80 FR 51355 - Pesticides; Certification of Pesticide Applicators
ENVIRONMENTAL PROTECTION AGENCY
Federal Register Volume 80, Issue 163 (August 24, 2015)
Page Range
51355-51422
FR Document
2015-19988
EPA is proposing changes to the existing regulation concerning the certification of applicators of restricted use pesticides (RUPs) in response to extensive stakeholder review of the regulation and its implementation since 1974. EPA's proposed changes would ensure the Federal certification program standards adequately protect applicators, the public, and the environment from risks associated with use of RUPs. The proposed changes are intended to improve the competency of certified applicators of RUPs, increase protection for noncertified applicators of RUPs operating under the direct supervision of a certified applicator through enhanced pesticide safety training and standards for supervision of noncertified applicators, and establish a minimum age requirement for certified and noncertified applicators. In keeping with EPA's commitment to work more closely with Tribal governments to strengthen environmental protection in Indian country, certain changes are intended to provide more practical options for establishing certification programs in Indian country.
Federal Register, Volume 80 Issue 163 (Monday, August 24, 2015)
[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51355-51422]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-19988]
[[Page 51355]]
Vol. 80
Monday,
No. 163
August 24, 2015
Part II
Environmental Protection Agency
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40 CFR Part 171
Pesticides; Certification of Pesticide Applicators; Proposed Rule
Federal Register / Vol. 80 , No. 163 / Monday, August 24, 2015 /
Proposed Rules
[[Page 51356]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 171
[EPA-HQ-OPP-2011-0183; FRL-9931-83]
RIN 2070-AJ20
Pesticides; Certification of Pesticide Applicators
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing changes to the existing regulation concerning
the certification of applicators of restricted use pesticides (RUPs) in
response to extensive stakeholder review of the regulation and its
implementation since 1974. EPA's proposed changes would ensure the
Federal certification program standards adequately protect applicators,
the public, and the environment from risks associated with use of RUPs.
The proposed changes are intended to improve the competency of
certified applicators of RUPs, increase protection for noncertified
applicators of RUPs operating under the direct supervision of a
certified applicator through enhanced pesticide safety training and
standards for supervision of noncertified applicators, and establish a
minimum age requirement for certified and noncertified applicators. In
keeping with EPA's commitment to work more closely with Tribal
governments to strengthen environmental protection in Indian country,
certain changes are intended to provide more practical options for
establishing certification programs in Indian country.
DATES: Comments must be received on or before November 23, 2015.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0183, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC) (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001. In addition, please mail a copy of your comments on the
information collection provisions to the Office of Information and
Regulatory Affairs, Office of Management and Budget, ATTN: Desk Officer
for EPA, 725 17th St. NW., Washington, DC 20503.
Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Michelle Arling, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460;
telephone number: (703) 308-5891; 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 apply RUPs.
You may also be potentially affected by this action if you are:
Certified by a State, Tribe, or Federal agency to apply pesticides; a
State, Tribal, or Federal agency who administers a certification
program for pesticide applicators or a pesticide safety educator; or
other person who provides pesticide safety training for pesticide
applicator certification or recertification.
The following list of North American Industrial Classification
System (NAICS) codes is not intended to be exhaustive, but rather
provides a guide to help readers determine whether this rulemaking
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).
Research & Demonstration Pest Control, Crop Advisor (NAICS
code 541710).
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).
Governmental Pest Control Programs (NAICS code 926140).
B. What is the Agency's authority for taking this action?
This action is issued under the authority of 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?
The proposed rule would revise the existing Certification of
Pesticide Applicators (certification) rule at 40 CFR part 171 to
enhance the following: Private applicator competency standards, exam
and training security standards, standards for noncertified applicators
working under the direct supervision of a certified applicator, Tribal
applicator certification, and State, Tribal, and Federal agency
certification plans. The proposed rule would revise the existing
certification rule at 40 CFR part 171 to add: Application method-
specific categories of certification for commercial and private
applicators, predator control categories for commercial and private
applicators, recertification standards and interval, and minimum age
for certified applicators and noncertified applicators working under
direct supervision.
1. Private applicator competency standards. The proposed rule would
clarify the standards of competency a private applicator must meet in
order to be certified. The proposed rule would expand the private
applicator competency standards to include the general standards of
competency for commercial applicators (also known as ``core''
competency), standards generally applicable to pesticide use in
agriculture, and specific related regulations relevant to private
applicators, such as the Worker Protection Standard (WPS) (40 CFR part
170). The proposed rule also would amend the options for determining
private applicator competency by requiring the applicator to complete a
training program or to pass a written exam that covers the specific
competency standards.
2. Application method-specific categories of certification for
commercial and private applicators. The proposed rule would require
that commercial and private applicators who apply pesticides aerially
or by fumigation demonstrate competency to make these types of
applications. The proposal would add categories for aerial
[[Page 51357]]
application, soil fumigation, and non-soil fumigation.
3. Recertification standards and interval. The proposed rule would
require that commercial and private applicators demonstrate continued
competency to use RUPs every 3 years by either passing written exams
for each certification they hold or completing specific training in a
continuing education program administered by the certifying authority.
Commercial applicators would be required to demonstrate continued
competency in the core standards and each category in which they intend
to maintain their certification. Private applicators would be required
to demonstrate continued general competency and competency in each
relevant application method-specific category in which they intend to
maintain their certification.
4. Standards for noncertified applicators working under the direct
supervision. The proposed rule would include several new requirements
to ensure that noncertified applicators are competent to use RUPs under
the supervision of a certified applicator. In order for noncertified
applicators to work under the direct supervision of a certified
applicator they would have to complete specific training as outlined in
the proposed rule, complete training required for handlers under the
WPS, or pass the exam covering general standards of competency for
commercial pesticide applicators (``core exam''). Noncertified
applicators who qualify by satisfying the training requirement under
the proposed rule or the training required for handlers under the WPS
would be required to renew their qualification after a year;
noncertified applicators who qualify by passing the core exam would
need to renew their qualification after 3 years. Noncertified
applicators can renew their qualifications using any of these same
options. All applicators would be required to ensure noncertified
applicators have met these qualifications and commercial applicators
would be required to maintain records of the noncertified applicators'
qualifications. The proposal would require a certified applicator
supervising noncertified applicators to be certified in each category
in which he or she supervises applications, to provide to the
noncertified applicators a copy of the labeling for the RUPs used, and
to ensure that a means for immediate communication between the
supervising applicator and noncertified applicators under his or her
direct supervision is available.
5. Minimum age. The proposed rule would require commercial and
private applicators to be at least 18 years old and noncertified
applicators using RUPs under the direct supervision of certified
applicators to be at least 18 years old.
6. Indian country certification. The proposed rule would offer
three options for certification for applicators in Indian country. A
Tribe may choose to allow persons holding currently valid
certifications issued under one or more specified State or Federal
agency certification plans to apply RUPs within the Tribe's Indian
country, develop its own certification plan for certifying private and
commercial applicators, or take no action, in which case EPA may, in
consultation with the Tribe(s) affected, implement an EPA-administered
certification plan. EPA currently administers a Federal certification
program covering Indian country not otherwise covered by a
certification plan (Ref. 1) as well as a certification program
specifically for Navajo Indian country (Ref. 2).
7. State, Tribal, and Federal agency certification plans. The
proposed rule would update the requirements for submission, approval,
and maintenance of State, Tribal, and Federal agency certification
plans. The proposed rule would delete the section on Government Agency
Plans (GAP) and would codify existing policy on review and approval of
Federal agency certification plans.
D. Why is the Agency taking this action?
The Agency is proposing revisions to the existing certification
regulation at 40 CFR part 171 in order 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, have led EPA
to identify several shortcomings in the current regulation that should
be addressed, including:
Absence of a minimum age for certified pesticide
applicators and noncertified applicators working under their direct
supervision.
Absence of standards or a time period for ensuring that
certified pesticide applicators maintain continued competency.
Lack of certification standards for specific types of
pesticide application (aerial and fumigation) that may pose risks to
applicators, bystanders, and the environment if not performed
correctly.
Vague standards for evaluating the competency of private
applicators to use RUPs.
Incomplete protections for persons applying pesticides
under the direct supervision of a certified applicator.
Inconsistent national program for applicator certification
that hinders applicators' ability to work in different states without
duplicative burden and inhibits EPA's ability to develop certification
and training materials that can be used nationally.
Limited options for establishing applicator certification
programs in Indian country.
Incomplete information incorporated into the regulation
about certification of applicators by Federal agencies.
A detailed discussion about the rationale for the proposed rule and
EPA's regulatory objectives are provided in Units III. and VI. through
XX. The proposed changes would offer targeted improvements that are
reasonably expected to reduce risk to applicators, workers, the public,
and the environment and improve applicator certification programs'
operational efficiencies. EPA expects the proposed changes would:
Improve competency of private and commercial applicators
and noncertified applicators using RUPs under their direct supervision.
Provide more uniform competency among certified
applicators across the nation, thereby assuring the effectiveness of
restricted use registration as a risk management tool.
Protect applicators, workers, the public, and the
environment from unreasonable adverse effects from the use of RUPs.
Ensure that applicators are competent to use high-risk
application methods.
Ensure applicators' ongoing competency to use RUPs.
Protect children by establishing a minimum age for
commercial, private, and noncertified applicators.
Improve human health and environmental protection in
Indian country.
Clarify and streamline requirements for States, Tribes,
and Federal agencies to administer their own certification programs.
E. What are the estimated impacts of this action?
EPA has prepared an economic analysis (EA) of the potential costs
and impacts associated with this rulemaking (Ref. 3). This analysis,
which is available in the docket, is discussed in more detail in Unit
III., and is briefly
[[Page 51358]]
summarized here. The following chart provides a brief outline of the
costs and impacts of this proposed rule.
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Category Description Source
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Monetized Benefits Avoided acute $80.5 million/year after EA Chapter 6.5.
pesticide incidents. adjustment for underreporting
of pesticide incidents.
Qualitative Benefits................... Willingness to pay to avoid EA Chapter 6.4 & 6.6.
acute effects of pesticide
exposure beyond cost of
treatment and loss of
productivity.
Reduced latent effect
of avoided acute pesticide
exposure.
Reduced chronic
effects from lower chronic
pesticide exposure to workers,
handlers, and farmworker
families, including a range of
illnesses such as Non-Hodgkins
lymphoma, prostate cancer,
Parkinson's disease, lung
cancer, chronic bronchitis,
and asthma.
Total Costs............................ $47.2 million/year............. EA Chapter 5.
Costs to Private Applicators........... 490,000 impacted; $19.5 million/ EA Chapter 5 & 5.6.
year; average $40 per
applicator.
Costs to Commercial Applicators........ 414,000 impacted; $27.4 million/ EA Chapter 5 & 5.6.
year; average $66 per
applicator.
Costs to States and Other Jurisdictions 63 impacted; $359,000/year..... EA Chapter 5.
Small Business Impacts................. No significant impact on a EA Chapter 5.7.
substantial number of small
entities.
The rule may affect
over 800,000 small farms that
use pesticides, although about
half are unlikely to apply
restricted use pesticides.
Impact less than 0.1%
of the annual revenues for the
average small entity.
Impact on Jobs......................... The rule will have a negligible EA Chapter 5.6.
effect on jobs and employment.
Most private and
commercial applicators are
self-employed.
Incremental cost per
applicator represents from 0.3
to 0.5 percent of the cost of
a part-time employee.
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II. Background
A. Regulatory Framework
This unit discusses the legal framework within which EPA regulates
the safety of those who apply RUPs as certified applicators and
noncertified applicators working under the direct supervision of
certified applicators, as well as of the general public and the
environment.
1. FIFRA. FIFRA, 7. U.S.C. 136 et seq., was signed into law in 1947
and established a framework for the regulation of pesticide products,
requiring them to be registered by the Federal government before sale
or distribution in commerce. Amended in 1972 by the Federal
Environmental Pesticide Control Act, FIFRA broadened Federal pesticide
regulatory authority in several respects, notably by making it unlawful
for anyone to use any registered product in a manner inconsistent with
its labeling, 7 U.S.C. 136i(a)(2)(G), and limiting the sale and use of
RUPs to certified applicators and those under their direct supervision.
7 U.S.C. 136i(a)(2)(F). The amendments provided civil and criminal
penalties for violations of FIFRA. 7 U.S.C. 136l. The new and revised
provisions augmented EPA's authority to protect humans and the
environment from unreasonable adverse effects of pesticides.
As a general matter, in order to obtain a registration for a
pesticide under FIFRA, an applicant must demonstrate that the pesticide
satisfies the statutory standard for registration, section 3(c)(5) of
FIFRA. 7 U.S.C. 136a(c)(5). That standard requires, among other things,
that the pesticide performs its intended function without causing
``unreasonable adverse effects on the environment.'' The term
``unreasonable adverse effects on the environment'' takes into account
the economic, social, and environmental costs and benefits of the use
of any pesticide and includes any unreasonable risk to man or the
environment. 7 U.S.C. 136(bb). This standard requires a finding that
the risks associated with the use of a pesticide are justified by the
benefits of such use, when the pesticide is used in compliance with the
terms and conditions of registration or in accordance with commonly
recognized practices. See Defenders of Wildlife v. Administrator, EPA,
882 F.2d 1294, 1298-99 (8th Cir. 1989) (describing FIFRA's required
balancing of risks and benefits).
