[Federal Register Volume 77, Number 129 (Thursday, July 5, 2012)]
[Rules and Regulations]
[Pages 39640-39642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16443]



40 CFR Part 171

[EPA-HQ-OPP-2011-0049; FRL-9334-4]
RIN 2070-AJ77

Synchronizing the Expiration Dates of the Pesticide Applicator 
Certificate With the Underlying State or Tribal Certificate

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: This final rule will reduce burden to restricted use pesticide 
applicators and simplify federal certification expiration dates. 
Restricted use pesticides (RUPs) 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. One way EPA 
may issue a Federal certificate is based on an existing valid 
certificate from a certifying agency, and this final rule will 
synchronize the expiration dates on the Federal certificate with that 
of the certifying agency certificate on which the Federal certificate 
is based.

DATES: This final rule is effective September 4, 2012.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2011-0049, is available either 
electronically through http://www.regulations.gov or in hard copy at 
the OPP Docket in the Environmental Protection Agency Docket Center 
(EPA/DC), located in EPA West, Rm. 3334, 1301 Constitution Ave. NW., 
Washington, DC 20460-0001. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the OPP Docket is (703) 305-5805. Please review 
the visitor instructions and additional information about the docket 
available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Joe Hogue, Field and External Affairs 
Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 308-9072; fax number: (703) 308-7070; 
email address: [email protected].


I. Executive Summary

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 three major industries in 
the North American Industrial Classification System (NAICS) codes 
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 

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

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

II. 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 be 
applied only 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, some 
federal agencies, and 4 tribes are certifying agencies (i.e., they 
implement their EPA-approved certification plans). Applicators 
certified by a State may apply RUPs in that State, and applicators 
certified by a tribe may apply RUPs in 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.

[[Page 39641]]

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.
    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.
    On June 24, 2011 (76 FR 37045) (FRL-8863-7), EPA published a 
proposed rule to 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. The public comment 
period for the proposed rule closed on August 23, 2011. EPA received 
one comment, which was from a tribal government agency and supported 
the proposal. The commenter said that the rule will ``eliminate 
confusion about the different expiration dates and there will be less 

III. Final Rule

    This action will finalize what was proposed in June 2011. EPA is 
amending 40 CFR 171.11(e) to synchronize the expiration dates for the 
EPA Federal certificate with the certifying agency certifications of 
RUP 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. Additionally, this rule supersedes the expiration 
dates described in the Navajo Certification Plan. Further explanation 
of benefits and the underlying reasons for this revision are explained 
in the proposed rule associated with this action (June 24, 2011; 76 FR 

IV. FIFRA Mandated Reviews

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

V. Statutory and Executive Order Reviews

    This action will allow EPA to use the same expiration date for the 
certification it grants, using the expiration date of the valid 
certifying agency certification upon which the EPA certification is 
based. It does not otherwise amend or impose any other requirements. 
The final 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, EPA is not required to 
make special considerations or evaluations under the following 
statutory and Executive Order review requirements.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This is not a ``significant regulatory action'' under Executive 
Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject 
to review under Executive Orders 12866 and 13563 (76 FR 3821, January 
21, 2011).

B. Paperwork Reduction Act (PRA)

    This action does not impose or change any information collection 
burden that requires additional review by the Office of Management and 
Budget (OMB) under the provisions of the PRA (44 U.S.C. 3501 et seq.). 
Burden is defined at 5 CFR 1320.3(b). 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.
    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 do not change the 
covered activities such that additional OMB review or approval is 

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the RFA (5 U.S.C. 601 et seq.), I 
hereby certify that this final rule does not have a significant 
economic impact on a substantial number of small entities. Under the 
RFA, small entities include small businesses, small organizations, and 
small governmental jurisdictions. In making this determination, the 
impact of concern is any significant adverse economic impact on small 
entities because the primary purpose of regulatory flexibility analysis 
is to identify and address regulatory alternatives ``which minimize any 
significant economic impact of the rule on small entities.'' 5 U.S.C. 
603 and 604. Thus, an agency may certify under RFA when the rule 
relieves regulatory burden, or otherwise has no expected economic 
impact on small entities subject to the rule.
    The revision in this final rule will only synchronize the 
certification expiration dates for restricted use applicators and is 
not expected to have any adverse economic impacts on affected entities, 
regardless of their size. It does not otherwise amend or impose any 
other requirements. As such, this final rule will not have any adverse 
economic impact on any entities, large or small.

D. Unfunded Mandates Reform Act (UMRA)

    State, local, and tribal governments are not regulated by this 
final rule, so it is not expected to affect these governments. 
Accordingly, pursuant to Title II of 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.

E. Executive Order 13132: Federalism

    This action will not have ``federalism implications'' as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it is 
not expected to have a substantial direct effect on 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. Thus, Executive Order 13132 does not apply to this action.

[[Page 39642]]

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), because it will 
not have substantial direct effects on Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. This rule only affects some applicators 
of RUPs that are certified under an EPA federal plan by reducing their 
paperwork burden, and it is not expected to impact human health or the 
environment or impose any additional burden or restrictions, or 
otherwise affect Indian tribes. 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 health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks, nor is it an ``economically significant regulatory 
action'' as defined by Executive Order 12866.

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

    This action is not a ``significant regulatory action'' as defined 
in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

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

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

    This action does not have disproportionately high and adverse human 
health or environmental effects on minority or low-income populations 
because it does not affect the level of protection provided to human 
health or the environment. Therefore, this action does not involve 
special consideration of environmental justice-related issues as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

VI. Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., EPA 
will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 171

    Environmental protection, Indian-lands, Intergovernmental 
relations, Pesticides and pests, Reporting and recordkeeping 

    Dated: June 21, 2012.
 James Jones
Acting Assistant Administrator, Office of Chemical Safety and Pollution 

    Therefore, 40 CFR chapter I is amended as follows:


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

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

2. Section 171.11 is amended by revising paragraph (e) to read as 

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. 2012-16443 Filed 7-3-12; 8:45 am]