[Federal Register Volume 76, Number 122 (Friday, June 24, 2011)]
[Proposed Rules]
[Pages 37045-37048]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15883]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 171
[EPA-HQ-OPP-2011-0049; FRL-8863-7]
RIN 2070-AJ77
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.
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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
[[Page 37046]]
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 (703) 305-5805.
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 (703) 305-5805.
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: (703) 305-9542; fax number: (703) 308-2962; e-
mail address: johnson.amaris@epa.gov.
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
[[Page 37047]]
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
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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 Sec. 171.11 by revising paragraph (e) to read as follows:
Sec. 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.
* * * * *
(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.
* * * * *
[FR Doc. 2011-15883 Filed 6-23-11; 8:45 am]
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