2011-15883. Synchronizing the Expiration Dates of EPA Pesticide Applicator Certificates With the Underlying State or Tribal Applicator Certificate

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Restricted use pesticides (RUP) are those which may generally cause unreasonable adverse effects on the environment without additional restrictions. RUPs may only be applied by or under the direct supervision of an applicator certified as competent by a certifying agency. A State, tribe, or Federal agency becomes a certifying agency by receiving approval from EPA on their certification plan. In areas not covered by a certifying agency, EPA may establish a Federal certification plan and issue Federal certificates directly. In cases where EPA will issue a Federal certificate based on an existing valid certificate from a certifying agency, this proposed rule would synchronize the expiration dates on the Federal certificate with that of the certificate on which it is based.

DATES:

Comments must be received on or before August 23, 2011.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2011-0049, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is [phone].

Instructions: Direct your comments to docket ID number EPA-HQ-OPP-2011-0049. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at http://www.regulations.gov,, or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is [phone].

FOR FURTHER INFORMATION CONTACT:

Amaris Johnson, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

You may be potentially affected by this action if you are or intend to become a certified applicator under an EPA Federal certification plan. Certified applicators are included in 3 major industries in the North American Industrial Classification System (NAICS) described as crop production, animal production or exterminating, and pest control services. Potentially affected entities may include, but are not limited to:

• Crop Production (NAICS code 111), e.g., individuals that are private certified applicators on farms.
• Animal Production (NAICS code 112), e.g., individuals that are private certified applicators on farms.
• Exterminating and Pest Control Services (NAICS code 561710), e.g., individuals that are commercial certified applicators for hire.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

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

1. Submitting CBI. Do not submit CBI to EPA through regulations.gov or e-mail. 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 submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. What is the agency's authority for taking this action?

This proposed rule is issued pursuant to the authority given the EPA Administrator in sections 11 and 25 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Section 11 of FIFRA, 7 U.S.C. 136i, requires EPA to provide certification plans for applicators of restricted use pesticides. Section 25 of FIFRA, 7 U.S.C. 136w, authorizes EPA to issue regulations to carry out provisions of FIFRA.

III. What action is the agency taking?

EPA is proposing to amend 40 CFR 171.11(e). This action would synchronize the expiration dates for the EPA Federal and certifying agency certifications of restricted use pesticide applicators. This minor revision does not pose any additional requirement or burden, and is expected to have a beneficial impact on affected entities, without impacting human health or the environment. EPA will benefit through the reduction of administration of Federal certification plans.

IV. Background

Under the provisions of FIFRA section 3(d)(1)(C), EPA shall classify a pesticide for restricted use, if, absent additional regulatory restrictions, the Agency determines that it may generally cause unreasonable adverse effects on the environment. RUPs may only be applied by a certified applicator or under the direct supervision of a certified applicator.

Pesticide applicators can be certified either by a certifying agency (a State, Tribe, or non-EPA Federal agency that has an EPA-approved certification plan), or directly by EPA through a Federal certification plan for an area or situation not covered by a certifying agency's plan. Applicators must demonstrate competency to the certifying agency granting the certificate, according to the requirements of that agency's plan. Currently, all 50 States and four tribes are certifying agencies (i.e., they implement their EPA-approved certification plans). Applicators certified by a State or a certifying tribe may apply RUPs in their State or that tribe's Indian country without a Federal certificate. However, under 40 CFR 171.11, in areas where there is no EPA-approved certification plan in effect (currently, most of Indian country), EPA may implement a Federal plan, thereby allowing applicators to use RUPs in the area covered by the plan after receiving Federal certification. Under 40 CFR 171.11(e), a Federal plan may include an option that allows applicators to be issued an EPA Federal certificate after submitting to EPA a certification form along with documentation of a valid certificate from a certifying agency, without further demonstration of competency.

Applicator certificates have expiration dates to help ensure that certified applicators maintain their competency. All certifying agencies implement a recertification program for applicators. These programs require certified applicators to continue to meet the competency requirements either through continuing education or examination.

V. Why is the agency taking this action?

Section 171.11(e) states that an EPA Federal certificate based on a certifying agency's certificate is valid for 2 years for commercial applicators and 3 years for private applicators, or until the expiration date of the original certifying agency certificate, whichever occurs first. The duration of the certification period varies significantly among States, with some currently being shorter and some longer than the Federal certificate maximum of 2 or 3 years. This proposed rule would eliminate the 2 or 3 year maximum for Federal certificates, and allow Federal certification to expire at the same time as the underlying certifying agency certificate. Therefore, applicators who obtain Federal certification using a State certificate that expires in the same time as the current Federal maximum, or shorter time, would not be affected by this proposed rule.

However, the proposed rule would eliminate potential drawbacks to applicators holding a Federal certificate when the underlying State certificate is valid for a longer time period than the maximum 2 or 3 years for the EPA Federal certificate. Under the current regulation, for an applicator certified in such a State to continue a Federal certification, prior to expiration of their Federal certificate they would need to complete a new application form and again provide written evidence of the valid state certification. Federal recertification in this situation becomes an unnecessary, additional paperwork burden for both EPA and the applicator with no additional benefits to human health or the environment since the applicator can reapply for a Federal certificate using the same underlying certificate with no new demonstration of competency.

