under FOR FURTHER INFORMATION CONTACT.

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

    This action is issued under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, particularly sections 
136a(d), 136i, and 136w.

C. What action is the Agency taking?

    This action extends the expiration date for existing certification 
plans at 40 CFR 171.5(c) from November 4, 2022, to November 4, 2023. No 
other changes to the certification standards and requirements specified 
in 40 CFR part 171 are being made in this rulemaking.

D. Why is the Agency taking this action?

    Without the deadline extension, federal, state, territory, and 
tribal certification programs will expire if their revised 
certification plans are not approved by the recently modified 
regulatory deadline of November 4, 2022 (Ref. 1). Applicators formerly 
certified under such expired plans will no longer be allowed to use 
RUPs. While all initial draft plans have been reviewed and returned to 
the federal, state, territory, and tribal agencies (certifying 
authorities) for further revision, the recent extension of eight months 
(which extended the original deadline of March 4, 2022, to November 4, 
2022) is not sufficient time for all certifying authorities to respond 
to EPA comments and to complete the approval process. Additional time 
is needed for EPA to work closely with the certifying authorities whose 
plans are still pending approval to assure that their proposed 
certification plan modifications will meet current federal standards.
    As of July 8, 2022, EPA has approved 7 out of 68 revised 
certification plans and estimates that approximately half of the plans 
should be approved before November 2022. Although significant progress 
has been and continues to be made in the development of revised plans 
and EPA's subsequent reviews and approvals, COVID-19 resource 
constraints early in the review process had impacted the time 
certifying authorities have had to respond to EPA's comments and the 
Agency's ability to work with certifying authorities to assure that EPA 
can approve their plans by the regulatory deadline, thereby causing 
delays in reviews, revisions, and approvals. EPA has assessed the 
progress and pace of final revisions and approvals and expects the 
average certification plan approval process to be completed 
approximately a year after certifying authorities have received 
feedback from EPA, though this could vary depending upon individual 
circumstances as indicated in the responses to the public comments in 
Unit III. Given these assessments, EPA anticipates that at least 30 out 
of 68 plans might not be approved by the November 2022 deadline due in 
part to receiving feedback from EPA later than previously expected or 
due to complex issues that still need to be addressed. The plans most 
at risk of missing the November 2022 interim final rule (IFR) deadline 
account for approximately 39% of commercial applicators and 51% of 
private applicators, or about 45% of all currently certified 
applicators in the U.S. To avoid disruptions to a significant portion 
of the country, further collaboration is still needed between EPA and 
the remaining certifying authorities to finalize and approve all plans. 
EPA has been and will continue working expeditiously toward approving 
and supporting the implementation of plans that meet the current 
federal standards and has been providing periodic notifications to the 
public in the Federal Register and on EPA's website when those 
approvals have occurred. EPA intends to maintain this level of 
transparency as it works toward finalizing the remaining plans and aims 
to complete this process as quickly as possible. The public may access 
the most current information about the Agency's progress at https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators (Ref. 2).
    EPA finds that an additional one-year extension of the deadline is 
needed to assure that applicators certified under a plan that would 
otherwise expire will continue to be authorized to use RUPs without 
interruption and to provide the remaining certifying authorities with 
plans pending approval with adequate time to provide responses to EPA 
comments on their plans. The extension will also provide additional 
time for EPA to work more closely with the certifying authorities to 
address any remaining feedback and ensure their plans meet the updated 
federal standards at 40 CFR part 171. EPA believes that the additional 
year will provide enough time to complete rolling approval of all 
certification plans, while also providing enough time to assess the 
individual-based needs of the remaining state, territory, tribal and 
federal plans up to the new regulatory deadline.

E. What are the estimated incremental impacts of this action?

    Incremental impacts of the extension to the regulatory deadline are 
generally positive, because the extension provides certifying 
authorities and EPA with more time to ensure that all modified plans 
meeting the minimum federal requirements are in place, while failure to 
extend the regulatory deadline would likely have significant adverse 
impacts on the certifying authorities, the economy, public health, and 
the environment where plans may expire without the extension (see 
discussion in Unit II.B.).
    The 2017 Certification of Pesticide Applicators Rule (2017 CPA 
Rule) (Ref. 3) established the standards for certifying RUP applicators 
and also set a deadline with specific consequences if a certification 
plan were to expire. Therefore, EPA relies on information from the 2017 
CPA Rule to assess the incremental economic impacts of this proposed 
rule to extend the recently modified deadline of November 4, 2022 (Ref. 
1), to November 4, 2023. The impacts of the extension are that the

[[Page 50955]]

implementation costs borne by the certifying authorities will be 
expended over an additional period of time and some of the costs to 
commercial and private applicators may be delayed. Some of the benefits 
of the rule (e.g., reduction in acute illnesses from pesticide 
poisoning) are postponed as the implementation of some plans may be 
delayed while EPA works with the remaining certifying authorities 
toward approval of their revised certification plans.
    1. Cost to certifying authorities. The 2017 CPA Rule provided a 
compliance period for certifying authorities to develop, obtain 
approval, and implement any new procedures, regulations, or statutes to 
meet the new federal standards. The 2017 CPA Rule further provided that 
existing plans could remain in effect until March 4, 2022, which was 
recently extended to November 4, 2022 (Ref. 1), only to the extent 
specified in EPA's approval of a modified certification plan; EPA did 
not explicitly set a date for full implementation of the new programs. 
Generally, certifying authorities can begin implementing revisions to 
their programs when they are approved by EPA; however, depending on 
individual state, territory, or tribal procedural requirements and 
existing programmatic infrastructure, portions of revised certification 
programs may be and, in some cases, already are being implemented in 
support of the 2017 CPA Rule requirements. All certifying authorities 
submitted their draft revised certification plans to EPA by the March 
2020 submission deadline established in the 2017 CPA Rule. Shortly 
after the March 2020 deadline, the COVID-19 public health emergency 
disrupted the expected schedule of the EPA's review and approval of the 
draft plans. EPA and certifying authorities had to temporarily divert 
their resources to address pandemic-related issues, resulting in delays 
of revised plan reviews, approvals, and implementation than was 
originally anticipated. All draft plans have since undergone a detailed 
review at EPA and have been returned back to the certifying authorities 
for responses, with some having been approved by EPA. Thus, only part 
of the cost to certifying authorities estimated in the 2017 CPA Rule 
has presently been incurred and some of the cost will be expended 
during the additional extension period for those plans awaiting 
approval by EPA. Therefore, this rule is not expected to significantly 
change the costs to certifying authorities estimated in the 2017 
Economic Analysis (EA) (Ref. 4).
    2. Cost to certified applicators. The other sectors affected by the 
2017 CPA Rule (e.g., commercial and private applicators) do not incur 
any costs until revised certification plans take effect. Once the 
revised plans take effect, the 2017 EA estimated that commercial 
applicators and private applicators would incur annualized costs of 
$16.2 million and $8.6 million, respectively, to meet the new 
certification standards. EPA expects that around half of the plans 
might not be approved by November 2022, so some of these costs could be 
delayed as the remaining plans are approved and implemented over a 
longer period of time. Not all costs to certified applicators will be 
delayed, as a number of plans have or will soon be approved by EPA. 
Moreover, some certifying authorities have already begun work toward 
implementing their plans or will be able to start implementing changes 
conforming to the 2017 CPA Rule before their plan's approval.
    3. Potentially delayed benefits of the 2017 CPA Rule. The delay in 
the approval of revised certification plans may also delay some 
benefits that would have otherwise accrued if certification plans were 
approved and implemented by the deadline established in the 2017 CPA 
Rule, as assessed in the 2017 EA. In 2017, EPA estimated that 
implementing the new federal certification requirements would reduce 
acute illness caused by exposure to RUPs, based on an analysis of 
pesticide incidents assuming that about 20% of poisonings are reported 
(a plausible estimate based on the available literature used for the 
2017 EA regarding occupational injuries or chemical poisoning 
incidents). Incidents may result in harms to applicators, persons in 
the vicinity, and the environment. Reported incidents analyzed in the 
2017 EA most commonly cited exposure to the applicator or farmworkers 
in adjacent areas. Based on avoided medical costs and lost wages, the 
annualized benefits of the rule were estimated to be between $51.1 and 
$94.4 million. In addition, EPA expected that improved training would 
also reduce chronic illness among applicators from repeated RUP 
exposure and would benefit the public from better protections from RUP 
exposure when occupying treated buildings or outdoor spaces, consuming 
treated food products, and reducing the impact on non-target plants and 
animals. To the extent that this rule delays implementation of the 2017 
CPA Rule, it will delay accrual of some of those benefits, but only 
partially as a number of plans have been approved and are currently 
being implemented.
    Not all the benefits of certification plan revisions will be 
delayed for a period of time up to November 4, 2023, however, since 
some programs have been approved and begun implementation or will be 
able to start implementing changes sooner than the new expiration date 
due as they approach approval. Certifying authorities can begin 
implementing their revisions to their programs as soon as they are 
approved by EPA, and many have begun that work. Since the most recent 
extension, EPA plan approvals have begun, with 7 certification plans 
having been approved as of July 8, 2022, and more will continue to be 
approved on a rolling basis. In some jurisdictions, portions of the 
2017 CPA Rule revised certification requirements, such as imposing 
minimum age requirements and updating manuals and exam administration 
procedures, are already being implemented, resulting in a number of the 
benefits of the 2017 CPA Rule already being realized in advance of full 
plan approvals. Additionally, some certifying authorities were forced 
to make changes to their existing certification programs to accommodate 
COVID-19 protocols, all of which were required to meet or exceed the 
new requirements and standards established in the 2017 CPA Rule. While 
the new extension will run until November 2023, EPA anticipates 
approving plans on a rolling basis to conclude its approval process as 
soon as possible.
    The impact of plans expiring absent EPA's approval of modified 
plans has far-reaching implications across many business sectors, 
including but not limited to the agricultural sector, importation and 
exportation business, and structural pest control (e.g., termite 
control), and could potentially impact all communities and populations 
throughout the U.S. in various ways as discussed in Unit I.E.4. In 
addition to the potential delay of benefits that would result from this 
extension, EPA and certifying authorities have already invested 
significant resources in the preparation and review of plan 
modification that would fully implement the 2017 CPA Rule. It is EPA's 
considered judgement that the sunk cost of these investments, taken 
together with the significant costs of not extending the deadline for 
the remaining plans to be completed as discussed in Unit I.E.4., 
outweigh the delayed benefits in those jurisdictions. EPA has approved 
7 certification plans to as of July 8, 2022, with more to follow 
shortly after, and EPA continues to work expeditiously with certifying 
authorities