A pesticide product may be unclassified, or it may be classified
for restricted or for general use. Unclassified and general use
pesticides generally have a lower toxicity than RUPs and so pose less
potential to harm humans or the environment. The general public can buy
and use unclassified and general use pesticides without special permits
or restrictions.
Where EPA determines that a pesticide product would not meet these
registration criteria if unclassified or available for general use, but
could meet the registration criteria if applied by experienced,
competent applicators, EPA classifies the pesticide, or particular uses
of the pesticide, for restricted use only by certified applicators. 7
U.S.C. 136a(d)(1). Generally, EPA classifies a pesticide as restricted
use if its toxicity exceeds one or more human health toxicity criteria
or based on other standards established in regulation. EPA may also
classify a pesticide as restricted use if it meets certain criteria for
hazards to non-target organisms or ecosystems, or if EPA determines
that a product (or class of products) may cause unreasonable adverse
effect on human health and/or the environment without such restriction.
The restricted use classification designation must be prominently
placed on the top of the front panel of the pesticide product labeling.
The risks associated with products classified as RUP require
additional controls to ensure that when used they do not cause
unreasonable adverse effects on human health or the environment.
However, RUPs can be used safely when labeling instructions are
followed. These products may only be applied by certified applicators
or persons working under their direct supervision who have demonstrated
competency in the safe application of pesticides, including the ability
to read and understand the complex labeling requirements. FIFRA
requires EPA to develop standards for certification of applicators (7
U.S.C. 136i(a)(1)) and allows States to certify applicators under a
certification plan submitted to and approved by EPA. 7 U.S.C.
136i(a)(2).
Provisions limiting EPA's authority with respect to applicator
certification
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include 7 U.S.C. 136i(a)(1), (c), and (d); 7 U.S.C. 136w-5; and 7
U.S.C. 136(2)(e)(4). Section 136i(a)(1) of FIFRA prohibits EPA from
requiring private applicators to take an exam to establish competency
in the use of pesticides under an EPA certification program, or from
requiring States to impose an exam requirement as part of a State plan
for certification of applicators.
Section 136i(c) of FIFRA instructs EPA to make instructional
materials on Integrated Pest Management (IPM) available to individuals,
but it prohibits EPA from establishing requirements for instruction or
competency determination on IPM. EPA makes IPM instructional materials
available to individual users through the National Pesticide Applicator
Certification Core Manual, which is used directly or as a model by many
States. Additionally, EPA has developed and implemented a variety of
programs in other areas of the pesticide program to inform pesticide
applicators about the principles and benefits of IPM. These include the
EPA's IPM in Schools Program, the Pesticide Environmental Stewardship
Program (PESP), and the Strategic Agricultural Initiative (SAI) Grant
Program, as well as several other efforts. The Agency will continue to
place a high priority on initiatives and programs that promote IPM
practices. For additional information about the range of programs and
activities, visit the Office of Pesticide Programs PestWise Web page on
the EPA Web site at: http://www.epa.gov/pesp/about/index.html.
Section 136i(d) of FIFRA prohibits EPA from requiring private
applicators to keep records or file reports in connection with
certification requirements. However, private applicators must keep
records of RUP applications containing information substantially
similar to that which EPA requires commercial applicators to maintain
pursuant to USDA regulations at 7 CFR 110.3.
Section 136w-5 of FIFRA prohibits EPA from establishing training
requirements for maintenance applicators (certain applicators of non-
agricultural, non-RUPs) or service technicians.
FIFRA section 2(e)(4)'s definition of ``under the direct
supervision of a certified applicator'' allows noncertified applicators
to apply RUPs under the direct supervision of a certified applicator
even though the certified applicator may not be physically present at
the time and place the pesticide is applied. EPA can, on a product-by-
product basis and through the pesticide's labeling, require application
of an RUP only by a certified applicator.
2. Pesticide registration. In order to protect human health and the
environment from unreasonable adverse effects that might be caused by
pesticides, EPA has developed and implemented a rigorous process for
registering and re-evaluating pesticides. The registration process
begins when a manufacturer submits an application to register a
pesticide. The application must contain required test data, including
information on the pesticide's chemistry, environmental fate, toxicity
to humans and wildlife, and potential for human exposure. The Agency
also requires a copy of the proposed labeling, including directions for
use, and appropriate warnings.
Once an application for a new pesticide product is received, EPA
conducts an evaluation, which includes a detailed review of scientific
data to determine the potential impact on human health and the
environment. The Agency considers the risk assessments and results of
any peer review, and evaluates potential risk management measures that
could mitigate risks above EPA's level of concern. Risk management
measures could include, among other things, classifying the pesticide
as restricted use, limitations on the use of the pesticide or requiring
the use of engineering controls.
In the decision-making process, EPA evaluates the proposed use(s)
of the pesticide to determine whether it would cause adverse effects on
human health, non-target species, and the environment. FIFRA requires
that EPA balance the benefits of using a pesticide against the risks
from that use.
If the application for registration does not contain evidence
sufficient for EPA to determine that the pesticide meets the FIFRA
registration criteria, EPA communicates to the applicant the need for
more or better refined data, labeling modifications, or additional use
restrictions. Once the applicant has demonstrated that a proposed
product meets the FIFRA registration criteria and--if the use would
result in residues of the pesticide on food or feed--a tolerance or
exemption from the requirement of a tolerance under the Federal Food,
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et seq., is available,
EPA approves the registration subject to any risk mitigation measures
necessary to achieve that approval. EPA devotes significant resources
to the regulation of pesticides to ensure that each pesticide product
meets the FIFRA requirement that pesticides not cause unreasonable
adverse effects to the public and the environment.
Part of EPA's pesticide regulation and evaluation process is
determining whether a pesticide should be classified as for restricted
use. As discussed in Unit II.A., EPA classifies products as RUPs when
they would cause unreasonable adverse effects on the environment, the
applicator, or the public when used according to the labeling
directions and without additional restrictions. 7 U.S.C. 136a(d)(1)(C).
EPA maintains a list of active ingredients with uses that have been
classified as restricted use at 40 CFR 152.175. In addition, EPA
periodically publishes an ``RUP Report'' that lists RUP products'
registration number, product name, status, registration status, company
name, and active ingredients (http://www.epa.gov/opprd001/rup/). EPA
has classified about 900 pesticide products as RUPs, which is about 5%
of all registered pesticide products. EPA does not have data on the
relative usage of RUPs versus general use or unclassified pesticides.
When EPA approves a pesticide, the labeling reflects the risk
mitigation measures required by EPA. The potential risk mitigation
measures include requiring certain engineering controls, such as use of
closed systems for mixing pesticides and loading them into application
equipment to reduce potential exposure to those who handle pesticides;
establishing conditions on the use of the pesticide by specifying
certain use sites, maximum application rate or maximum number of
applications; or limiting the use of the product to certified
applicators (i.e., prohibit application of an RUP by a noncertified
applicator working under the direct supervision of a certified
applicator) to protect users, the public, and the environment against
risks associated with misapplication by unqualified or incompetent
applicators. Since users must comply with the directions for use and
use restrictions on a product's labeling, EPA uses the labeling to
establish and convey mandatory requirements for how the pesticide must
be used to protect the applicator, the public, and the environment from
pesticide exposure.
3. Pesticide Reregistration and Registration Review. Under FIFRA,
EPA is required to review periodically the registration of pesticides
currently registered in the United States. The 1988 FIFRA amendments
required EPA to establish a pesticide reregistration program.
Reregistration was a one-time comprehensive review of the human health
and environmental effects of pesticides first registered before
November 1, 1984 to make decisions
[[Page 51360]]
about these pesticides' future use. The Food Quality Protection Act of
1996 (FQPA) amendments to FIFRA require that EPA establish, through
rule making, an ongoing ``registration review'' process of all
pesticides at least every 15 years. The final rule establishing the
registration review program was signed in August 2006. The purpose of
both re-evaluation programs is to review all pesticides registered in
the United States to ensure that they continue to meet current safety
standards based on up-to-date scientific approaches and relevant data.
Pesticides reviewed under the reregistration program that met
current scientific and safety standards were declared ``eligible'' for
reregistration. The results of EPA's reviews are summarized in
Reregistration Eligibility Decision (RED) documents. The last RED was
completed in 2008. Often before a pesticide could be determined
``eligible,'' certain risk reduction measures had to be put in place.
For a number of pesticides, measures intended to reduce exposure to
certified applicators and pesticide handlers were needed and are
reflected on pesticide labeling. To address occupational risk concerns,
REDs include mitigation measures such as: Voluntary cancellation of the
product or specific use(s); limiting the amount, frequency or timing of
applications; imposing other application restrictions; classifying a
product or specific use(s) as for restricted use; requiring the use of
specific personal protective equipment (PPE); and establishing specific
restricted entry intervals; and improving use directions.
Under the registration review program, EPA will review each
registered pesticide at least every 15 years to determine whether it
continues to meet the FIFRA standard for registration. Pesticides
registered before 1984 were reevaluated initially under the
reregistration program. These pesticides also are subject to
registration review.
Rigorous ongoing education and enforcement are needed to ensure
that these mitigation measures are appropriately implemented in the
field. The framework provided by the pesticide applicator certification
regulation and associated training programs are critical for ensuring
that the improvements brought about by reregistration and registration
review are realized in the field. For example, the requirement for
applicators to demonstrate continued competency, or to renew their
certifications periodically, is one way to educate applicators about
changes in product labeling to ensure they continue to use RUPs in a
manner that will not harm themselves, the public, or the environment.
The changes being proposed are designed to enhance the effectiveness of
the existing structure.
In summary, EPA's pesticide reregistration and registration reviews
assess the specific risks associated with particular chemicals and
ensure that the public and environment do not suffer unreasonable
adverse effects from the risks. EPA implements the risk reduction and
mitigation measures that result from the pesticide reregistration and
registration review programs through individual pesticide product
labeling.
4. Related rulemaking. EPA also issued proposed amendments to the
WPS (Ref. 4). Since 40 CFR parts 170 and 171, along with other
components of the pesticide program, work together to reduce and
prevent unreasonable adverse effects from pesticides, EPA's experience
with the proposed amendments to 40 CFR part 170 significantly informs
its effort to amend the current certification rule at 40 CFR part 171.
B. Overview of Certified Applicator Information
1. Existing Certification of Pesticide Applicators Rule. The
certification regulation is intended to ensure that persons using or
supervising the use of RUPs are competent to use these products without
causing unreasonable adverse effects to human health or the environment
and to provide a mechanism by which States, Tribes, and Federal
agencies can administer their own programs to certify applicators of
RUPs as competent. FIFRA distinguishes three categories of persons who
might apply RUPs:
Commercial applicators. ``Commercial
applicator'' is defined at 7 U.S.C. 136(e)(3). This group consists
primarily of those who apply RUPs for hire, including applicators who
perform agricultural pest control, structural pest control, lawn and
turf care, and public health pest control.
Private applicators. ``Private applicator'' is
defined at 7 U.S.C. 136(e)(2). This group consists primarily of farmers
or agricultural growers who apply RUPs to their own land to produce an
agricultural commodity.
Noncertified applicators. A noncertified
applicator is a person who uses RUPs under the direct supervision of a
certified applicator. The phrase ``under the direct supervision of a
certified applicator'' is defined at 7 U.S.C. 136(e)(4).
The current certification regulation establishes requirements for
submission and approval of State plans for the certification of
applicators. Consistent with the provisions of FIFRA section 11(a)(2)
and the State plan requirements in the current rule, programs for the
certification of applicators of RUPs are currently implemented by each
of the fifty States. The certification programs are conducted by the
States and Tribes in accordance with their State or Tribal
certification plans, which are approved by the EPA Administrator and
filed with EPA after approval. (Ref. 5) In some cases, certification
programs are also carried out by other Federal agencies under approved
Federal agency plans or by EPA under EPA-administered plans. In
addition to the 50 State-implemented plans, EPA has approved plans for
3 territories, 4 Federal agencies, and 4 Tribes. EPA also directly
administers a national certification plan for Indian country (Ref. 1)
and has implemented a specific certification plan for the Navajo Nation
(Ref. 2). As used in FIFRA, the term State means a State, the District
of Columbia, the Commonwealth of Puerto Rico, The Virgin Islands, Guam,
the Trust Territory of the Pacific Islands, and American Samoa; the
term State will have the same meaning in this proposed rulemaking.