A potential benefit to Federal recertification occurring more frequently than the State's, is that in checking the current validity of the applicant's underlying State certificate, EPA may discover that the issuing State has modified, suspended, or revoked the certificate, thereby giving EPA the opportunity to deny the recertification application or modify the new Federal certificate. However, EPA expects to learn of modifications, suspensions, or revocations of State certificates independent of the timing of Federal recertification. Given that EPA would make decisions on modifications, suspensions, or revocations of Federal certificates independent of recertification, Federal recertification at a different time from the State recertification would be of no benefit. Federal recertification at the same time as the State recertification, as proposed, would be beneficial in that it would be a recertification based on newly demonstrated competency. In addition, different expiration dates for the Federal certificate and the original certificate may cause unnecessary complication and confusion for applicators and EPA. The added confusion and paperwork lowers the probability of successful compliance by the regulated community.

VI. FIFRA Mandated Reviews

In accordance with FIFRA section 25(a) and (d), EPA submitted a draft of this proposed rule to the Committee on Agriculture in the House of Representatives, the Committee on Agriculture, Nutrition, and Forestry in the United States Senate, the Secretary of Agriculture, and the FIFRA Scientific Advisory Panel (SAP). The SAP and the Secretary of Agriculture waived review of this proposed rule.

VII. Statutory and Executive Order Reviews

This action proposes to allow EPA to use the same expiration date for the certification it grants, using the expiration date of the valid certification upon which the EPA certification is based. It does not otherwise propose to amend or impose any other requirements. The proposed rule will not otherwise involve any significant policy or legal issues, and will not increase existing costs. In fact, synchronizing the expiration dates can reduce burden because some applicators will have to complete less paperwork by having a reduced frequency of Federal recertification.

As such, the Office of Management and Budget (OMB) has determined that this is not a “significant regulatory action” under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Nor does it impose any additional information collection burden that requires review by OMB under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The information collection activities contained in the regulations are already approved under OMB control number 2070-0029 (EPA ICR No. 0155.09) and the changes to the expiration date are not expected to change the covered activities. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for certain EPA regulations in 40 CFR, in addition to appearing in the Federal Register, are also listed in 40 CFR part 9.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed rule does not have a significant adverse economic impact on a substantial number of small entities. The proposed revision that would synchronize the certification expiration dates for restricted use applicators is not expected to have any adverse economic impacts on affected entities, regardless of their size. In general, EPA strives to minimize potential adverse impacts on small entities when developing regulations to achieve the environmental and human health protection goals of the statute and EPA. EPA solicits comments specifically about potential small business impacts.

State, local, and tribal governments are not regulated by or affected by this proposed rule, so it is not expected to affect these governments. Accordingly, pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538), EPA has determined that this action is not subject to the requirements in sections 202 and 205 of UMRA because it does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector in any 1 year. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. For the same reasons, EPA has determined that this proposed rule does not have “federalism implications” as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), because it would 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, as specified in the Order. Thus, Executive Order 13132 does not apply to this proposed rule. Nor does it have “tribal implications” as specified in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 22951, November 9, 2000). Thus, Executive Order 13175 does not apply to this action.

Since this action is not economically significant under Executive Order 12866, it is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), and Executive Order 13211, entitled Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). In addition, EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, which is not the case in this proposed rule.

This action does not involve technical standards that would require the consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

This action does not have an adverse impact on the environmental and health conditions in low-income and minority communities. Therefore, this action does not involve special consideration of environmental justice related issues as specified in Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

List of Subjects in 40 CFR Part 171

• Environmental protection
• Indians—lands
• Intergovernmental relations
• Pesticides and pests
• Reporting and recordkeeping requirements

Dated: June 14, 2011.

Lisa P. Jackson,

Administrator.

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

1. The authority citation for part 171 continues to read as follows:

Authority: 7 U.S.C. 136i and 136w.

2. Amend § 171.11 by revising paragraph (e) to read as follows:

§ 171.11

Federal certification of pesticide applicators in States or on Indian Reservations where there is no approved State or Tribal certification plan in effect.

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(e) Recognition of other certificates. The Administrator may issue a certificate to an individual possessing any other valid Federal, State, or Tribal certificate without further demonstration of competency. The individual shall submit the EPA certification form and written evidence of valid certification to the appropriate EPA Regional Office. The Administrator may deny issuance of such certificate if the standards of competency for each category or subcategory identified in the other Federal, State, or Tribal certificate are not sufficiently comparable to justify waiving further demonstration of competency. The Administrator may revoke, suspend, or modify such certificate if the Federal, State, or Tribal certificate upon which it is based is revoked, suspended, or modified. Unless suspended or revoked, a certificate issued under this paragraph is valid until the expiration date of the Federal, State, or Tribal certificate.

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