[[Page 50956]]

to review and approve the remaining plans on a rolling basis. EPA's 
ongoing collaboration with the certifying authorities has and will 
continue to result in modified plans that are protective of the 
environment and human health, including the health of certified 
pesticide applicators and those under their direct supervision, and 
will ensure that certified applicators are trained to prevent bystander 
and worker exposures as contemplated in the 2017 CPA Rule.
    4. Costs of not extending the deadline. If the existing regulatory 
deadline is not extended further, it is likely that EPA will be unable 
to approve some of the state, territory, tribal, and federal agency 
certification plans that may still need additional work and/or 
coordination beyond the recently revised November 2022 deadline, 
resulting in expiration of these plans. EPA would have to take 
responsibility for administering certification programs for a portion 
of the country where plans had expired. A gap in coverage would likely 
exist between when these certification plans expire and when EPA could 
fully implement EPA-administered certification programs, resulting in 
RUPs being unavailable for use in those places during the 2023 growing 
season and potentially through the end of 2023 or longer. It is also 
unlikely that EPA's certification programs would offer the same 
availability and convenience as those offered by state, territorial, 
and tribal certifying authorities, so some applicators could face 
higher costs (e.g., due to time commitment changes, new travel expenses 
to attend trainings, frequency of access, etc.) or be unable to obtain 
certification to apply RUPs. Once the EPA-administered certification 
plans are in place, they may, in some cases be less protective than 
state plans would be, as many state plans include requirements that are 
more protective than the EPA minimum requirements. The benefits of 
these more protective state requirements will be lost if the deadline 
is not extended and EPA takes over parts of the country's certification 
programs.
    Furthermore, the expiration of certification plans could lead to 
confusion and potential enforcement issues when certifications that 
were formerly valid suddenly expire. It is also unlikely that EPA's 
certification programs could offer the depth of specialization found in 
many State, territorial and tribal certifying programs, which may be 
tailored to the particular pest control and human health needs commonly 
found in these localities. Thus, applicators certified under EPA 
programs would only be assessed for competency at the minimum federal 
standards and may not receive the specialized training that state, 
territorial, and tribal certifying authorities often provide. In 
addition, many states require professional applicators to be trained 
and licensed to apply general use pesticides and it is unclear to what 
extent states would be able to support those programs if they were to 
lose authority to certify RUP applicators because in some cases, both 
programs are intertwined.
    Additionally, EPA would be compelled to expend time and resources 
in establishing the infrastructure to administer these certification 
programs, which would further delay coordination with certifying 
authorities whose plans were either approved and would be in the 
process of being implemented or are awaiting approval. This is likely 
to cause significant disruption for agricultural, commercial, and 
governmental users of RUPs, and could have consequences for pest 
control in a broad variety of areas, including but not limited to the 
control of public health pests (e.g., mosquito control programs), pests 
that impact agriculture and livestock operations, structural pests 
(e.g., termite control), pests that threaten state and national 
forests, and pests in containerized cargo. Applicators who use RUPs and 
are licensed under affected programs would likely lose work and income 
as a result.

II. Background and Goals of This Rulemaking

A. Background

    On December 20, 2021, EPA issued an IFR that extended the original 
expiration date from March 4, 2022, to November 4, 2022 (Ref. 1). Unit 
II. of the IFR's preamble provides a summary of the 2017 CPA Rule and 
related background, as well as a robust discussion of the various 
circumstances that prompted the extension and the rationale the Agency 
cited for issuing the IFR.
    On February 7, 2022, EPA proposed to extend the November 4, 2022 
deadline up to but not longer than November 4, 2024 (Ref. 5). EPA 
proposed this additional extension because the Agency recognized that 
some certifying authorities and EPA would potentially need more time to 
collaborate on and address issues raised during review of the plans, 
and the Agency did not have enough information to adequately assess how 
much additional time would be needed to complete this process at the 
time the proposal was published. EPA expressly requested public comment 
on the need for and appropriate length of a longer extension. EPA has 
taken these public comments, which are addressed further in Unit III., 
into consideration in concert with the overall status of the plan 
approval process to date.