The current certification regulation establishes competency
standards for persons seeking to become certified as private or
commercial applicators. For a person to become certified as a private
applicator, he or she must either pass an exam covering a general set
of information related to pesticide application and safety or qualify
through a non-exam option administered by the certifying authority. For
a person to become certified as a commercial applicator, he or she must
pass at least two exams--one covering the general or ``core''
competencies related to general pesticide application and environmental
safety and an exam related to each specific category in which he or she
intends to apply pesticides. The current certification rule lists 10
categories of certification for commercial applicators: Agricultural
pest control--plant; agricultural pest control--animal; forest pest
control; ornamental and turf pest control; seed treatment; aquatic pest
control; right-of-way pest control; industrial, institutional,
structural and health related pest control; public health pest control;
regulatory pest control; and demonstration and research pest control.
40 CFR 171.3(b). (Note: EPA and other certifying authorities may
sometimes refer to 11 categories of
[[Page 51361]]
certification if the two subcategories under agricultural pest control
are counted as individual categories.) Although EPA only requires
certification of applicators who use RUPs, most States require all
commercial ``for hire'' applicators to be certified, regardless of
whether they plan to use RUPs. Once the applicator completes the
necessary requirements, the certifying authority issues to the
applicator a certification valid for a set period of time, ranging from
1-6 years depending on the State, Tribe, or Federal agency that
provides the certification.
The current regulation requires States to implement a
recertification process to ensure that applicators maintain ongoing
competency to use pesticides safely and properly. 40 CFR 171.8(a)(2).
However, the current rule does not have a requirement for the
frequency, content, or standards for applicator recertification.
States, Tribes and Federal agencies have established varying
requirements for applicators to be recertified, such as attending a
full-day workshop, earning a specific number of ``continuing education
units,'' or passing written exams. Applicators who do not complete the
recertification requirements in the established period no longer hold a
valid certification and cannot use RUPs after their certification
expires.
Under the current certification regulation, noncertified
applicators, i.e., persons using RUPs under the direct supervision of
certified applicators, must receive general instructions and be able to
contact their supervisor in the event of an emergency. The rule does
not have specific training requirements, a limit on the distance
between the supervisor and noncertified applicator, or a restriction on
the number of noncertified applicators that one certified applicator
can supervise.
An overview of the development of the certification rule and the
process leading to this proposal appear in Unit IV.
2. Applicator demographics. The profile of certified applicators of
RUPs has shifted over time. The U.S. is moving away from small
agricultural production and more individuals seek professional pest
control to address issues in their home or workplace. In 1987, around
1.2 million applicators held a certification, almost 80% of which were
private applicators, and 20% of which were commercial applicators (Ref.
6). In 2013, the total number of certified applicators decreased to
just over 900,000 (Ref. 5). The respective proportions of private and
commercial applicators changed more significantly--private applicators
account only for 53% of the total certified applicator population and
commercial applicators now make up about 47%.
Applicators work in a diverse array of situations including
agricultural production, residential pest control, mosquito spraying
for public health protection, treating weeds along roadside and
railroad rights of way, fumigating rail cars and buildings, maintaining
lawns and other ornamental plantings, and controlling weeds and algae
in waterways through pesticide application. Specific information on
applicators across all industries or in each certification category is
difficult to find and summarize. However, the broad trends indicate a
decrease in agricultural applicators and an increase in urban and
public health pest control.
Since publication of the original rule, pesticide usage and
reliance on hired pest control applicators have increased. The U.S.
Bureau of Labor Statistics expects that ``employment of pest control
workers [will] grow by 15 percent between 2008 and 2018, . . .
[because] more people are expected to use pest control services as
environmental and health concerns and improvements in the standard of
living convince more people to hire professionals, rather than attempt
pest control work themselves'' (Ref. 7).
3. Incident data and general information.
i. Incident Databases. Incident monitoring programs have informed
EPA's understanding of common types of pesticide exposures and their
outcomes. In 2007, EPA released a report detailing the coverage of all
pesticide incident reporting databases considered by EPA (Ref. 8). When
developing the proposed changes to the certification rule, EPA
consulted three major databases for information on pesticide incidents
involving applicator errors while using RUPs.
To identify deaths and high severity incidents associated with use
of RUPs, EPA consulted its Incident Data System (IDS). IDS is
maintained by EPA's Office of Pesticide Programs (OPP) and incorporates
data submitted by registrants under FIFRA section 6(a)(2), as well as
other incidents reported directly to EPA. FIFRA allows the aggregation
of individual events in some circumstances, meaning an incident with
negative impacts to a number of individuals (persons, livestock, birds,
pollinators) and/or the environment could be reported as a single
incident. In addition to incidents involving human health, IDS also
collects information on claims of adverse effects from pesticides
involving plants and animals (wild and domestic), as well as detections
of pesticide in water. EPA uses this information to identify incidents
involving the use of RUPs that have ecological effects. While IDS
reports may be broad in scope, the system does not consistently capture
detailed information about incident events, such as occupational
exposure circumstances or medical outcome, and the reports are not
necessarily verified or investigated.
The second database, the Sentinel Event Notification System for
Occupational Risk (SENSOR), is maintained by the Centers for Disease
Control and Prevention's National Institute for Occupational Safety and
Health (NIOSH). SENSOR covers all occupational injuries and has a
specific component for pesticides (SENSOR-Pesticides). EPA uses SENSOR-
Pesticides to monitor trends in occupational health related to acute
exposures to pesticides, to identify emerging pesticide problems, and
to build and maintain State surveillance capacity. SENSOR-Pesticides is
a State-based surveillance system with 12 State participants. The
program collects most poisoning incident cases from:
U.S. Department of Labor (DOL) workers' compensation
claims when reported by physicians.
State Departments of Agriculture.
Poison control centers.
A State SENSOR-Pesticides contact specialist follows up with
workers and obtains medical records to verify symptoms, circumstances
surrounding the exposure, severity, and outcome. SENSOR-Pesticides
captures incidents only when the affected person has two or more
symptoms. Using a standardized protocol and case definitions, SENSOR-
Pesticides coordinators enter the incident interview description
provided by the worker, medical report, and physician into the SENSOR
data system. SENSOR-Pesticides has a severity index, based partly on
poison control center criteria, to assign illness severity in a
standardized fashion. SENSOR-Pesticides provides the most comprehensive
information on occupational pesticide exposure, but its coverage is not
nationwide and a majority of the data come from California and
Washington State. Since 2009, SENSOR has been including information
about how the incidents may have been prevented.
The third database, the American Association of Poison Control
Centers maintains the National Poison Data System (NPDS), formerly the
Toxic
[[Page 51362]]
Effects Surveillance System (TESS). NPDS is a computerized information
system with geographically-specific and near real-time reporting. While
the main mission of Poison Control Centers (PCC) is helping callers
respond to emergencies, not collecting specific information about
incidents, NPDS data help identify emerging problems in chemical
product safety. Hotlines at 61 PCCs nationwide are open 24 hours every
day of the year. There are many bilingual PCCs in predominantly Spanish
speaking areas. Hotlines are staffed by toxicology specialists to
provide poisoning information and clinical care recommendations to
callers with a focus on triage to give patients appropriate care. Using
computer assisted data entry, standardized protocols, and strict data
entry criteria, local callers report incidents that are retained
locally and updated in summary form to the national database. Since
2000, nearly all calls in the system are submitted in a computer-
assisted interview format by the 61 certified PCCs, adhering to
clinical criteria designed to provide a consistent approach to
evaluating and managing pesticide and drug related adverse incidents.
Information calls are tallied separately and not counted as incidents.
The NPDS system covers nearly the entire United States and its
territories, but the system is clinically oriented and not designed to
collect detailed occupational incident data. Additionally, NPDS does
not capture EPA pesticide registration numbers, a critical element for
identifying the specific product and whether it was an RUP.
Three studies showing undercounting of poison control data indicate
the magnitude of the problem. The studies each focus on a specific
region and compare cases reported to poison control with those
poisonings for which there are hospital records. In all three cases,
the studies indicate a substantial underreporting of poisoning
incidents to poison control, especially related to pesticides (Refs. 9,
10 and 11). Underreporting of pesticide incidents is a challenge for
all available data sources for a number of reasons.
Symptoms of acute pesticide poisoning are often vague and mimic
symptoms with other causes, leading to incorrect diagnoses, and chronic
effects are difficult to identify and track. The demographics of the
populations that typically work with or around pesticides also
contribute to underreporting of incidents. There may not be enough
information to determine if the adverse effects noted were in fact the
result of pesticide exposure and not another contributing factor
because many incident reports lack useful information such as the exact
product that was the source of the exposure, the amount of pesticide
involved, or the circumstances of the exposure. A more complete
discussion of the underreporting and its effect on pesticide incident
reporting is located in the Economic Analysis for this proposal (Ref.
3).
The data available do provide a snapshot of the illnesses faced by
those applying RUPs and others impacted by the application and the
likely avenues of exposure. Review of these data sources shows that
certified applicators continue to face avoidable occupational pesticide
exposure and in some instances cause exposures to others. EPA notes
that RUPs can be used safely when labeling directions for use are
carefully followed. Deaths and illnesses from applicator errors
involving RUPs occur for a variety of reasons, including misuse of
pesticides in or around homes, faulty application and/or personal
protective equipment, failure to confirm a living space is empty before
fumigating, or unknowing persons accidentally ingesting an RUP that was
improperly put in a beverage container. Common reasons for ecological
incidents include failure to follow labeling directions, inattention to
weather patterns at the time of application, and faulty application
equipment (Ref. 12). Generally, reports on the data note that many of
the incidents could be prevented with strengthened requirements for
initial and ongoing applicator competency (certification and
recertification), improved training for noncertified applicators
working under the direction of a certified applicator, and knowledge of
proper techniques for using specific methods to apply pesticides (Ref.
12).
ii. Agricultural Health Study. The National Institutes of Health
(National Cancer Institute and National Institute of Environmental
Health Sciences) and EPA have sponsored the Agricultural Health Study
since 1994. This long-term, prospective epidemiological study collects
information from farmers who are certified applicators in Iowa and
North Carolina to learn about the effects of environmental,
occupational, dietary, and genetic factors on the health of the
farmers, pesticide applicators, and their families. The study design
involves gathering information over many years about the pesticide
applicator and his or her family's health, occupational practices,
lifestyle, and diet through mailed questionnaires and individual
interviews (Ref. 1).
The Agricultural Health Study includes approximately 52,000 private
applicators, 32,000 spouses of private applicators, and 5,000
commercial applicators. All applicators participating in the study are
certified (or licensed) in every State in which they work and in each
category in which they make applications. All participants were healthy
before enrolling in the study, allowing the researchers to consider a
number of variables such as pesticide use, lifestyle, and diet.
The Agricultural Health Study is observational and considers a
variety of factors including, but not limited to, pesticide use and
exposure. Therefore, establishing a link between a specific health
outcome and pesticide exposure can be difficult. However, it is
possible to demonstrate statistical associations between a certain
activity and an outcome. Using the information collected, the
investigators working on the Agricultural Health Study have produced a
number of articles relevant to the health and safety of pesticide
applicators. See http://aghealth.nih.gov/news/publications.html. For
instance, publications include information on characteristics of
farmers who experience high pesticide exposure events and potential
links between pesticide use and chronic health effects.
EPA considers the information from the Agricultural Health Study
when appropriate, such as during a chemical reassessment. The data also
provide information on applicator practices that lead to exposures,
some of which EPA plans to address through the changes proposed in this
rulemaking.
III. Rationale and Objectives for This Action
A. Reasons for the Proposed Action
Broadly defined, a pesticide is any agent used to kill or control
undesired insects, weeds, rodents, fungi, bacteria, or other organisms.
Chemical pest control plays a major role in modern agriculture and has
contributed to dramatic increases in crop yields for most field, fruit
and vegetable crops. Additionally, pesticides ensure that the public is
protected from health risks, such as West Nile Virus, Lyme disease, and
the plague, and help manage invasive plants and organisms that pose
significant harm to the environment. Pesticides are also used to ensure
that housing and workplaces are free of pests, and to control microbial
agents in health care settings. EPA's obligation under FIFRA is to
register only those pesticides that do not cause unreasonable adverse
effects to human health or the environment. EPA is
[[Page 51363]]
committed to protecting against these potential harms and to ensure
access to a safe and adequate food supply in the United States.
FIFRA requires EPA to consider the benefits of pesticides as well
as the potential risks. This consideration does not override EPA's
responsibility to protect human health and the environment; rather,
where a pesticide's use provides benefits, EPA must ensure that the
product can be used without posing unreasonable adverse effects to
human health or the environment. Some pesticides may pose unreasonable
adverse effects to human health or the environment without strict
adherence to precise and often complex mitigation measures specified on
the pesticide labeling--EPA classifies these products as restricted
use. To ensure that the necessary measures are followed, EPA requires
an additional level of precaution--these pesticides may be applied only
by applicators who are certified or by noncertified applicators working
under the direct supervision of a certified applicator. Certification
serves to ensure competency of applicators to use these restricted
products, and therefore to protect the applicator, persons working
under the direct supervision of the applicator, the general public, and
the environment through judicious and appropriate use of RUPs.
Applicator certification enables the registration of pesticides
that otherwise could not be registered, allowing the use of RUPs for
pest management in agricultural production, building and other
structural pest management, turf and landscape management, forestry,
public health, aquatic systems, food processing, stored grain, and
other areas.