B. Goals of This Rulemaking

    An additional extension of the expiration date for existing 
certification plans is needed to ensure that any remaining federal, 
state, territory, and tribal agencies waiting on certification plan 
approval have sufficient time to revise their certification plans in 
response to EPA's feedback on their draft certification plans. Absent 
an extension of this deadline, it is likely that a number of State, 
territory, and tribal agency certification programs will terminate, 
causing severe disruption for agricultural, commercial, and 
governmental users of RUPs. Failure to extend the regulatory deadline, 
and the resulting expiration of many certification programs, would 
significantly limit access to certification, thereby limiting access to 
RUPs that are necessary for various industries that rely upon pest 
control.
    If EPA does not act to extend the regulatory deadline, many 
existing certification plans that remain in effect pending EPA's review 
of submitted certification plan modifications would expire on November 
4, 2022, in which case FIFRA (7 U.S.C. 136i(a)) requires that EPA 
provide RUP applicator certification programs in states (including 
territories) where a state certification plan is not approved. If EPA 
had to take on the burden of administering certification programs for 
much of the country, it would draw resources away from concluding the 
Agency's approval process for the remaining plans and the Agency's 
ability to support certifying authorities with implementation of the 
certification plans that are approved before the November 2022 
deadline. In addition, it would take significant time and resources to 
set up the infrastructure for such federal certification programs and 
to train, test, and certify applicators, which would likely result in 
RUP use being curtailed in affected states. It is unlikely that EPA 
would be able to establish these federal certification programs before 
the start of the 2023 growing season, which would have potentially 
devastating impacts on the agricultural sector in the parts of the 
country without approved plans. Moreover, once EPA-administered state 
certification programs were established, it is unlikely that they would 
operate at the same capacity as existing state programs, but rather, 
would provide fewer and less localized opportunities

[[Page 50957]]

for applicators to satisfy certification requirements. As a result, 
significant impacts are expected on the pest control industry in 
jurisdictions without an approved plan, as existing certifications will 
no longer be valid and will need to be replaced with federal 
certifications, likely creating economic and public health 
ramifications in a wide range of sectors such as agricultural commodity 
production, public health pest control, and industrial, institutional, 
and structural pest control. RUP access in this scenario would be 
minimal for most, if not all, of the 2023 growing season, and 
significant disruptions could extend even further. This action would 
ensure that any remaining work can be completed with minimal impacts.

III. Public Comments

    Two 30-day public comment periods were held in relation to 
extending the expiration date of existing plans. The first comment 
period closed on January 20, 2022, which were in response to the IFR 
extending the original expiration date for existing plans from March 4, 
2022, to November 4, 2022 (Ref. 1). The second public comment period 
closed on March 9, 2022, which addressed the NPRM to further extend the 
expiration date up to but not longer than an additional two years, from 
November 4, 2022, to November 4, 2024 (Ref. 5). Between the two public 
comment periods, EPA received 22 submissions to the docket, comprising 
of 20 different commenters. Commenters included members of the public, 
state pesticide regulatory agencies and associations, an industry 
stakeholder, and farmworker advocacy organizations. A summary of and 
EPA's responses to the comments both in support of and in opposition to 
the proposed two-year extension are addressed in Units III.A. and B., 
respectively.

A. Support for a Two-Year Extension

1. General Support From Members of the Public
    a. Summary of comments. EPA received 12 general comments from 
members of the public, 11 of which provided comments that expressed 
overall support of EPA's proposal to extend the deadline up to two 
years, while one other provided comments not specific to this action. 
The comments submitted acknowledged the challenges faced by many during 
the COVID-19 public health emergency, and the impacts it has had on 
both certifying authorities and EPA's ability to review, respond, and 
approve certification plans. Some of these commenters stated that 
extensive and thorough review is needed to ensure public safety and to 
minimize any risks, and that these reviews should not be rushed through 
the process. Some of the commenters also referenced EPA's assessment in 
the NPRM on the potential impacts across the various sectors of the 
pest control industry, agriculture, and the public overall should 
existing plans expire without an approved plan in place, and that two 
years to complete these reviews should be enough time to complete 
reviews while avoiding disruptions throughout the country.
    b. EPA response. EPA appreciates the commenters' general support of 
the proposed rule to extend the deadline for amended certification 
plans to be approved by the Agency. EPA agrees with the commenters that 
additional time is needed to ensure that all certification plans are 
thoroughly reviewed and meet or exceed the updated federal standards 
for the certification of RUP applicators. While EPA initially proposed 
an extension of up to but not longer than two years, in light of other 
comments received in response to the NPRM and the progress the Agency 
has made on approving plans to date, EPA has determined that an 
extension of one additional year, to November 4, 2023, should be 
sufficient time to conclude its approval process for all certification 
plans submitted to the Agency.
    2. Support for an Extension of Two years From State Lead Agencies 
(SLAs) and Industry Stakeholders
    a. Summary of comments. EPA received one comment from an industry 
stakeholder, four comments from SLAs, and two comments from the 
Association of American Pesticide Control Officials (AAPCO). In 
general, these commenters expressed support for an extension of two 
years to November 4, 2024. Their support for a two-year extension 
revolved around the need to maintain continuity for pesticide 
applicators and expressed general concerns on both the economic and 
environmental aspects of plans expiring if all are not approved by the 
revised expiration date established in the IFR. More specific comments 
and EPA's responses are provided in the following sections.
    i. The IFR extension to November 4, 2022, is insufficient. AAPCO 
and the three SLAs who submitted comments to EPA all expressed support 
for EPA's IFR extending the deadline to November 4, 2022, given the 
pressures that COVID-19 had on completing EPA reviews and approvals and 
the limited amount of time the certifying authorities had to respond to 
EPA's feedback leading up to the original deadline of March 4, 2022. 
However, all expressed concern that the additional eight months 
provided in the IFR would not be enough time for all certifying 
authorities to review and respond to EPA's input and for EPA to approve 
them before the existing plans are set to expire.
    The commenters noted that slightly more than half of the plans 
submitted to EPA at the time of the IFR publication had been returned 
to the certifying authorities, and that the remaining would likely not 
be returned to the certifying authorities until February 2022 according 
to the IFR assessments. In their submitted comments, AAPCO reported 
that in a survey conducted of its membership that concluded on February 
25, 2022, some detailed reviews took EPA 17 to 22 or more months to 
return since the certifying authorities first submitted their plans to 
EPA, with four certifying authorities indicating they had not yet 
received their detailed review comments prior to the conclusion of 
their survey. As of February 25, 2022, approximately six certifying 
authorities indicated they had returned their revisions for approval, 
and that no certifying authority had yet received approval from EPA. 
Based on the time it has taken to complete the detailed review of the 
plans and to revise plans in response to EPA's reviews, the commenters 
felt that the additional eight months in the IFR did not seem adequate 
for EPA to complete the final reviews and approval processes for all of 
the revised plans. The commenters acknowledged that extensive review is 
necessary to ensure revised plans meet the requirements of the 2017 CPA 
Rule, and that the level of detail and the length of time until 
completion of EPA's review and approval ensures that revised plans meet 
the federal requirements and provide the necessary protections to 
pesticides applicators, those under their supervision, and bystanders. 
The commenters also recognized the impacts COVID-19 had on EPA's 
ability to complete the review and approvals by the original deadline 
and believe the impacts will potentially impacting conclusion of 
reviews leading up to the revised IFR deadline.
    Given that EPA needed more time to complete its reviews, the SLA 
commenters requested that EPA acknowledge the impacts of COVID-19 on 
their programs and resources and to provide the same time allowances 
the Agency took to review the plans so that certifying authorities can 
appropriately respond to the extensive comments and ultimately 
implement the final approved plans. Specifically, commenters cited the 
challenges