The certification regulation, which sets standards for applicators
using RUPs, is 40 years old and has not been updated significantly
since it was finalized. In conjunction with various non-regulatory
programs, the certification regulation requirements are intended to
reduce unreasonable adverse effects from application of RUPs to
applicators, bystanders, the public, and the environment. The
certification regulation provisions are meant to:
Ensure that certified applicators are and remain competent
to use RUPs without unreasonable adverse effects.
Ensure that noncertified applicators receive adequate
information and supervision to protect themselves and to ensure they
use RUPs without posing unreasonable adverse effects.
Set standards for States, Tribes, territories, and Federal
agencies to administer their own certification programs.
Protect human health and the environment from risks
associated with use of RUPs.
Ensure the continued availability of RUPs used for public
health and pest control purposes.
Within these five areas, EPA evaluated the costs and benefits of
alternative requirements and is proposing a set of requirements that,
in combination, is expected to achieve substantial benefits at minimum
cost.
The certification regulation must be updated to ensure that the
certification process adequately prepares and ensures the continued
competency of applicators to use RUPs. Several factors prompted EPA to
propose changes to the current rule: The changing nature of pesticide
labeling, risks associated with specific methods for applying
pesticides, adverse human health and ecological incidents, inadequate
protections for noncertified applicators of RUPs, an uneven regulatory
landscape, and outdated and obsolete provisions in the rule related to
the administration of certification programs by Tribes and Federal
agencies.
1. The changing nature of pesticide labeling. As discussed above,
EPA uses a rigorous process to register pesticides. EPA has also
implemented the pesticide reregistration program and the registration
review program to review registered pesticides periodically to ensure
they continue to meet the necessary standard. As a result of these
ongoing evaluations, labeling for pesticides changes with some
frequency to incorporate risk mitigation measures that allow the
pesticide to continue to be used safely. Changes address, among other
topics, pesticide product formulation and packaging, application
methods, types of personal protective equipment, and environmental
concerns, such as the need to protect pollinators. In addition, EPA
conducts risk assessments that result in more detailed risk mitigation
measures, which can make the pesticide labeling more complex. For
pesticides classified as RUPs, it is essential that applicators stay
abreast of the changes to the labeling and understand the risk
mitigation measures, because if the products are not used according to
their labeling, they may cause harm to the applicator, the public or
the environment. EPA's registration decisions assume that the
applicator follows all labeling instructions; when the labeling is
followed, RUPs can be used safely. The current regulation requires that
applicators demonstrate continued competency to use RUPs, but does not
specify the length of the certification period or standards for
recertification. The more frequently applicators receive training, the
more likely they are retain the substance of the training and apply it
on the job. Studies show that information retained from training
sessions declines significantly within a year (Refs. 14 and 15). EPA
must ensure that certified applicators demonstrate and maintain an
understanding of how to use RUPs in a manner that will not cause
unreasonable adverse effects so that EPA can continue to register RUPs.
Therefore, EPA is proposing changes to the regulation that would
establish a certification period and standards for applicator
recertification.
2. Risks associated with specific application methods. RUPs are
applied using a variety of application methods. Some methods of
application may pose a higher risk to the applicator, bystander, and
the environment if not performed correctly. Spray applications,
particularly spraying pesticides from an aircraft, may result in off-
target drift of the pesticide. For example, a recent study estimates
that 37% to 68% of acute pesticide-related illnesses in agricultural
workers are caused by spray drift, including both ground-based and
aerial spray applications (Ref. 16). EPA also recognized risks
associated with performing soil fumigation in the 2008 REDs for soil
fumigants (Ref. 17). As a result of these risks, EPA required
additional training for soil fumigant applicators through labeling
amendments on top of the existing requirement for the applicator to be
certified. The decision also acknowledged that a specific certification
category requiring demonstration of competency by passing a written
exam related to applying fumigants to soil would be an acceptable
alternative risk mitigation measure. EPA must ensure that applicators
are competent to perform specific types of applications that may pose
higher risks if not performed correctly. Therefore, EPA is proposing
changes to the regulation to require applicators to demonstrate
competency to apply RUPs using specific application methods.
3. Adverse human health and ecological incidents. Much has changed
over the last 40 years related to use of RUPs--pesticide product
formulation and labeling, application methods, types of personal
protective equipment, and environmental concerns, such as the need to
protect pollinators. The regulation needs to be updated to address
these and other changes affecting applicators of RUPs. In
[[Page 51364]]
addition to the hundreds of potentially avoidable acute health
incidents related to RUP exposure reported each year (Ref. 5), several
major incidents have occurred that demonstrate that a single or limited
misapplication of an RUP can have widespread and serious effects.
In one of the most significant cases from the mid-1990s, there was
widespread misuse of the RUP methyl parathion, an insecticide used
primarily on cotton and other outdoor agricultural crops, to control
pests indoors. The improper use of this product by a limited number of
applicators across several States led to the widespread contamination
of hundreds of homes, significant pesticide exposures and human health
effects for hundreds of homeowners and children, and a clean-up cost of
millions of dollars (Refs. 18 and 19). The incident resulted in one of
the most significant and widespread pesticide exposure cases in EPA's
history. In another incident, an applicator using the RUP aluminum
caused the death of 2 young girls and made the rest of the family ill
(see, e.g., http://www.justice.gov/archive/usao/ut/news/2011/bugman%20plea.pdf and http://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm?action=3&prosecution_summary_id=2249).
Finally, several severe health incidents have resulted from the public
getting access to RUPs that have been put into different containers,
e.g., transferred to a soda bottle or a sandwich bag, that do not have
the necessary labeling (Ref. 3).
In addition to human health incidents from RUP exposure, there are
instances where use of RUPs has had negative impacts on the
environment. Although data on the damage associated ecological
incidents are difficult to capture, EPA has identified a number of
incidents of harm to fish and aquatic animals, birds, mammals, bees,
and crops that could be prevented by the proposed changes to the
certification rule (Ref. 3). See the economic assessment for this rule
for more information on human health and ecological incidents stemming
from RUP use (Ref. 3).
In light of the incidents discussed above, EPA has determined to
update the certification rule to ensure that RUPs can continue to be
used without posing unreasonable adverse effects to human health or the
environment. EPA's decision to register products as restricted use
rests in part on an assumption that applicators will follow all
labeling instructions. When labeling instructions are followed, RUPs
can be used safely. EPA expects the proposed rule to reduce human
health and environmental incidents related to RUP use by strengthening
the standards of competency for certified applicators, improving
training for noncertified applicators, and establishing a maximum
certification period and standards for recertification training. These
changes would ensure that applicators and those under their supervision
more carefully follow pesticide label instructions, take proper care to
prevent harm, and generally have a higher level of competency.
4. Inadequate protection for noncertified applicators of RUPs.
Noncertified applicators using RUPs receive little instruction on how
to protect themselves, their families, other persons and the
environment from pesticide exposure. Although little demographic data
exists on this group, in industries including but not limited to
agriculture and ornamental plant production, the profile of the
population appears to be similar to that of agricultural pesticide
handlers under the WPS. Both groups are permitted to mix, load, and
apply pesticides with proper guidance from their employer or
supervisor. Agricultural handlers under the WPS only use pesticides in
the production of agricultural commodities; noncertified applicators
may use pesticides in any setting not prohibited by the labeling. In
order to mix, load or apply RUPs, however, all noncertified persons,
including agricultural handlers, must be working under the direct
supervision of a certified applicator and are protected under the
certification rule. These noncertified applicators must be competent to
use RUPs in a manner that will not cause unreasonable adverse effects
to themselves, the public, or the environment. The existing
certification rule does not have specific standards on which
noncertified applicators must receive instruction in order to prepare
them to use RUPs. EPA identified six incidents from 2006 to 2010 where
noncertified applicators experienced high severity health impacts from
working with RUPs (Ref. 3). These adverse health effects were largely
due to the noncertified applicators' lack of understanding about the
risks posed by the RUPs they were applying, proper application
procedures and techniques, and labeling instructions.
Under the WPS, agricultural handlers must receive training that
covers, among other topics, hazards associated with pesticide use;
format and meaning of pesticide labeling; and proper pesticide use,
transportation, storage, and disposal. 40 CFR 170.230(c)(4).
Agricultural handlers also must be provided a copy of the labeling and
any other information necessary to make the application without causing
unreasonable adverse effects. EPA is proposing additional content under
the WPS for agricultural handler training that covers proper use and
removal of PPE and specific information on fitting and wearing
respirators to ensure agricultural handlers are protected adequately
and understand how to follow all relevant labeling provisions (Ref. 4).
Like agricultural handlers, some noncertified applicators may face
challenges, such as not speaking or reading English. They may bear
risks from occupational pesticide exposure because they work with and
around pesticides on a daily basis, and language and literacy barriers
may make effective training and hazard communication challenging. Under
the principles of environmental justice, EPA recognizes the need to
reduce the disproportionate burden or risk carried by this population.
Noncertified applicators must receive adequate instruction on
understanding and following pesticide labeling to ensure that RUPs are
used in a manner that will not cause unreasonable adverse effects to
human health or the environment. Additionally, noncertified applicators
must have sufficient information in order to protect themselves,
others, and the environment before, during, and after pesticide
applications. Because of the similar risks faced by agricultural
handlers under the WPS and noncertified applicators under the
certification rule, EPA proposes to strengthen the standards for
noncertified applicators to include relevant provisions from the
proposed agricultural handler training under the WPS and to ensure that
the training is provided in a manner that the noncertified applicators
understand, including through audiovisual materials or a translator if
necessary.
5. Uneven regulatory landscape. EPA assumes a minimum standard
level of competency of RUP applicators as part of the pesticide
registration and ongoing review processes, and registers RUPs based on
the minimum standard of competency. States, however, may adopt
additional requirements as long as they meet the minimum standards
established by EPA. Two areas of the rule related to assessing
applicator competency lack specificity sufficient to ensure the minimum
level of competency: Standards for exams and private applicator
competency standards. The lack of specificity in the rule has resulted
in States adopting differing standards, some of which do not match
EPA's expectation regarding
[[Page 51365]]
the minimum level of competency of a certified applicator.
In 2007, EPA issued guidance on its interpretation of exams in the
rule. The guidance notes that EPA interprets any exam administered to
gauge applicator competency as being a proctored, closed-book, written
exam. EPA has become aware, however, that not all State certification
programs reflect this interpretation; several States have certification
processes that allow open-book, written exams for determining
applicator competency. EPA is concerned that open-book exams allow a
lower standard for the process of determining and assuring competency
than intended when EPA established the requirement for exams in the
regulation. EPA proposes to codify the 2007 guidance and to clarify its
expectations regarding administration of certification exams and
training programs to ensure that the process for determining competence
meets a standard national baseline.
The certification rule lists five points on which a person much
demonstrate competency to become a private applicator. While these
points cover the main topics that EPA expects an applicator to master
before being certified to use RUPs, they do not cover in detail the
necessary competencies for a person to use RUPs without causing
unreasonable adverse effects. EPA must ensure that private applicators
use RUPs competently. Commercial applicators must demonstrate
competency in core pesticide use, such as reading and understanding the
labeling, calculating application rates, wearing and caring for PPE,
how to handle spills and other emergencies, and avoiding environmental
contamination from pesticide use, as well as in specific categories of
application. Private and commercial applicators have access to the same
RUPs and EPA expects that they have the same level of competency.
Almost 90% of States have adopted specific standards of competency for
private applicators that are comparable to the core standards for
commercial applicators. Those States that have not adopted such
standards for private applicators may be certifying applicators who do
not meet the level of competency that EPA believes is necessary to use
RUPs. To address this problem, EPA proposes to make the standards of
competency for private applicators more specific--the proposed
standards include many concepts from the commercial core standards as
well as competencies necessary to use RUPs in agricultural production.
6. Outdated and obsolete rule provisions. The certification rule
has one section regarding Tribal programs that is outdated and one
section on government agency certification programs that is not
necessary. The current rule provides three options for applicator
certification programs in Indian country. Consultation with Tribes
raised an issue with one of the current options because it calls for
Tribes that chooses to utilize a State certification program and rely
on State certifications to obtain concurrence from the relevant States
and to enter into a documented State-Tribal cooperative agreement. This
option has led to questions about jurisdiction and the appropriate
exercise of enforcement authority for such programs in Indian country.
EPA proposes to revise this option to allow Tribes to administer
programs based on certifications issued by a State, a separate Tribe,
or a Federal agency by entering into an agreement with the appropriate
EPA Regional office. This would allow Tribes to enter into agreements
with EPA to recognize the certification of applicators who hold a
certificate issued under an EPA-approved certification plan without the
need for State-Tribal cooperative agreements. The agreement between the
Tribe and the EPA Regional office would address appropriate
implementation and enforcement issues.
The current rule includes a provision for a GAP, a certification
program that would cover all Federal government employees using RUPs.
No such plan was developed or implemented by EPA or any other Federal
agency. Subsequently, EPA issued a policy that allows each Federal
agency to submit its own plan to certify RUP applicators. Four Federal
agencies have EPA-approved certification plans. To streamline the rule
and codify the existing policy, EPA proposes to delete the current
section on GAP and replace it with requirements from the existing
policy on Federal agency certification plans.