[[Page 50958]]

certifying authorities have faced attempting to overhaul their 
certification plans, such as the complexities and administrative 
hurdles it faces such as on-going state-level legislative factors, and 
these particular challenges must be considered in the review and 
approval process. The commenters did not believe that all certifying 
authorities, especially those who did not receive EPA input until 
February 2022, could complete these tasks by the November 2022 
deadline, and that the certifying authorities that received their plans 
later should be given an equitable amount of time to respond to 
comments.
    ii. Requests for a two-year extension to November 4, 2024. AAPCO, 
the SLAs, and the industry stakeholder all recommended that EPA extend 
the deadline for two years to November 4, 2024. Citing the delays that 
were discussed in comments in Unit III.A.2.b., commenters stated that 
while they are committed to implementing the changes under the 2017 CPA 
Rule, it is conceivable that an additional round of review to verify 
that any remaining issues have been addressed by the certifying 
authority could push the plan approval process beyond the IFR 
expiration date of November 4, 2022. Given the complexity of issues 
across the states, differences in legislative schedules and bills and 
administrative requirements that impacts state licensing programs, the 
commenters felt that these additional considerations warrant a further 
extension of two years to avoid potential negative impacts to farmers, 
ranchers, foresters, structural pest control professionals, and other 
industries and the public.
    b. EPA response. EPA agrees with the commenters that additional 
time is needed to ensure that all certification plans are thoroughly 
reviewed and meet or exceed the updated federal standards for the 
certification of RUP applicators. EPA also agrees with the commenters 
that certifying authorities who received their plans late should be 
given adequate time to review and respond to EPA's comments and 
acknowledges that there continues to be a need for EPA and some of the 
certifying authorities to collaborate on completing their plans. EPA 
agrees with the commenters that an additional extension ensures 
continual protection of pesticide applicators, provides EPA and 
certifying authorities the time needed to continue to work together to 
realize approval of plans and ultimately successful implementation of 
the 2017 CPA Rule, and avoids unintended economic and environmental 
risks associated with lapsed certification plans in any jurisdiction 
without an approved certification program in place.
    While EPA initially proposed an extension of up to but not longer 
than two years, in light of other comments received in response to the 
NPRM and the progress the Agency has made on approving plans to date, 
EPA has determined that an extension of one additional year, to 
November 4, 2023, should be sufficient time to conclude its approval 
process for all certification plans submitted to the Agency. Based on 
the timelines from EPA's most recently approved plans and ongoing 
collaboration with the certifying authorities, EPA estimates that most 
revisions by the certifying authorities, and EPA's second pass review 
and collaboration with the certifying authorities to complete the 
approval process, will take on average a year after having been 
returned to the certifying authority. The certifying authorities most 
at risk of not having their plans approved are those who had received 
their plans late, as indicated in the comments submitted by AAPCO. 
Additionally, several other plans with more complex issues or 
administrative requirements are expected to take longer to approve than 
average and will likely also miss the November 2022 deadline. As noted 
in one of the state agency's comments, EPA recognizes that there may be 
unforeseen circumstances or additional complexities within each state, 
tribe, or territory's internal legislative or administrative processes 
that may result in the final revision and approval process taking 
additional time beyond EPA's average estimates. While EPA expects to 
approve around half of the plans before November 2022, the Agency has 
identified at least 30 out of 68 plans that are the most at risk of 
missing the IFR deadline of November 4, 2022. The Agency is confident, 
however, that all plan approvals can be concluded before the new 
deadline of November 4, 2023.

B. Opposition to a Two-Year Extension

    EPA received three comments in opposition to the extension from two 
groups, which included a group of farmworker advocacy organizations who 
provided joint comments on both the IFR and NPRM, and a group of former 
regulators who provided comments on the NPRM. In summary, both 
commenters opposed the proposal to extend the existing deadline for an 
additional two years up to November 4, 2024, though each had different 
perspectives on appropriate approaches and length of potential 
extensions, which are addressed in the following sections.
1. Delay Beyond November 4, 2022, Is Unacceptable and Would Undermine 
2017 CPA Rule
    a. Summary of comments. The farmworker advocacy commenters state 
that at the time EPA adopted the 2017 CPA Rule, the previously existing 
rule had not been meaningfully updated in approximately 40 years and 
were under-protective, and that the 2017 CPA Rule imposed stricter 
certification and training standards that were necessary to meet the 
FIFRA mandate to ensure that RUPs do not cause unreasonable adverse 
effects to applicators, workers, the public, or the environment. The 
commenters state that until all plans are updated and approved by EPA 
as consistent with 2017 CPA Rule, applicators, workers, their families, 
communities, and others will remain at heightened risk of harm from 
RUPs.
    Among the changes made in the 2017 CPA Rule, the farmworker 
advocacy groups cited requirements that were particularly important to 
their organizations, members, and constituents, including: Increasing 
the minimum age of 18 to be certified as commercial or private 
applicator as well as performing work as a non-certified applicator 
under their direct supervision; The creation of new categories for 
those performing aerial pest control, soil fumigation, and non-soil 
fumigation to increase training content to avert drift during spray 
applications; and, The addition of training requirements for non-
certified applicators who work under the direct supervision of a 
certified applicator to ensure they have frequent and adequate training 
of pesticides and pesticide use. The farmworker advocacy commenters 
felt that so long as certifying authorities implementing certification 
programs exclude some of the requirements in the 2017 CPA Rule, high 
rates of preventable acute and chronic illness will persist among RUP 
applicators and the broader public. The commenters also referenced PCUN 
v. Pruitt (Ref. 6) in which EPA lost a previous attempt at extending 
the 2017 CPA Rule's effective date. The commenters relied on the 
opinion for this case, which stated that if implementation of the 2017 
CPA Rule were to be delayed, individuals will continue to be exposed to 
these dangers and will not benefit from the more stringent regulations 
provided by the revised regulations, as additional support for why an 
additional extension to the existing plans should not be finalized.
    Commenters who opposed the additional two-year extension did not 
believe that EPA adequately explained

[[Page 50959]]