B. Regulatory Objectives
Through this proposal EPA seeks to have those responsible for
making pesticide use decisions and applying RUPs and those who benefit
from the availability of these products to internalize the effects of
their decisions. By strengthening certification standards, adding
categories for application methods that present high risk of exposure,
establishing recertification standards, and requiring specific training
for noncertified applicators, EPA proposes to put the responsibility to
ensure that RUPs are used in a manner to avoid unreasonable adverse
effects on the parties who are most able to control the situation. This
would minimize the externalities, undesirable or unintended
consequences of decisions that result in negative consequences for
other parties, in this case bystanders, the public, and the
environment.
EPA estimates the total annualized cost of the rule at $47.2
million (Ref. 3). States and other jurisdictions that administer
certification programs would bear annualized costs of about $359,000,
but States would incur most of these costs immediately after the rule
is finalized to modify their programs to correspond with the proposed
changes to the Federal regulation. The annual cost to private
applicators would be about $19.5 million, or about $40 per year per
private applicator. The estimated annual cost to commercial applicators
would be $27.4 million, or about $66 per commercial applicator per
year. Many of the firms in the affected sectors are small businesses,
particularly in the agricultural sector. EPA concludes that there would
not be a significant impact on a substantial number of small entities.
The impact to the average small farm is anticipated to be less than 1%
of annual sales while the impacts to small commercial pest control
services are expected to be around 0.1% of annual gross revenue. Given
the modest increases in per-applicator costs, EPA also concludes that
the proposed rule would not have a substantial effect on employment.
The rule changes proposed by EPA would improve the pesticide
applicator certification and training program substantially. Trained
and competent applicators are more likely to apply pesticide products
without causing unreasonable adverse effects and to use RUPs properly
to achieve the intended results than applicators who are not adequately
trained or properly certified. In addition to core pesticide safety and
practical use concepts, certification and training assures that
certified applicators possess critical information on a wide range of
environmental issues such as endangered species, water quality, worker
protection, and protecting non-target organisms, such as pollinators.
Pesticide safety education helps applicators improve their abilities to
avoid pesticide misuse, spills and harm to non-target organisms.
The benefits of the proposed rule accrue to certified and
noncertified applicators, the public, and the environment. EPA
estimates the quantified value of the 638 to 762 acute illnesses from
RUP exposure per year that could be prevented by the rule to be between
$20.1 million and $20.5 million per year (Ref. 3). However, EPA
[[Page 51366]]
recognizes that the estimate is biased downward by an unknown degree.
First, pesticide incidents, like many illnesses and accidents, are
underreported because sufferers may not seek medical care, cases may
not be correctly diagnosed, and correctly diagnosed cases may not be
filed to the central reporting database. Also, many symptoms of
pesticide poisoning, such as fatigue, nausea, rash, dizziness, and
diarrhea, may be confused with other illnesses and may not be reported
as related to pesticide exposure. Studies estimate that underreporting
of pesticide exposure ranges from 20% to 75% (Refs. 9, 10 and 11). If
only 25% of pesticide poisonings are reported, the quantified estimated
benefits of the rule would be about $80.5 million annually (Ref. 3).
EPA's approach to estimating the quantitative benefits of the
proposal only measures avoided medical costs and lost wages, not the
willingness to pay to avoid possible symptoms due to pesticide
exposure, which could be substantially higher. Many of the negative
health impacts associated with agricultural pesticide application are
borne by agricultural workers and handlers, a population that more
acutely feels the impact of lost work time on their incomes and family
health. An increase in the overall level of competency for certified
applicators and noncertified applicators working under their direct
supervision would also be beneficial to people who work, play, or live
in areas treated with RUPs, such as agricultural workers, neighbors of
agricultural fields, and consumers whose homes are treated.
Undertrained and under qualified pesticide applicators may not be aware
immediately of the potential impacts to their own health or the health
of those who live or work around areas where RUPs are applied, and
therefore may not independently adopt measures to increase the safety
of themselves or others, necessitating intervention by the government
to ensure these populations are adequately protected.
It is reasonable to expect that the qualitative benefits of the
rule are more substantial. Although EPA is not able to measure the full
benefits that accrue from reducing chronic exposure to pesticides,
well-documented associations between pesticide exposure and certain
cancer and non-cancer chronic health effects exist in peer-reviewed
literature. See the economic assessment for this proposal for a
discussion of the peer-reviewed literature (Ref. 3). The proposals for
strengthened competency standards for private applicators, expanded
training for noncertified applicators, additional application method-
specific certification categories, a minimum age for all persons using
RUPs, and appropriate certification options in Indian country would
lead to an overall reduction in the number of human health incidents
related to chronic pesticide exposure and environmental contamination
from improper or misapplication of pesticides. Overall, the weight of
evidence suggests that the proposed requirements would result in long-
term health benefits to certified and noncertified applicators, as well
as to bystanders and the public.
It is reasonable to expect that the proposed rule would benefit the
environment and the food supply. The proposed changes enhance private
applicator competency standards to include information on protecting
the environment during and after application, such as protecting
pollinators and avoiding contamination of water supplies. The proposal
to ensure that all applicators continue to demonstrate their competency
to use RUPs without unreasonable adverse effect should better protect
the public from RUP exposure when occupying treated buildings or
outdoor spaces, consuming treated food products, and when near areas
where RUPs have been applied. The economic assessment for this proposal
includes a qualitative discussion of 68 incidents from 2009 through
2013 where applicator errors while applying RUPs damaged crops or
killed fish, bird, bees, or other animals (Ref. 3). The environment
should also be better protected from misapplication, which can result
in cleaner water and less impact on non-target plants and animals.
In addition, the proposed changes to the certification regulation
specifically mitigate risks to children. The proposal would implement a
minimum age of 18 for certified applicators and noncertified
applicators working under their direct supervision. Since children's
bodies are still developing, they may be more susceptible to risks
associated with RUP application and therefore would benefit from
strengthened protections. In addition, research has shown that children
may not have developed fully the capacity to make decisions and to
weigh risks (Refs. 20, 21 and 22). Proper application of RUPs is
essential to protect the safety of people who work, visit, or live in
or near areas treated with RUPs, people who eat food that has been
treated with RUPs, people and animals who depend on an uncontaminated
water supply, as well as the safety of the applicator him or herself.
Therefore, it is reasonable to expect that restricting certification to
persons over 18 years old would better protect both the applicators and
those who may be affected negatively by improper or misapplication.
Children also suffer the effects of RUP exposure from residential
applications and accidental ingestion. Accidental ingestion occurs when
children get access to an RUP that has been improperly stored, e.g.,
transferred to an unmarked container or left accessible to the public
(Ref. 12). The proposed changes improve training for noncertified
applicators, strengthen competency standards for private applicators,
and require all applicators to demonstrate continued competency to use
RUPs. These changes would remind applicators about core principles of
safe pesticide use and storage, reducing the likelihood that children
would experience these types of RUP exposures. Thus, the proposed
changes may reduce children's exposure to RUPs and contamination caused
by improper application of pesticides.
In the almost 4 decades since implementing the certification
regulation, EPA has learned from the Pesticide Program Dialogue
Committee, Certification and Training Assessment Group (CTAG), National
Assessment of the Pesticide Worker Safety Program, meetings with State
regulators, and other stakeholder interaction, that the national
applicator certification program needs improvements, some of which can
only be accomplished through rulemaking. This proposal reflects EPA's
commitment to pay particular attention to the health of children and
environmental justice concerns.
C. Considerations for Improving the Certification of Applicators Rule
1. Regulatory history. The Agency proposed the existing
certification rule in 1974. EPA finalized sections covering applicator
competency standards and noncertified applicator requirements (40 CFR
171.1 through 171.6) in 1974 (Ref. 23), followed by sections outlining
State plan submission and review and certification in Indian country
(40 CFR 171.7 through 171.10) in 1975 (Ref. 24), and the requirements
for EPA-administered plans (40 CFR 171.11) in 1978 (Ref. 25). Since
1978, EPA has made minor amendments to the rule, such as requiring
dealer recordkeeping and reporting under EPA-implemented plans and
establishing standards for EPA-administered plans (Refs. 26 and 27).
In 1990, EPA proposed amendments to the certification regulation
that included provisions for establishing private applicator
categories, adding
[[Page 51367]]
categories for commercial applicators, revising applicator competency
standards, establishing criteria and levels of supervision for the use
of a RUP by a noncertified applicator, criteria for approving State
noncertified applicator training programs, establishing recertification
requirements for private and commercial applicators, and eliminating
the exemption for non-reader certification (Ref. 28). EPA took comments
on the proposal but did not finalize it due to constraints on EPA's
resources.
Because no major revision has been made to this Federal regulation
in almost 40 years, State programs have taken the lead in revising and
updating standards for certification and recertification. Many States
updated their certification programs based on EPA's 1990 proposal.
Others have amended their programs to address changes in technology or
other aspects of pesticide application. As a result, the State
requirements for certification of applicators are highly varied and
most States go beyond the existing Federal requirements for applicator
certification. This situation has created an uneven regulatory
landscape and problems in program consistency that complicate
registration decisions, inhibit State-to-State reciprocity (i.e.,
recognition of other State certifications as valid), and hinder EPA's
ability to develop national program materials that meet the needs of
all States.
2. Stakeholder Engagement. In 1985, a taskforce was formed by EPA
and the State-FIFRA Issues Research and Evaluation Group (SFIREG) to
review existing certification programs and policies to determine what,
if any, actions should be taken to improve the certification program.
The taskforce included representatives from EPA, USDA, State
cooperative extension services, and State lead agencies for pesticide
regulation. The taskforce issued the Report of the EPA/SFIREG
Certification and Training Task Force in August 1985 (Ref. 29), which
identified areas in need of improvement and made specific
recommendations for improvement. The taskforce noted the growing
complexity and technological advancements in pesticides and pesticide
use practices, especially in the agricultural community. Further, the
taskforce recognized proper pesticide use as a growing issue under
broader environmental concerns, such as groundwater protection,
endangered species protection, worker protection, chronic toxicity,
pesticide disposal, and pesticide residues in the food supply (Ref.
29). The agricultural and commercial applicator communities were
becoming aware of these issues and as a consequence sought increased
and specialized training. Based on the identified issues and action in
the applicator community, the taskforce suggested that EPA upgrade the
competency requirements for private and commercial agricultural
applicators.
The taskforce's recommendations included adding additional
categories ``for certain use and application methods which require more
stringent attention [such as] Compound 1080, certain fumigants, or
aerial application'' (Ref. 29). In addition, the taskforce recommended
strengthening the training for noncertified applicators working under
the direct supervision of a certified applicator and requiring
commercial applicators to retain records of the training (Ref. 29). It
suggested that EPA add dealer requirements for recordkeeping about
sales of RUPs and make private applicator competency standards closer
to the general commercial applicator competency standards. Lastly, the
report discussed the need for a standard recertification period and
``sufficient standardization of training and the process of
certification renewal to facilitate interstate commerce'' (Ref. 29).
EPA proposed amendments to the certification regulation in 1990
(Ref. 28), based in part on the taskforce's report (Ref. 29). However,
the proposed rule was not finalized and the taskforce's recommendations
were not implemented at the Federal level. While many States adopted
new regulations meeting or exceeding the proposed standards contained
in the 1990 proposal, other States chose to retain their standards
until EPA revised the Federal certification regulation. Some States
sought to avoid potential conflicts with Federal regulations that had
not been finalized, while other States were bound by laws or
regulations that prohibited the State's standards from being more
restrictive than Federal standards.
In 1996, stakeholders from the Federal and State governments and
cooperative extension programs formed CTAG to assess the current status
of and provide direction for Federal and State pesticide applicator
certification programs. CTAG's mission is to develop and implement
proposals to strengthen Federal, State and Tribal pesticide
certification and training programs, with the goal of enhancing the
knowledge and skills of pesticide users. Pesticide certification and
training programs are run primarily by State government programs and
cooperative extension service programs from State land grant
universities, so these stakeholders provide valuable insight into the
needs of the program.
In 1999, CTAG issued a comprehensive report, Pesticide Safety in
the 21st Century (Ref. 30), which recommended improvements for State
and Federal pesticide applicator certification programs, including how
to strengthen the certification regulation. The report suggests that
EPA update the core training requirements for private and commercial
applicators, establish a minimum age for applicator certification, set
standards for a recertification or continuing education program,
facilitate the ability of applicators certified in one State to work in
another State without going through the whole certification process
again, and strengthen protections for noncertified applicators working
under the direct supervision of a certified applicator (Ref. 30).