why a two-year extension (from November 4, 2022, up to November 4, 
2024) was necessary, and that it is difficult to understand the 
justification of extending the deadline to what amounts to a nearly 
three-year extension beyond the original deadline of March 4, 2022. 
Commenters urged that it would be helpful to have details on the status 
of EPA's review of all 68 submissions, and when the Agency estimates 
its reviews and approvals to completed, in order to understand the need 
for an additional extension to the deadline.
    In the comments submitted jointly by farmworker advocacy 
organizations, the commenters expressed disappointment by the IFR 
extension and were not persuaded that there was a need for any 
extension of the deadline beyond November 4, 2022. The commenters 
stated that under the 2017 CPA Rule, the Agency had two full years 
since the March 2020 deadline for receiving states, territories, and 
tribes' draft updated certification plans to review those plans, work 
with the submitters as needed to revise them, and then approve 
compliant plans before the old, non-compliant plans expired. They also 
argue that while EPA points to COVID-19 to justify its IFR extension, 
the dangers farmworkers, agricultural workers, and non-certified 
applicators face from COVID-19 underscore why the new standards and 
training should go into effect without further delay, noting that 
agricultural workers are at greater risk from COVID-19 than the general 
public for a variety of reasons, including that they have had less 
access to vaccines, are often unable to miss work when they are sick, 
have limited ability to social distance, and often lack access to a 
supply of adequate masks. Moreover, they state that a disproportionate 
number of agricultural workers suffer from health problems, such as 
obesity and high blood pressure, which predispose them to a more 
serious course of COVID if they become infected. As a result, they 
argue that agricultural workers' exposures to certain pesticides can 
result in inflammation and other health effects that make them even 
more susceptible to getting COVID-19, and more likely to have serious 
effects if they do. The commenters expressed a concern that delayed 
implementation of the 2017 CPA Rule will increase agricultural workers' 
exposure to RUPs, thereby compromising their health and further 
jeopardizing their ability to avoid COVID-19 infection or recover 
quickly. The commenters also suggest that even if COVID-19 could 
justify an extension, the eight-month extension adopted in the IFR 
should be sufficient to make up for the lost time in the initial months 
of responding to the pandemic.
    The farmworker advocacy groups go on to state that based on EPA's 
assessment and representation of the progress it has made in the NPRM, 
citing that all plans would be returned to the certifying authorities 
in February 2022, and that it appeared to be on track to meet the 
November 2022 deadline, that an additional two-year extension was 
unnecessary. The commenters stated that they understood that once the 
plans were returned to the certifying authorities, EPA's work would not 
be done because those certifying authorities will need to respond to 
EPA's comments and make revisions so that their certification plans are 
approvable, and that EPA will need to be a collaborator in this 
process, and then approve the plans once compliant. However, the 
commenters stated that if EPA treats this work as a priority, then they 
believe the extension EPA has already given itself in the IFR should be 
sufficient time to complete this process, especially given the 
significant progress that the Agency has already claimed had been made 
in the development of revised plans and EPA's subsequent reviews.
    b. EPA response. EPA agrees with the commenters about the 
importance of the 2017 CPA Rule and the beneficial impacts that updated 
certification plans will provide to applicators, workers, the public, 
and the environment, and the Agency is prioritizing its efforts to 
ensure that its reviews and any subsequent revisions are thorough 
before approving the plans. These revisions were intended to reduce 
occupational pesticide exposure and the incidence of related illness 
among certified applicators, noncertified applicators working under 
their direct supervision, and agricultural workers, and to ensure that 
when used according to their labeling, RUPs do not cause unreasonable 
adverse effects to applicators, workers, the public, or the 
environment. Discussions with state regulatory partners and key 
stakeholders over many years, together with EPA's review of incident 
data, led EPA to make these important changes, and implementing these 
changes is a top priority for the Agency.
    While EPA found that the 2017 CPA Rule changes were necessary to 
reduce occupational and bystander exposures and stands by the 
administrative record for that rule, the Agency finds that it is also 
necessary to take into account the economic, social, and environmental 
costs and benefits of the use of any pesticide. Though the impacts of 
potentially delayed benefits are an important consideration on any 
length of time EPA extends the expiration date of existing plans, this 
rulemaking must also take into consideration the potential economic, 
social, and human health impacts associated with the potential for any 
of the state, tribal, or territory programs to expire, and the 
potential impact that may have on business and industries to those who 
rely on their pest control services, including the general public. The 
Agency has discussed these concerns and issues more comprehensively in 
Unit I.E.
    EPA notes that when it issued the NPRM, the Agency did not have 
enough information to assess the costs and impacts of any extension nor 
how much time would be needed to complete all reviews, and therefore, 
the Agency used a qualitative assessment with broad assumptions that 
all certifying authorities would need additional time beyond November 
2022. However, the Agency stated that it intended to conclude all of 
its detailed reviews by February 2022 and to begin approving plans 
shortly after once they were returned to the certifying authorities. 
EPA also committed in the proposal to work expeditiously toward 
concluding this process to limit the potential impacts of delayed 
implementation, with the first plans being approved in March 2022. As 
of July 8, 2022, EPA has approved 7 plans and continues to make 
considerable progress toward approving plans that certifying 
authorities can begin to implement or work toward implementation 
immediately. EPA expects to approve approximately half of the 
certification plans by November 2022.
    Based on the pace that EPA has established in working with 
certifying authorities on final plan revisions and ultimately approving 
certification plans since the promulgation of the IFR extension date, 
EPA estimates that a certification plan approval can take approximately 
a year or more after the certifying authority has received EPA's 
feedback and responded to those comments accordingly. This is largely 
dependent on when comments were returned to the certifying authority, 
the quantity and complexity of the feedback EPA provided to the 
certifying authority, and whether there are any other legislative or 
administrative processes and considerations within the jurisdiction 
that must be addressed before resubmission to EPA for approval. The 
certifying authorities who received EPA comments after October 2021 and 
those with more complex

[[Page 50960]]

issues and administrative requirements are the most at risk of missing 
the IFR deadline of November 2022.
    Because a substantial number of certifying authorities require 
additional time to complete this process, EPA still finds that a 
regulatory deadline extension is needed, though EPA has reconsidered 
the length of time it originally proposed. Based on the concerns 
expressed by farmworker advocacy organizations regarding delayed 
benefits and the countervailing concerns expressed by the certifying 
authorities about their ability to respond to EPA comments and to 
conclude the plan approval process before the IFR deadline, EPA 
believes that a one-year extension instead of the proposed two-year 
extension should provide adequate time to complete the plans that are 
expected to remain in the review and approval process after November 
2022. EPA also discusses this decision in Unit III.B.3. regarding 
presented options to the Agency as an alternative to the proposal. EPA 
remains committed to concluding these reviews as soon as possible and 
keeping the Agency's website updated on its progress as they happen. 
Based on its progress, EPA anticipates remaining plans will be approved 
before the new extension date of November 4, 2023.
    To maintain transparency in the progress of the certification plan 
approvals, EPA has established and maintains information on the current 
status of certification plan approvals on its website (Ref. 2). The 
status table on this web page is updated frequently with information as 
plans are returned back to the certifying authority for additional 
revision, whether revisions were resubmitted to the Agency, and when 
the Agency has approved plans. Additionally, EPA intends to formally 
provide batch Federal Register notices on a quarterly basis identifying 
the certification plans that have been approved and started the 
implementation phase.
2. Proposed Extension Rule Violates and Is Not Exempt From the National 
Environmental Policy Act (NEPA).
    a. Summary of comment. The farmworker advocacy commenters are 
concerned that EPA violated NEPA (42 U.S.C. 4321 et seq.) by failing to 
consider the significant environmental and health impacts of, and 
alternatives to the Proposed Rule. They argue that extending the 
existing plans' expiration date by another two years constitutes a 
major federal action that has foreseeable environmental and public 
health consequences and thus required the Agency to comply with NEPA. 
They argue that the proposed rule is a major federal action that does 
not qualify for a categorical exclusion from NEPA compliance and will 
have a significantly adverse effect on the environment and public 
health. They argue that EPA's failure to consider, let alone disclose, 
these impacts and to take the needed hard look at ``the direct, 
indirect, or cumulative'' impacts of its proposed action is in direct 
violation of NEPA's purpose to ensure both the agency and public are 
aware of the potentially adverse effects of the agency action.
    Moreover, the commenters argue that the two-year delay in 
implementing the 2017 CPA Rule constitutes official policy in that it 
will substantially alter EPA's initial action to ensure that the much-
needed 2017 CPA Rule is implemented in a timely manner to provide 
needed protections for the use of the most dangerous pesticides. They 
state that EPA's own regulations acknowledges that RUPs cause 
unreasonable adverse effects on the environment even when applied in 
accordance with the currently prescribed uses, and that EPA found 
adoption of the 2017 CPA Rule necessary to ensure that RUPs do not 
cause unreasonable adverse effects to applicators, workers, the public, 
or the environment. The commenter also cites the previous 
Administration's attempt to delay the 2017 CPA Rule several times, 
which was stopped in court (Ref. 6). The commenters state that EPA 
cannot now propose such a lengthy delay absent considering the on-the-
ground, adverse impacts to the environment and human health from 
allowing RUPs to be applied absent the protections guaranteed by the 
2017 CPA Rule.
    For these reasons, the commenter argues that EPA needed to take the 
requisite hard look at the foreseeable impacts of delaying this rule 
another two full years, and likewise to consider a reasonable range of 
alternatives. The commenter states that EPA did not even reference 
NEPA, let alone explain how, if at all, the two-year delay of the 
protections guaranteed by the 2017 CPA Rule, does not require NEPA 
analysis. Numerous cases, however, have held that when proposed 
regulations have foreseeable environmental consequences, the agency 
must complete the NEPA process by preparing an Environmental Assessment 
or EIS.
    The commenter states that EPA needs to satisfy the dual 
requirements of NEPA to inform agency decision-makers of the 
environmental effects of proposed major federal actions and to ensure 
that relevant information is made available to the public. Delaying the 
2017 CPA Rule's implementation by two years with no analysis of impacts 
or alternatives violates NEPA.
    b. EPA response. While EPA thanks the commenter for their feedback, 
years of jurisprudence demonstrates that EPA actions under FIFRA are 
not subject to NEPA requirements under the NEPA Functional Equivalence 
Exemption. The Functional Equivalence Exemption first arose in Portland 
Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (``Portland 
Cement'') which involved the promulgation of new source performance 
standards under section 111 of the Clean Air Act (CAA). Plaintiffs 
challenged the Agency's decision to promulgate the standards without 
preparing an environmental impact statement (EIS).
    The Portland Cement court considered several arguments for why NEPA 
should not apply in this case and decided against granting EPA a broad 
exemption from NEPA compliance. Id. at 385. In holding that CAA section 
111, properly construed, was functionally equivalent to a NEPA 
environmental impact statement, the court considered these factors: (1) 
CAA section 111 required that the Administrator accompany a proposed 
standard with a statement of reasons; (2) Said statement set forth the 
environmental considerations, pro and con which have been taken into 
account as required by the CAA; (3) The proposed rule provided notice 
and an opportunity for public comment; and (4) There was an opportunity 
for judicial review. Id. at 384-386. The court acknowledged that the 
rulemaking process provided a ``workable balance'' between some of the 
advantages and disadvantages of full application of NEPA. Id. at 386. 
The court was clear when it stated that ``NEPA must be accorded full 
vitality as to non-environmental agencies.'' Id. at 387.
    The NEPA Functional Equivalence Test was first applied to a FIFRA 
action in Envtl. Defense Fund, Inc. v. EPA, 489 F.2d 1247 (D.C. Cir. 
1973). In this case, several parties petitioned the Court for review of 
EPA's FIFRA order cancelling almost all registrations for use of DDT, 
in part on the ground that the order did not comply with NEPA 
requirements. On the NEPA claim, the court concluded that ``where an 
agency is engaged primarily in an examination of environmental 
questions, where substantive and procedural standards ensure full and 
adequate consideration of environmental issues, then formal compliance 
with NEPA is not necessary, but functional compliance is sufficient.'' 
EDF at 1257.

[[Page 50961]]

    The court found that the rationale developed in Portland Cement 
applied in this case and that ``an exemption from the strict letter of 
the NEPA requirements'' was appropriate. EDF at 1256. The court 
considered that FIFRA requires that pesticides be deregistered if they 
will be injurious to man and his environment and that this standard 
placed ``great emphasis on the quality of man's environment.'' Id. 
Further, the court found that FIFRA's procedural standards provided the 
opportunity for thorough consideration of the environmental issues and 
provided for judicial review. Id. In this case, EPA held hearings, 
solicited public comment and considered a wide scope of environmental 
aspects. Id. The court found that the functional equivalent of a NEPA 
investigation was provided because ``all of the five core NEPA issues 
were carefully considered: the environmental impact of the action, 
possible adverse environmental effects, possible alternatives, the 
relationship between long-and short-term uses and goals, and any 
irreversible commitments of resources--all received attention during 
the hearings and decision-making process.'' Id.
    In State of Wyo. v. Hathaway, 525 F.2d 66 (10th Cir. 1975) 
(``Hathaway''), another FIFRA case involving suspending the 
registration of certain pesticides without preparation of an EIS, the 
Tenth Circuit Court of Appeals based the NEPA exemption on broader 
grounds than those in Portland Cement. ``At the time that NEPA was 
passed the EPA had not been organized. Furthermore, the substance of 
NEPA is such as to itself exempt EPA from the requirement of filing an 
impact statement. Its object is to develop in the other departments of 
the government a consciousness of environmental consequences. The 
impact statement is merely an implement devised by Congress to require 
government agencies to think about and weigh environmental factors 
before acting. Considered in this light, an organization like EPA whose 
regulatory activities are necessarily concerned with environmental 
consequences need not stop in the middle of its proceedings in order to 
issue a separate and distinct impact statement just to be issuing it. 
To so require would decrease environmental protection activity rather 
than increase it. If EPA fails to give ample environmental 
consideration to its orders, its failure in this regard can be 
corrected when the order is judicially reviewed.'' Hathaway at 71-72.
    Finally, in Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986) 
(``Merrell''), the only legal issue was whether EPA was required to 
comply with NEPA before it registered seven herbicides under FIFRA. The 
Ninth Circuit affirmed the district court decision that EPA did not 
need to comply with NEPA. Merrell at 776. It came to that conclusion 
after examining FIFRA's registration procedure, its registration 
standard, and the applicable review procedures. Id. The Ninth Circuit 
focused its analysis on the differences, rather than the similarities, 
of FIFRA and NEPA in reaching its decision.
    The Ninth Circuit looked at the fact that EPA did not revise its 
regulations to require NEPA compliance and that Congress amended FIFRA 
several times in the 1970s and 1980s by adding environmental provisions 
and limited public participation procedures rather than mandating that 
EPA comply with NEPA. Id. at 778-780. The Ninth Circuit recognized that 
the FIFRA amendments reflected a compromise between environmentalists, 
farmers and manufacturers and that ``(t)o apply NEPA to FIFRA's 
registration process would sabotage the delicate machinery that 
Congress designed to register new pesticides.'' Id. at 779.
    Here, it is clear the NEPA Functional Equivalence Doctrine exempts 
EPA's extension of the deadline for the expiration of current 
certification and training plans from NEPA compliance. Applying the 
Functional Equivalence Test factors: (1) The authority for the current 
extension of the deadline comes from FIFRA sections 6(d), 11 and 25, 
each of which set certain standards and procedural requirements for 
promulgation of actions; (2) Both the proposed and current final rule 
extending the deadline have taken into account environmental 
considerations, such as a reduction in incidents causing harm to the 
environment, costs and benefits, and alternative options; (3) The 
proposal accompanying this final rule provided an opportunity for 
public notice and comment and both the proposal and this final rule 
involve consultation with USDA as well as SAP; and finally (4) Upon 
finalization of this rule, there will be opportunity for judicial 
review. Moreover, the Hathaway and Merrell cases further demonstrate 
that EPA's extension of the deadline for expiration of current plans 
should not be subject to NEPA requirements.
    In Merrell, the Ninth Circuit recognized Congress amended FIFRA 
several times in the 1970s and 1980s by adding environmental provisions 
and limited public participation procedures rather than mandating that 
EPA comply with NEPA, further demonstrating Congressional intent that 
EPA need not comply with NEPA in FIFRA registration actions. FIFRA 
section 25, which mandates the authority of the Administrator and sets 
requirements for rulemaking under FIFRA, was also amended several times 
since the establishment of NEPA, most recently in 1996. The fact that 
Congress chose not to amend Section 25 of FIFRA to include compliance 
with NEPA further illustrates Congress's intent that EPA need not 
comply with NEPA in promulgating regulations under FIFRA. Finally, in 
Hathaway, the Tenth Circuit found that the substance of NEPA is such as 
to itself exempt EPA from the requirement of filing an impact statement 
and that an organization like EPA whose regulatory activities are 
necessarily concerned with environmental consequences need not stop in 
the middle of its proceedings in order to issue a separate and distinct 
impact statement just to be issuing it. For these reasons, EPA's 
current rule extending the expiration deadline of current certification 
and training plans is exempt from compliance with NEPA.
3. Alternatives to a Two-Year Extension to the Deadline
    a. Summary of comment. The comments from former regulators stated 
that it was unwise and unnecessary to extend the existing certification 
plans for all certifying entities for two additional years. In their 
view, they felt that nearly six years should ordinarily be more than 
sufficient to complete the revision and approval process, but they 
recognized the extraordinary pressures that the COVID-19 pandemic has 
caused and understood that some further time might be needed for some 
certifying entities to finish their work. However, the commenter was 
not convinced that two years was necessary to complete this work, 
particularly considering EPA's assessment in the NPRM that a 
substantial number of plans were expected to be approved by November 4, 
2022. A major concern expressed was related to whether such an 
extension would reduce the sense of urgency to complete revisions and 
approvals if extended up to two years, as well whether it would reduce 
a sense of urgency to implement those changes. Instead of a two-year 
extension, the commenter offered several alternatives to consider.
    i. Conditional extensions: The commenter recommended that EPA issue 
a final rule that gives itself the authority to grant legitimately 
needed extensions on a case-by-case basis. Under such authority, the 
Agency could carefully examine the status of its review of each 
certifying entity's