Around the same time as CTAG issued its report, EPA initiated the
National Assessment of the Pesticide Worker Safety Program (the
National Assessment), an evaluation of its pesticide worker safety
program (pesticide applicator certification and agricultural worker
protection) (Ref. 31). The National Assessment engaged a wide array of
stakeholder groups in public forums to discuss among other things, the
CTAG recommendations and other necessary improvements to EPA's
pesticide applicator certification program. In 2005, EPA issued the
Report on the National Assessment of EPA's Pesticide Worker Safety
Program (Ref. 32), which included many recommendations for rule
revisions to improve the applicator certification program. The various
individual opinions and suggestions made during the course of the
assessment centered on a few broad improvement areas: The expansion and
upgrade of applicator and worker competency and promotion of safer work
practices, improved training of and communication with all pesticide
workers, increased enforcement efforts and improved training of
inspectors, training of health care providers and monitoring of
pesticide incidents, and finally, program operation, efficiency and
funding (Ref. 32). Suggestions specific to certification of applicators
included improving standards for noncertified applicators working under
the direct supervision of certified applicators, establishing a minimum
age for applicator certification, requiring all applicators to pass an
exam to become certified, and facilitating reciprocity between States
for certification of applicators (Ref. 32). While EPA addressed some of
the recommendations through grants,
[[Page 51368]]
program guidance, and other outreach, others could only be accomplished
by rulemaking.
During the initial stages of the framing of this proposal, EPA's
Federal advisory committee, the Pesticide Program Dialogue Committee
(PPDC), formed a workgroup in 2006 to provide feedback to EPA on
different areas for change to the certification regulation and the WPS.
The workgroup had over 70 members representing a wide range of
stakeholders. EPA shared with the workgroup suggestions for regulatory
change identified through the National Assessment and solicited
comments. The workgroup convened for a series of meetings and
conference calls to get more information on specific parts of the
regulation and areas where EPA was considering change, and provided
feedback to EPA. The workgroup focused on evaluating possible changes
under consideration by EPA by providing feedback from each member's or
organization's perspective. Comments from the PPDC workgroup members
have been compiled into a single document and posted in the docket
(Ref. 33).
EPA convened a Small Business Advocacy Review (SBAR) Panel on
potential revisions to the certification rule and the WPS in 2008. The
SBAR Panel was convened under section 609(b) of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 609(b). As part of the SBAR Panel's
activities, EPA consulted with a group of Small Entity Representatives
(SERs) from small businesses and organizations that could be affected
by the potential revisions. EPA provided the SERs with information on
potential revisions to both rules and requested feedback on the
proposals under consideration. EPA asked the SERs to offer alternate
solutions to the potential proposals presented to provide flexibility
or to decrease economic impact for small entities while still
accomplishing the goal of improved safety (Ref. 34).
Specific to the certification rule, the SERs provided feedback on
requirements for the minimum age of pesticide applicators and
protections for noncertified applicators working under the direct
supervision of a certified applicator. The SERs' responses were
compiled in an Appendix to the final Panel Report and posted in the
docket (Ref. 34). EPA considered input from the SERs as part of the
evaluation of available options for this rulemaking and SER feedback is
discussed where relevant in this preamble.
Consistent with EPA's Indian Policy and Tribal Consultation Policy,
EPA's Office of Pesticide Programs conducted a consultation with
Tribes. The consultation was carried out via a series of scheduled
conference calls with Tribal representatives to inform them about
potential regulatory changes, especially areas that could affect
Tribes. EPA also informed the Tribal Pesticide Program Council (TPPC)
about the potential changes to the regulation.
In addition to formal stakeholder outreach, EPA held numerous
individual stakeholder meetings as requested to discuss concerns and
suggestions in detail. Stakeholders requesting meetings included the
National Association of State Departments of Agriculture (NASDA), the
American Association of Pesticide Safety Educators (AAPSE), the
Association of American Pesticide Control Officials (AAPCO), the
Association of Structural Pest Control Regulatory Officials (ASPCRO),
Crop Life America, and others.
3. Children's health protection. Executive Order 13045 (62 FR
19885, April 23, 1997) and modified by Executive Order 13296 (68 FR
19931, April 18, 2003) requires Federal agencies to identify and assess
environmental health risks that may disproportionately affect children.
Children who apply pesticides face risks of exposure. A 2003 study
identified 531 children under 18 years old with acute occupational
pesticide-related illnesses over a 10-year period (Ref. 35). The same
study raised concerns for chronic impacts: ``because [the] acute
illnesses affect young people at a time before they have reached full
developmental maturation, there is also concern about unique and
persistent chronic effects'' (Ref. 35). Although the study is not
limited to RUPs, its findings indicate the potential risk to children
from working with and around pesticides.
The Fair Labor Standard Act's (FLSA) child labor provisions, which
are administered by DOL, permit children to work at younger ages in
agricultural employment than in non-agricultural employment. Children
under 16 years old are prohibited from doing hazardous tasks in
agriculture, including handling or applying acutely toxic pesticides.
29 CFR 570.71(a)(9). DOL has established a general rule, applicable to
most industries other than agriculture, that workers must be at least
18 years old to perform hazardous jobs. 29 CFR 570.120.
Research has shown differences in the decision making of
adolescents and adults that leads to the conclusion that applicators
that are children may take more risks than those who are adults.
Behavioral scientists note that responsible decision making is more
common in young adults than adolescents: ``socially responsible
decision making is significantly more common among young adults than
among adolescents, but does not increase appreciably after age 19.
Adolescents, on average, scored significantly worse than adults did,
but individual differences in judgment within each adolescent age group
were considerable. These findings call into question recent assertions,
derived from studies of logical reasoning, that adolescents and adults
are equally competent and that laws and social policies should treat
them as such'' (Ref. 22). Decision-making skills and competence differ
between adolescents and adults. While research has focused on decision
making of juveniles in terms of legal culpability, the research
suggests similar logic can be applied to decision making for pesticide
application.
In sum, children applying RUPs--products that require additional
care when used to ensure they do not cause unreasonable adverse effects
on people or the environment--may be at a potentially higher risk of
pesticide exposure and illness. The elevated risk to the adolescent
applicators, in addition to adolescents' not fully developed decision-
making abilities, warrant careful consideration of the best ways to
protect them. It is reasonable to expect that the proposed changes
would mitigate or eliminate many of the risks faced by adolescents
covered by this rule.
4. Retrospective regulatory review. On January 18, 2011, President
Obama issued Executive Order 13563 (76 FR 3821, January 21, 2011), to
direct each Federal agency to develop a plan, consistent with law and
its resources and regulatory priorities, under which the agency would
periodically review its existing significant regulations to determine
whether any such regulations should be modified, streamlined, expanded,
or repealed so as to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.
The Executive Order also enumerates a number of principles and
directives to guide agencies as they work to improve the Nation's
regulatory system.
In developing its plan, EPA sought public input on the design of
EPA's plan for the periodic retrospective review of its regulations,
and stakeholder suggestions for regulations that should be the first to
undergo a retrospective review (76 FR 9988, February 23, 2011), and
issued the final EPA plan, titled ``Improving Our Regulations: Final
Plan
[[Page 51369]]
for Periodic Retrospective Reviews of Existing Regulations,'' in August
2011 (http://www.epa.gov/regdarrt/retrospective/documents/eparetroreviewplan-aug2011.pdf).
The existing certification rule was nominated for retrospective
review as part of the public involvement process in 2011. In EPA's
final plan, EPA committed to review the existing certification rule to
determine how to clarify requirements and modify potentially redundant
or restrictive requirements, in keeping with Executive Order 13563.
The results of EPA's review, which included identified
opportunities for improving the existing regulation, were incorporated
into this rulemaking effort. Based on extensive interactions with
stakeholders during review of the certification regulation, EPA has
identified the potential for harmonized minimum requirements to enhance
State-to-State reciprocity of applicator certifications, which could
reduce the burden on the regulated community by promoting better
coordination among the State, Federal, and Tribal partnerships;
clarifying requirements; and modifying potentially redundant or
restrictive regulation. EPA expects the proposed rule, if finalized, to
achieve the benefits outlined throughout the preamble. For a summary of
the benefits, see the table in Unit I.E. and the discussion of
regulatory objectives in Unit III.B.
IV. Summary of Rationale and Introduction to Specific Revisions to Part
171
Units II. and III. describe the stakeholder engagement and reports
highlighting the need to update the certification regulation. In
addition to stakeholder recommendations, EPA believes the rule needs to
be updated to address State variability and to support EPA registration
decisions. Each of these reasons for updating the rule are discussed in
this unit.
As noted in Unit III., EPA has not updated the certification
regulation substantially in almost 40 years. However, many States have
adopted updated standards for certification and recertification. As a
result, State requirements for certification of applicators are highly
varied; most States go beyond the existing Federal requirements for
applicator certification. This has created an uneven regulatory
landscape between States and inhibits recognition of an applicator
certification issued in one State by another State.
If certification does not represent a uniform degree of competence,
this diversity also compromises EPA's ability to determine confidently
that use of a pesticide product by certified applicators will not cause
unreasonable adverse effects. In order to retain or expand the number
and types of pesticides available to benefit agriculture, public
health, and other pest control needs, EPA plans to raise the Federal
standards for applicator competency. By adopting the proposed
strengthened and additional competency standards, the rule would
provide assurance that certified applicators and noncertified
applicators under their direct supervision are competent to use RUPs in
a manner that will not cause unreasonable adverse effects. In the
absence of such assurance, EPA may have to seek label amendments
imposing other use limitations that could be more burdensome to users.
Units VI. to XX. describe the most significant of the proposed
changes and alternative options considered by EPA. Each discussion is
generally structured to provide, where appropriate:
A concise statement of the proposed change.
The current requirements of the certification regulation.
Stakeholder feedback and research supporting the proposed
change.
A detailed description of the proposed change and the
rationale for the change.
An estimated cost.
A description of primary alternatives considered by EPA
and the reason for not proposing them.
Specific questions on which EPA seeks feedback.
V. Public Comments
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.
VI. Revise Private Applicator Certification Standards
A. Enhance Private Applicator Competency Standards
1. EPA's proposal. Because private applicators have access to and
can apply the same RUPs as commercial applicators and therefore need to
have similar knowledge and skills to apply pesticides safely and
effectively, EPA proposes to amend the private applicator competency
standards to include more specific information on pesticide application
and safe use.
2. Existing regulation. The current rule has 5 topics under the
competency standards for private applicators:
Recognize common pests to be controlled and damage caused
by them.
Read and understand the label and labeling information.
Apply pesticides in accordance with label instructions and
warnings.
Recognize local environmental situations that must be
considered during application to avoid contamination.
Recognize poisoning symptoms and procedures to follow in
case of a pesticide accident. 40 CFR 171.5(a)(1) through (5).
These topics are listed without specific detail or clarification of
the areas to be covered under each point. In contrast, the core
standards of competency for commercial certification have nine major
areas of focus with more specific sub-points listed under each. 40 CFR
171.4(b)(1).
3. Stakeholder information. Starting in 1985, EPA received requests
from stakeholders to increase the level of detail and subject matter
outlined in the competency standards for private applicators. SFIREG's
taskforce report calls for EPA to make private applicator competency
standards parallel to those of commercial applicators (Ref. 29). CTAG
recommended that all applicators with access to RUPs meet a similar
competency standard (Ref. 30). Members of the PPDC workgroup also noted
that since commercial and private applicators have access to the same
products, they should meet similar competency standards (Ref. 33).
Almost 90% of States noted that their private applicator certification
standards are comparable to the core standards for commercial
applicators (Ref. 5).
4. Details of the proposal/rationale. Based on the importance of
understanding and following the pesticide's labeling in managing risks
to the applicator, the public, and the environment, EPA is proposing to
enhance the competency standards for private applicators to more
specifically
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define the necessary knowledge and skills to be demonstrated by private
applicators to become certified. More specific competency standards
would better outline the knowledge and skills EPA expects private
applicators to have in order to apply RUPs effectively and without
unreasonable adverse effects.
The enhanced private applicator competency standards would cover:
Label and labeling comprehension; safety; environment; pests;
pesticides; equipment; application methods; laws and regulations;
responsibilities for supervisors of noncertified applicators;
stewardship; and agricultural pest control. EPA is proposing a set of
competency standards substantially parallel to the core standards for
commercial applicators in the current rule at 40 CFR 171.4(a) and
proposed as 40 CFR 171.105(a), with the addition of some points from
the agricultural plant category and information particularly relevant
to private applicators, such as the WPS. The proposed competency
standards specifically cover protecting pollinators under the
``environment'' heading. In addition to the differences in the proposed
general competency standards for private and commercial applicators,
EPA proposes to maintain the distinction between private and commercial
applicator competency standards required by FIFRA, 7 U.S.C. 136i(e), by
not requiring private applicators to obtain a specific category
certification in addition to the proposed general certification. For
commercial applicators to become certified, they must pass the core and
at least one category exam.
It is reasonable to expect that the more detailed competency
standards would contribute to improving the overall competency of
private applicators.
The proposed regulatory text would be located at 40 CFR 171.105(a).
5. Costs/benefits. EPA estimated the cost of the proposed
enhancements to private applicator competency standards in conjunction
with the requirement to strengthen private applicator certification
requirements. The cost for these combined proposals is presented in
Unit VI.B.5.