[[Page 50962]]

submission and extend the expiration date of the entity's existing 
certification plan only for as long as necessary to allow submission 
and approval of a revised plan that meets the new requirements of EPA's 
2017 CPA Rule amendments to 40 CFR part 171.
    In the comment, they noted that neither the 2017 CPA Rule, the 2021 
IFR, nor the 2022 NPRM contained any provision setting a deadline for 
implementation of new elements of the revised plans, and that according 
to EPA, a revised plan must set out the entity's proposed 
implementation schedule. The commenter understood that, once EPA 
approves a revised plan, a certifying entity will be bound by the 
implementation schedule in its newly approved certification plan to put 
the required changes into practice, and that, as those changes are 
made, they will supersede the existing certification plan.
    The commenter recommended that any final extension rule should 
require a certifying authority to implement new elements of its 
certification plan as soon as possible, and in many cases that would be 
before EPA approves the full plan. Once the Agency has determined that 
a particular part of an entity's revised plan is acceptable, the 
commenter felt that there was no reason why the entity could not begin 
immediately to make it operational. The commenter also recommended that 
EPA require the entity to begin implementation of an element as soon as 
it is accepted by the agency. For example, the commenter believed that 
in most, if not all states, a certifying entity could quickly start to 
enhance the security around the administration of certification exams. 
Entities can also require photo-identification from test takers, and 
they can take other steps to minimize cheating. The quicker new 
elements become effective, the sooner the expected benefits of the 2017 
CPA Rule will be realized.
    ii. Incentivize certifying entities to complete the CPA plan 
approval process. Under the current and proposed rules, certifying 
entities do not have strong incentives to complete the certification 
plan approval process. The commenter suggested that the prospect that 
EPA will not approve a plan and will instead administer a federally run 
certification plan clearly provides some incentive, and that certifying 
entities and the users of RUPs would probably prefer not to have to 
deal with an EPA program. The commenter felt that the EPA program would 
almost certainly be less convenient in many ways, but, if EPA is 
willing to extend existing certification plans as long as the approval 
process continues, certifying entities may feel little worry about the 
threat of an EPA takeover of their CPA programs.
    The commenter also stated that EPA could issue a final rule that 
gives certifying entities more compelling reasons to try to secure EPA 
approval of their plans as quickly as possible. For example, the 
commenter suggested that EPA's final rule could give itself authority 
to withhold or reduce FIFRA programmatic and enforcement grants from an 
entity if, in the agency's view, the entity is not making reasonable 
progress toward completion of the certification plan approval process. 
The commenter suggested that EPA could also consider other ways it 
could incentivize entities to move expeditiously to finish the approval 
process.
    iii. Promulgate a rule that directly implements requirements of the 
2017 CPA Rule. The commenter states that the 2017 CPA Rule establishes 
a series of very important requirements that a certifying entity must 
meet if it wishes to administer a certification plan, and that many of 
these requirements would directly affect the users of RUPs who wish to 
become certified. For example, EPA's 2017 CPA Rule prohibits an entity 
from issuing an applicator certification to anyone younger than 18 
years old and requires that the entity prohibit anyone younger than 18 
from using a RUP under the direct supervision of a certified 
applicator. In addition, the 2017 CPA Rule prohibits the application of 
a RUP by an uncertified individual under the direct supervision of a 
certified applicator unless the individual has received certain basic 
training. The 2017 CPA Rule also requires an entity to establish a 
renewal period of no longer than five years for applicator 
certifications. These requirements, as the commenter notes, are not 
self-executing. To apply to RUP users within its jurisdiction, a 
certifying authority must codify the requirements in statutes or 
regulations.
    To ensure that CPA protections become realized, the commenter 
recommended an option that EPA promulgate a rule that makes them 
binding on RUP users, without depending on the actions of a certifying 
authority. The commenter suggested that EPA could use its authority 
under FIFRA section 3(d)(1)(C)(ii) to issue rules establishing 
additional ``other regulatory restrictions'' on pesticides classified 
for use only by certified applicators. The commenter stated that such a 
rule, at a minimum, should prohibit the use of a RUP product by any 
person who is younger than 18 and prohibit use by an uncertified 
individual who has not received the basic training specified in the 
2017 CPA Rule. The commenter also suggested that EPA could consider a 
rule which provides that no applicator certification shall be valid for 
longer than five years; in effect, such a provision would mandate the 
periodic renewal of applicator certifications.
    iv. Blanket extension of up to one-year. The commenter recognized 
that EPA may determine that recommendations in Unit III.B.3.a.i. 
through iii. should not be implemented in the final rule because the 
recommendations could arguably be deemed to not be a ``logical 
outgrowth'' of the NPRM. If the Agency were to make such a 
determination, the commenter encouraged the Agency to consider 
incorporating these recommendations into any future rulemaking that 
might address further extension of existing certification plans while 
EPA reviews continue. For example, if the Agency decides to grant a 
shorter, across-the-board extension than it had proposed, they 
acknowledge that there may still be a legitimate need for some 
additional case-by-case extensions. If EPA were to decide to conduct 
another rulemaking to grant such extensions, the commenter felt the 
recommendations that were not accepted could be addressed then.
    Instead, the commenter suggested that if EPA decides not to 
finalize a rule to allow case-by-case extension decisions, then the 
Agency should only extend the deadline for existing certification plans 
as long as needed to review and approve a majority of certification 
plans. The commenter recommended that the extension issued by this 
rulemaking should be no longer than a year (i.e., to no later than 
November 4, 2023). The shorter duration of the extension, they felt, 
would create a greater sense of urgency for certifying entities to 
complete their work to prepare acceptable plans.
    The commenter's primary reason for limiting an extension to one 
year is to create a sense of urgency for completing the process and to 
allow EPA, only if necessary, to formulate and promulgate a second 
rule, which would take a more thoughtful and nuanced approach than the 
current rulemaking to granting additional extensions. The commenter 
suggested that if it appears that, at the end of any extension issued 
pursuant to this rulemaking, there are likely to be entities that still 
legitimately need additional time to complete the review and approval 
process, the commenter stated EPA could promulgate another rule 
granting additional extensions. But, rather than an automatic, across-
the-