6. Alternative options. EPA considered adopting the core standards
for commercial applicators in the current rule at 40 CFR 171.4(a) for
private applicator competency standards. Private and commercial
applicators have the same access to RUPs and need knowledge of basic
safety and application techniques related to the use of these products.
However, FIFRA requires that EPA establish separate standards for
commercial and private applicators, thereby prohibiting EPA from using
the same core competency standards for commercial and private
applicators. 7 U.S.C. 136i(e). In addition, because private applicators
are engaged only in the production of agricultural commodities, it is
necessary for them to demonstrate specific competency related to this
type of RUP use rather than the broader range of commercial applicator
competencies.
7. Request for comment. EPA seeks comment on the following:
Should EPA consider adding points to or deleting points
from the proposed private applicator competency standards? If so, what
points and why?
Are the competencies necessary to protect pollinators
adequately covered in the proposed competency standards for private
applicators? If not, please explain why and provide alternatives to
ensure that private applicators are competent to use RUPs in a manner
that protects pollinators.
B. Strengthen Private Applicator Certification Requirements
1. EPA's proposal. In order to address the need for private
applicators to be competent to use RUPs, EPA proposes to require that
persons seeking certification as private applicators complete a
training program approved by the certifying authority that covers the
standards of competency for private applicators or pass a written exam
administered by the certifying authority.
2. Existing regulation. The certification regulation requires
States to ensure that private applicators are competent and the
certification process use a written or oral exam, or other method
approved as part of the State certification plan. 40 CFR 171.5(b). The
rule does not have a description of a certification system that is not
a written or oral testing procedure.
3. Stakeholder information. SFIREG, the PPDC workgroup, and CTAG
have recommended that private applicators be required to take and pass
a written exam to become certified to use RUPs (Refs. 29, 33 and 36).
Based on data from State certification plans, 42 States require private
applicators to pass a written exam to become certified, and another 3
States offer the option to certify by passing a written exam (Ref. 5).
Stakeholders recognize the provision in FIFRA that prohibits EPA
from requiring private applicators to take an exam to establish
competency, 7 U.S.C. 136i(a)(1), and have suggested that EPA set a
minimum training requirement for those States that do not require
private applicators to take an exam.
4. Details of the proposal/rationale. To implement the enhanced
competency standards for private applicators, EPA proposes to require
that private applicators complete a training program approved by the
certifying authority, or in the alternative, by passing a written exam.
In either case, the certification process must cover the private
applicator core standards described in Unit VI.A., and meet the
procedural standards described in Unit IX. By allowing private
applicators to be certified by either attending a training program or
taking an exam, EPA's action does not conflict with the FIFRA's
prohibition against EPA requiring private applicators of RUPs take an
exam to establish competency. 7 U.S.C. 136i(a)(1).
Forty-two States already require private applicators to pass a
written exam for certification, so EPA is proposing standard procedures
for such examinations. Those States without a written exam requirement
generally require some form of training, though the length, quality,
and content of the training vary considerably between States, so EPA is
proposing specific content requirements. It is reasonable to expect
that the risks associated with private applicators' use of RUPs can be
reduced through setting more specific minimum requirements for the
content of and mechanisms to assess private applicator competency. This
proposal acknowledges the need for more specific requirements for the
alternate mechanism for private applicator certification and balances
it with the recognition that certifying authorities are well-suited to
develop training programs that cover the content EPA has deemed
necessary to avoid unreasonable adverse effects from the use of RUPs by
private applicators and meet the needs of the private applicators in
their jurisdictions.
The proposed regulatory text would be located at 40 CFR 171.105(e).
5. Costs. EPA estimates this proposal would cost about $3.7 million
annually for private applicators (Ref. 3). EPA also estimates that
those States that do not currently require an exam or training that
last approximately 12 hours for private applicator certification would
incur costs of about $16,000 per year for the first two years after
implementation to develop the programs, as well as $61,000 per year
thereafter for ongoing program administration (Ref. 3). EPA plans to
support the development of exams and manuals for private applicator
certification, which should reduce the costs to States.
6. Alternative options considered but not proposed. While
maintaining the
[[Page 51371]]
same enhanced competency standards discussed in Unit VI.A., EPA
considered alternative options of allowing private applicator
certification by completing a training program of a specific length--
either 4, 8, or 16 hours--that covers the content outlined in Unit
VI.A. In developing the EPA-administered certification plan for Indian
country, EPA developed a non-exam certification option for private
applicators. Because of the difficulty of reaching candidates in
various parts of the country and the need to make the training
available throughout the year, the Federal Indian country training
program is a pre-recorded, narrated PowerPoint presented through the
Internet that runs 12 hours (Ref. 37). The training covers much of the
content proposed in Unit VI.A., as well as specific requirements for
pesticide applicators in Indian country. However, EPA decided not to
propose a specific length for private applicator certification by
training. EPA believes that specifying that private applicator non-exam
certification must be accomplished through training and outlining the
content that must be covered in the training would allow States and
private applicator educators--who understand the content, the audience,
and how to convey the content to the audience--to develop training
programs that cover the content EPA deems necessary and meet the needs
of their audiences. For example, narrated PowerPoint presentations and
webinars may take a longer amount of time to cover the specified topics
than an in-person training. Additionally, a mandatory training length
could encourage some training providers to either rush through or draw
out coverage of the content, thereby diminishing the effectiveness of
the training. It is not clear that specifying the length of the
training would better protect human health or the environment.
7. Request for comment. EPA specifically requests comment on the
following:
Please provide any relevant information on the efficacy of
private applicator certification training programs or comparisons
between training and testing programs.
Please comment on the proposed structure of the non-exam
option for private applicator certification.
Would a different training requirement adequately convey
the necessary information to private applicators? If so, please
describe the alternate requirement.
Is it necessary for EPA to specify a minimum length of
time for the training program for private applicator certification? If
so, please provide the minimum length of the training program and
explain its basis.
C. Eliminate Non-Reader Certification for Private Applicators
1. EPA's proposal. Due to the importance of an applicator's ability
to read, understand, and follow the labeling in order to apply
pesticides in a manner that would not cause unreasonable adverse
effects to people or the environment, EPA proposes to delete the
provision of the rule that allows a non-reader to become a certified
private applicator.
2. Existing regulation. The existing rule contains a provision for
limited certification of private applicators who cannot read by
offering the option to obtain a product-specific certification. 40 CFR
171.5(b)(1). This provision allows States to use a testing procedure
approved by the Administrator to assess the competence of the non-
reader candidate related to the use and handling of each individual
pesticide for which certification is sought. This generally means that
someone has explained the labeling to the non-reader and the non-reader
answers questions on the same labeling asked by the State regulator.
The person seeking certification is not required to demonstrate the
ability to read and understand pesticide labeling.
As discussed earlier, FIFRA prohibits EPA from requiring private
applicators to pass an exam to establish competency. 7 U.S.C.
136i(a)(1).
3. Stakeholder information considered by EPA. CTAG recommended that
EPA establish a requirement for persons seeking certification to be
able to read and understand English language pesticide labeling. Most
PPDC workgroup members did not oppose elimination of the non-reader
certification provision (Ref. 33). One State noted that there are small
populations who either cannot read English-language labeling or who
could not pass an exam, but who could use a single product without
causing unreasonable adverse effects. It is EPA's understanding that 22
states have rules in place that make accommodations for persons who
have difficulty reading and who want to become certified as a private
applicator. These states are Alaska, Arizona, California, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Maine, Michigan,
Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York,
Vermont, Virginia, Wisconsin, and Wyoming. Of these states, 6 have
rules in place that make accommodations under the Americans with
Disabilities Act for persons who have documented disabilities. States
are not required to track private applicators certified under the
limited certification provision separately from other private
applicator certification methods. However, EPA requested anecdotal
information from the states on the use of this limited certification
provision and most states responding said that the provision was never
or rarely used.
4. Details of the proposal/rationale. EPA proposes to eliminate the
current provision that allows States to offer limited certification to
persons who cannot read the pesticide labeling. A key element of
applicator competency is the ability to read the labeling because
understanding the labeling is critical to preventing unreasonable
adverse effects from the use of RUPs. Labeling is increasingly relied
upon to transmit product-specific information relative to subjects such
as worker protection, groundwater, endangered species, and human
exposure. In addition, labeling may change frequently. Approved uses,
application rates, and application methods may be deleted or added by a
registrant voluntarily or as part of an EPA risk mitigation strategy.
The potential for misuse of RUPs presents an unreasonable risk unless
the applicator is able to read and correctly interpret the labeling
that accompanies each product he or she uses. While the current system
is intended to ensure the applicator has knowledge of a specific
product's labeling, there is no way to ensure the applicator would be
aware of subsequent changes. It is reasonable to expect that by
eliminating the specific certification method for applicators who
cannot read, RUPs are more likely to be applied as required by their
labeling, and therefore will be less likely to cause unreasonable
adverse effects to people or the environment.
EPA recognizes that persons can be certified as private applicators
by attending a training course. In this case, EPA expects that the
certifying body would ensure that the applicator demonstrated all of
the necessary competencies to apply RUPs, including the ability to
read.
The proposed change does not affect noncertified persons applying
RUPs under the direct supervision of a certified applicator. It is
conceivable that persons who cannot read labeling could use RUPs
properly while working under the direct supervision of a certified
applicator. EPA is proposing to strengthen the training and other
requirements related to noncertified applicators to ensure that they
understand the labeling requirements for each application, are
supervised by
[[Page 51372]]
a qualified applicator familiar with the specific product labeling for
each application, and have equipment available to contact the
supervising applicator immediately in the event of an emergency or with
any questions. These strengthened standards should provide sufficient
training that a non-reader or a person who cannot read English could
apply RUPs under the direct supervision of a certified applicator
without causing unreasonable adverse effects to the applicator, the
public, or the environment.
5. Costs. EPA expects the cost of this proposal would be
negligible, but has not quantified the cost (Ref. 3). Based on EPA's
understanding, the limited certification option is only offered in 22
States, and in those states it is very rarely, if ever, used. EPA did
not quantify the baseline cost to States for maintaining the existing
provision or the potential reduction in administrative burden to States
from eliminating it. EPA anticipates that the minimal costs would be
borne by persons who could not qualify as private applicators absent a
limited certification provision. These persons would have several
options. First they could hire a person on the farm who can be
certified as a private applicator to conduct RUP applications. Second,
they could contract with a commercial applicator to conduct RUP
applications. Third, they could substitute non-RUPs for the RUPs. EPA
is sensitive to the fact that elimination of this provision may
increase costs for a very small number of private applicators, but it
is reasonable to expect that this adverse impact would be small in
comparison to the potential reduction in risks to the applicator, the
public, and the environment. EPA does not expect any impact on the
employability of private applicators because by definition, a private
applicator cannot receive compensation for applying RUPs on the
property of another.
If the proposal is finalized, EPA would allow existing non-reader
certifications to remain valid until expiration or recertification is
required under the implementation of the final rule. Because most non-
reader certifications are issued for a specific application in a single
growing season, EPA anticipates that non-reader certification would not
continue for any significant period of time if this proposal is
finalized.
6. Alternative options considered but not proposed. EPA also
considered retaining the limited certification option for private
applicator certification and strengthening the requirements. For this
alternative scenario, the limited certification would be valid for a
single product and for a single season. The State would have to
evaluate each request for a limited certification separately. This
option would codify what EPA understands to be the current practice in
States that allow non-reader certification. Under this option, a person
could be certified to use a single product based on a specific
product's labeling, but might not be aware of subsequent changes to the
labeling of the same product purchased later in the season. Given the
importance of avoiding unreasonable adverse effects from the use of
RUPs and the limited use of this certification option, EPA decided not
to propose this option.
7. Request for comment. EPA requests comment on the following
questions:
Would the elimination of the non-reader provision cause
hardship to specific groups of private applicators? If so, please
describe the group and the hardship.
Should EPA allow private applicators currently certified
under this provision to retain their certification if the non-reader
provision is eliminated? Please explain why. If so, how would
``grandfathering in'' private applicators certified under this
provision impact other proposed changes, such as requirements for
maintaining certification and supervising noncertified applicators?
Do alternatives to the non-reader certification option
exist that would offer an adequate level of protection while
maintaining a narrow exception to certification requirements? If so,
please describe.
VII. Establish Application Method-Specific Certification Categories for
Private and Commercial Applicators
1. Overview. In order to address the elevated risks associated with
certain specific methods of application used by certified private and
commercial applicators to apply RUPs, EPA proposes to add application
method-specific certification categories for private and commercial
applicators that use RUPs to conduct soil fumigation, non-soil
fumigation, and aerial applications. These application method-specific
categories would be independent of the pest control categories in the
existing rule, for example, a person certified in the aerial method
category would also need certification in one or more pest control
categories, such as crop pest control, forest pest control, or public
health pest control.
2. Existing regulation. The existing rule has no categories for
private applicators. For commercial applicators, the existing rule does
not have any application method-specific categories, although it does
have 11 pest control categories: Agricultural pest control--plant;
agricultural pest control--animal; forest pest control; ornamental and
turf pest control; seed treatment; aquatic pest control; right-of-way
pest control; industrial, institutional, structural and health related
pest control; public health pest control; regulatory pest control; and
demonstration and research pest control. 40 CFR 171.3.