[[Page 50963]]

board extension for everyone, the commenter recommended that such 
additional rules should provide the Agency with discretion to grant an 
entity an additional extension only for as long as it appears 
reasonably necessary. Thus, the commenter recommended that additional 
extensions should be granted on a case-by-case basis to entities, 
understanding that the length of time may vary from entity to entity. 
The commenter felt that not only could the duration of these extensions 
be tailored to each certifying authority's situation; but also, the 
approval of an extension could require, while the review continues, the 
certifying authority to implement all accepted plan elements as quickly 
as possible (rather than wait for all outstanding issues to be 
resolved). Moreover, the commenter felt that such a rule could give EPA 
the option to reduce the FIFRA enforcement and FIFRA programmatic 
grants awarded to an entity until EPA approves the entity's plan.
    b. EPA response. EPA appreciates the commenter's feedback and 
recommendations for additional options other than EPA's proposal of 
extending the deadline up to but not longer than two years, to November 
2024. At the time the NPRM published, EPA did not have enough 
information to determine an appropriate length of time for an 
additional extension, and as a result, proposed up to but not longer 
than two years. EPA's intent for the proposal was primarily to solicit 
information on an appropriate extension length while signaling EPA's 
desire to not go beyond two years in any extension it would consider. 
Due to the progress that has been made by EPA in concluding its reviews 
and approving revised certification plans and the feedback provided in 
public comments, EPA agrees with the commenter that it is now 
unnecessary to extend the deadline up to November 2024, though the 
Agency has determined that an extension is still needed. As of July 8, 
2022, EPA has approved 7 certification plans and estimates that 
approximately half of all certification plans will be approved prior to 
November 4, 2022 (see Ref. 2 for current status information). While 
considerable progress has been made in the approval process, EPA 
estimates that approximately 30 certification plans are the most at 
risk of not meeting the deadline of November 4, 2022. Considering all 
of the options presented in the recommendations to EPA and the 
substantial number of plan approvals that remain, the Agency has 
determined that the best approach moving forward is to extend the 
deadline one year to November 4, 2023.
    EPA believes that based on the current status of plan approvals and 
feedback received from stakeholders, the best option for moving for is 
an additional one-year extension, rather than the alternative options 
suggested by the commenters, including conditional approvals, 
incentivization, or direct implementation. However, since EPA expects 
to complete its approvals for approximately half of the plans by 
November 2022, EPA agrees that the proposed maximum extension of two 
years is no longer necessary. Based on the pace that EPA has 
established in working with certifying authorities on final plan 
revisions and ultimately approving certification plans since the 
promulgation of the IFR extension date, EPA estimates that a 
certification plan approval can take approximately a year after the 
certifying authority has received EPA's feedback and revised their plan 
accordingly. The Agency is confident that it can approve all remaining 
plans before November 4, 2023. However, the Agency notes that if the 
additional one-year extension turns out not to be sufficient to approve 
all remaining plans, the Agency may, at a later date, consider 
additional rulemaking and other options like conditional approval of 
plans. EPA emphasizes its confidence that all plans will be approved by 
November 2023 and that the Agency is not considering alternative 
options at this time.

IV. New Deadline for Certification Plan Approvals

    Based on the public comments and EPA's assessment of the 
certification plan approval process to date, EPA is extending the 
deadline provided in 40 CFR 171.5(c) for amended certification plans to 
be approved without interruption of the existing certification plans 
for one year, from November 4, 2022, to November 4, 2023. This 
additional time is necessary to assure that the remaining certifying 
authorities who received their plans late in the process have enough 
time to present approvable certification plans, and for EPA to continue 
working closely with those state, territory, and tribal agencies on 
necessary modifications, and ultimately approve their certification 
plans. EPA anticipates that the remaining certification plans pending 
approval will be completed within six to nine months after November 
2022, but the Agency has opted to extend the deadline by one full year 
in the event that unforeseen circumstances or any internal legislative 
or administrative issues need additional time to be resolved. EPA has 
been and will continue to issue notices of certification plan approvals 
periodically to the public in batched notices in the Federal Register 
and on EPA's website (Ref. 2) as they are approved.
    Since approximately half of the certification plans are anticipated 
to be approved by November 2022, the Agency does not expect at this 
time to propose or issue an additional blanket extension of this 
expiration deadline for existing plans beyond November 4, 2023. The 
extension in this final rule should provide the necessary time for all 
remaining certifying authorities to respond to EPA comments and for EPA 
to review and approve those changes. In the unlikely event that a 
certification plan is at risk of not meeting the new deadline, EPA does 
plan to further assess all potential options, including those presented 
in Unit III.B.3., to determine the best approach moving forward.

V. References

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

1. EPA. Pesticides; Certification of Pesticide Applicators; 
Extension to Expiration Date of Certification Plans; Interim Final 
Rule. Federal Register. 86 FR 71831, December 20, 2021 (FRL 9134-02-
OCSPP).
2. EPA. ``Certification Standards of Pesticide Applicators.'' 
website provides latest status of Certified Applicator Plans. 
https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators.
3. EPA. Pesticides; Certification of Pesticide Applicators; Final 
Rule. Federal Register. 82 FR 952, January 4, 2017 (FRL-9956-70).
4. EPA. Economic Analysis of the Final Amendments to 40 CFR part 
171: Certification of Pesticide Applicators [RIN 2070-AJ20]. 
December 6, 2016. Docket ID No. EPA-HQ-OPP-2011-0183-0807.
5. EPA. Pesticides; Certification of Pesticide Applicators; Further 
Extension to Expiration Date of Certification Plans; Proposed Rule. 
Federal Register. 87 FR 6821, February 7, 2022 (FRL-9134.1-01-
OCSPP).
6. Pineros y Campesinos Unidos del Noroeste, et al., v. Pruitt, et 
al., Case No.

[[Page 50964]]

17-CV-03434 (N.D. Cal. filed June 4, 2017); 293 F. Supp. 3d 1062 
(N.D. Cal. 2018).

VI. FIFRA Review Requirements

    Under FIFRA section 25, EPA has submitted a draft of the final rule 
to the Secretary of the Department of Agriculture (USDA), the FIFRA 
Scientific Advisory Panel (SAP), and the appropriate Congressional 
Committees. Since there were no science issues warranting review, the 
FIFRA SAP waived review of the final rule on July 25, 2022. USDA 
completed its review without comment on August 5, 2022.

VII. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act (PRA)

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

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601 et seq. In making this determination, EPA concludes that the 
impact of concern is any significant adverse economic impact on small 
entities, and the Agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities, 
because the rule relieves regulatory burden. The change to the 
expiration date in this rule will reduce potential impacts on all 
entities subject to the CPA regulations if their certifying 
authorities' plans were not approved in time, so there are no 
significant impacts to any small entities by issuing this rule. EPA has 
therefore concluded that this action will relieve regulatory burden for 
all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

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

E. Executive Order 13132: Federalism

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

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

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

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

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

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

    In accordance with Executive Order 12898 (59 FR 7629, February 16, 
1994), EPA finds that this action will not result in disproportionately 
high and adverse human health, environmental, climate-related, or other 
cumulative impacts on disadvantaged communities, as well as the 
accompanying economic challenges of such impacts during this 
administrative action to extend the expiration date. This extension 
will provide EPA and any remaining certifying authorities pending their 
plan approvals an opportunity to finalize the revised certification 
plans, ensuring that the increased protections identified in the 2017 
CPA Rule are realized for all affected populations. EPA has been and 
will continue to work expeditiously with certification authorities to 
review and approve plans. This engagement will ensure the modified 
plans are appropriately protective of certified pesticide applicators 
and those under their direct supervision and will ensure that certified 
applicators are trained to prevent bystander and worker exposures.

K. Congressional Review Act (CRA)

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

List of Subjects in 40 CFR part 171

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

[[Page 50965]]

Pesticides and pests, Restricted use pesticides.

    Dated: August 12, 2022.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

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

PART 171--CERTIFICATION OF PESTICIDE APPLICATORS

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

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


0
2. Amend Sec.  171.5 by revising paragraph (c) to read as follows:


Sec.  171.5  Effective date.

* * * * *
    (c) Extension of an existing plan during EPA review of proposed 
revisions. If by March 4, 2020, a certifying authority has submitted to 
EPA a proposed modification of its certification plan pursuant to 
subpart D of this part, its certification plan approved by EPA before 
March 6, 2017 will remain in effect until EPA has approved or rejected 
the modified plan pursuant to Sec.  171.309(a)(4) or November 4, 2023, 
whichever is earlier, except as provided in paragraph (d) of this 
section and Sec.  171.309(b).
* * * * *
[FR Doc. 2022-17823 Filed 8-18-22; 8:45 am]
BILLING CODE 6560-50-P