3. Stakeholder information considered by EPA. Stakeholders,
including SFIREG, CTAG, AAPCO, and members of the PPDC workgroup,
recommended that EPA consider adding application method-specific
certification categories for high-risk uses (Refs. 29 and 30). States
have noted that certain application methods, specifically fumigation
and aerial application, pose elevated risks of exposure or harm to the
applicator, bystanders, or the environment.
Some States have addressed these elevated risks related to these
application methods by adding specific categories for both private and
commercial applicators seeking to use certain application methods.
States that have chosen to add categories have done so independently,
resulting in different standards and levels of protection across the
country. EPA reviewed the categories related to application methods
adopted by the States and other stakeholders. According to data from
2013, 32 States (Alaska, California, Connecticut, Florida, Georgia,
Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New
Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania,
South Carolina, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming)
require commercial applicators to be certified for aerial application
and 1 State (Wisconsin) requires the same for private applicators. For
soil fumigation, 16 States (California, Connecticut, Delaware, Florida,
Idaho, Illinois, Minnesota, Nebraska, New York, North Carolina, Ohio,
Oregon, Pennsylvania, Virginia, Washington, Wisconsin) require
commercial applicators to obtain a specific certification and 10 States
(Hawaii, Idaho, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania,
Washington, Wisconsin, Virginia) have a similar requirement for private
applicators. Finally, for non-soil fumigation, 41 States (Alabama,
Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia,
[[Page 51373]]
Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland,
Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Texas, Utah, Virginia, Washington State, West
Virginia, Wisconsin, Wyoming) mandate that commercial applicators be
certified in this specific category to conduct non-soil fumigation
applications and 8 States (Arizona, Iowa, Minnesota, Nevada, North
Dakota, Ohio, Pennsylvania, Utah) have a similar requirement for
private applicators.
The 2008 REDs for soil fumigants acknowledged the elevated risks
(Ref. 17). As a result of these risks, EPA required additional training
for soil fumigant applicators through labeling amendments. The decision
also acknowledged that a specific certification category requiring
demonstration of competency by passing a written exam related to
applying fumigants to soil would be an acceptable alternative risk
mitigation measure. Several States have opted to require applicators to
be certified in a specific soil fumigation category. As chemicals are
reviewed as part of the ongoing registration review program, risks
associated with individual pesticides may be addressed through labeling
requirements for additional training or competency.
4. Details of the proposal/rationale. The Agency proposes to
establish three application method-specific certification categories
for private and commercial applicators: Soil fumigation, non-soil
fumigation, and aerial. Based on the discussions with States and review
of existing State-adopted categories, EPA proposes these categories
because EPA has concluded that these categories of use for RUPs may
cause unreasonable adverse effects without additional regulation. These
types of RUP application require specialized skills and present unique
risks, such that it is reasonable and appropriate for private and
commercial applicators to acquire or demonstrate the pertinent
knowledge and skills before being certified to apply RUPs in any of
these three categories. For commercial applicators, certification in
any of the application method-specific categories would only be
available to persons certified in a relevant pest control category as
described in proposed 40 CFR 171.101(a). Private applicators would need
to satisfy the general competency standards described in Unit VI in
order to qualify for additional certification in an application method-
specific category.
Pesticide application and agriculture both are becoming
increasingly specialized. Improper use of application equipment may
lead to increased risks to the health of the applicator, workers, the
environment, and the public. Additionally, certain categories of
pesticides, including fumigants, pose an inherently higher risk of
acute injury or death if the applicator does not understand and follow
the labeling. These increased risks can be mitigated by requiring
applicators to demonstrate a more specific set of competencies relative
to certain application methods.
Soil fumigation is a complicated process, and involves highly toxic
pesticide products that can cause acute, severe injury to the
applicator, handler, bystanders, or the environment if not used
properly. Given the increased potential for harm to human health and
the environment, EPA proposes to establish soil fumigation categories
for private and commercial applicators. Under the re-registration
decisions for the soil fumigants (Refs. 38, 39, 40 and 41), additional
soil fumigation-specific training is required for applicators certified
to use RUPs registered for use as soil fumigants due to their increased
potential for harm. Because there was no generally applicable
requirement or standard of competence for soil fumigation, EPA required
each registrant to develop and implement a soil fumigant training
program. In discussing this approach with States, EPA recognized that
an applicator certification category specific to soil fumigation with a
single, uniform set of criteria would be less burdensome than requiring
separate, registrant-sponsored trainings for each soil fumigation
product. States have requested that EPA consider requiring all
applicators using soil fumigants to be certified in a single, soil
fumigation category in lieu of each product's labeling requirement for
registrant-sponsored training (Ref. 42). The labeling for soil
fumigants provides the option for applicators to qualify to purchase
and use these products either by attending the registrant training
specified on the labeling for each specific chemical or by being
certified in a soil fumigation category that covers all active
ingredients and meets the competency standards approved by EPA.
Recognizing the potential risks from soil fumigants and the importance
of applicator competency, EPA worked with State regulators, cooperative
extension personnel, soil fumigant applicators, and industry to develop
a training manual and exam item bank (database of questions related to
soil fumigation that can be used on a certification exam) that States
can use for certification of applicators performing soil fumigation
(Refs. 43 and 44).
Under the proposal, commercial applicator certification in the soil
fumigation category would require the applicator to demonstrate
competency in soil fumigation by passing a written exam and to hold
concurrent certification in each of the pest control categories in
which he or she intends to conduct this type of application, e.g.,
agricultural pest control--plant; ornamental and turf pest control;
forest pest control; right-of-way pest control; regulatory pest
control; or demonstration and research. Private applicator
certification in soil fumigation would require the applicator to
demonstrate competency by passing a written exam or completing a
training program covering the proposed competency standards for soil
fumigation (proposed at 40 CFR 171.105(c)(1)) in addition to holding a
valid general private applicator certification.
Other (non-soil) types of fumigation require different techniques
and training than soil fumigation, but have similar potential to harm
the applicator, the environment, and the public. For example, although
fumigation of a shipping container requires different application
equipment, monitoring strategy, and mitigation of environmental
concerns than soil fumigation, both types of fumigation can cause
acute, severe injury to the applicator, handler, bystanders, or the
environment if not conducted properly. Given the high potential for
harm to human health and the environment, EPA proposes to add non-soil
fumigation application method-specific certification categories for
private and commercial applicators. Commercial applicator certification
in the non-soil fumigation category would require the applicator to
demonstrate competency in non-soil fumigation by passing a written exam
and to hold concurrent certification in each of the pest control
categories in which he or she intends to conduct this type of
application, e.g., agricultural pest control--plant; forest pest
control; ornamental and turf pest control; seed treatment; aquatic pest
control; industrial, institutional, structural, and health-related pest
control; public health pest control; regulatory pest control; or
demonstration and research. Private applicator certification in non-
soil fumigation would require the applicator to demonstrate competency
by passing a written exam or completing a training
[[Page 51374]]
program covering the proposed competency standards for non-soil
fumigation (proposed at 40 CFR 171.105(c)(2)) in addition to holding a
valid general private applicator certification.
Applying pesticides with a plane or helicopter poses a unique set
of risks and challenges to the applicator, bystanders, and the
environment. There is heightened concern for spray drift, elevated
potential for off-target applications and bystander exposure, and an
increased need for application equipment to be calibrated accurately.
Aerial applicators are required to comply not only with EPA regulations
for the application of pesticides, but also Federal Aviation
Administration requirements for pilots making applications using an
aircraft at 14 CFR part 137. Recognizing the potential risks and the
importance of applicator competency when performing aerial
applications, EPA worked with State regulators, cooperative extension
personnel, aerial applicators, and industry to develop a training
manual and exam item bank that States can use for certification of
aerial applicators (Ref. 45). The unique challenges posed by this
application method warrant establishing aerial application categories
for private and commercial applicators. Accordingly, in order for a
commercial applicator to make aerial applications of RUPs, the
commercial applicator would be required to demonstrate competency in
aerial application by passing a written exam and to hold concurrent
certification in each of the pest control categories in which he or she
intends to conduct aerial application, e.g., agricultural pest
control--plant; ornamental and turf pest control; forest pest control;
aquatic pest control; right-of-way pest control; public health pest
control; demonstration and research; or regulatory pest control.
Private applicator certification in aerial application would require
the applicator to demonstrate competency by passing a written exam or
completing a training program covering the proposed competency
standards for aerial application (proposed at 40 CFR 171.105(c)(3)) in
addition to holding a valid general private applicator certification.
Requirements for general private applicator certification in each
of the aforementioned application method-specific categories would
parallel the certification requirements proposed in Unit VI.B. Private
applicators would be required to either pass a written exam or complete
a training program for each application method-specific category that
covers the proposed competency standards and is approved by the
certifying authority. A person who does not have a general private
applicator certification would not be eligible for certification in any
of the application method-specific categories. These additional
categories of certification would provide a measure of assurance that
the private applicator has the specialized knowledge of application
methods, equipment, and the characteristics of the pesticides pertinent
to a specific category to use the pesticide without generally causing
unreasonable adverse effects.
The regulatory text for the proposed commercial applicator
application method-specific categories would be located at 40 CFR
171.101(b). The regulatory text for the proposed private applicator
application method-specific categories would be located at 40 CFR
171.105(c).
5. Costs. The cost estimates are broken out by each category for
private and commercial applicators (Ref. 3). As discussed in Unit
VI.B., EPA plans to support the development of exams and manuals for
the proposed application-method specific categories, which should
reduce the overall burden to States associated with this proposal. EPA
has already developed and made available to State certification
agencies free of charge training manuals and exam item banks for the
aerial and soil fumigation categories. States that elect to use the
EPA-developed materials would incur minimal development costs; however,
the costs below reflect the full estimated cost to States and do not
include EPA assistance in developing exams and manuals. EPA expects the
actual costs to States would be lower (Ref. 3).
i. Private applicators. EPA estimates the cost of adding a private
aerial category to be about $2,000 annually, which reflects the
aggregate cost to all affected private aerial applicators (Ref. 3). The
low cost to applicators reflects the number of existing private
applicators certified in aerial application and the low estimated
number of new private applicators seeking aerial certification. The
costs to States to develop and administer exams or training for
certification would be about $108,000 annually for the first 2 years of
implementation (Ref. 3). Most of this cost would be borne within the
first two years to develop the exams and recognizes that nationally
developed materials will be available for States to adapt for their own
programs.
EPA estimates that adding a soil fumigation category for private
applicators would not result in any additional cost to private
applicators. The labeling for soil fumigation products already requires
applicators to either participate in registrant training for each
product or to be certified in a State soil fumigation category.
EPA estimates that the cost of adding a non-soil fumigation
category for private applicators to be about $78,000 annually, which
reflects the aggregate cost to all affected private applicators
conducting non-soil fumigation (Ref. 3). The estimate represents the
private applicators' opportunity cost of time spent in training or
preparing for and taking the certification exam.
EPA estimates that the costs to States to develop and administer
exams or training for certification in the soil and non-soil fumigation
categories would be $197,000 annually for the first 2 years of
implementation.
ii. Commercial applicators. EPA estimates the cost of adding an
aerial category for commercial applicators to be about $98,000
annually, which reflects the aggregate cost to all affected commercial
aerial applicators (Ref. 3). The low cost to applicators reflects the
number of States that already require commercial applicators to obtain
a specific certification to perform aerial application and the
relatively low number of applicators that seek certification in an
aerial category each year. The cost to States to develop a
certification exam for this category would be about $39,000 annually
for the first 2 years after implementation (Ref. 3).
EPA estimates that adding a soil fumigation category for commercial
applicators would not result in any additional cost to commercial
applicators (Ref. 3). The labeling for soil fumigation products already
requires applicators to either participate in registrant training for
each product or to be certified in a State soil fumigation category.
EPA estimates the cost of adding a non-soil fumigation category for
commercial applicators to be about $131,000 annually, which reflects
the cost to all affected commercial applicators conducting non-soil
fumigation (Ref. 3). Many States already require commercial applicators
to be certified in either general fumigation, soil fumigation, or
another type of fumigation. However, the cost to add this category is
higher than for other commercial applicator categories proposed because
most States do not already have categories for both soil and non-soil
fumigation.
The costs to States to develop non-soil fumigation certification
exams would be about $30,000 per year for the first 2 years following
implementation (Ref. 3).
[[Page 51375]]
6. Alternative options considered by EPA but not proposed. The
Agency considered six alternatives to the proposed requirement.
i. Specify a certain number of training hours for private
applicator certification in these categories. EPA considered requiring
private applicators to complete a specific number of hours of training
(either 4 or 8 hours) or to pass an exam in order to become certified
in an application method-specific category. As discussed above in Unit
VI.B., it is not clear that a mandatory minimum length for private
applicator certification training programs would not ensure specific
competency.
ii. Continue to rely on label-specific risk mitigation to address
elevated risks associated with certain application methods. EPA
considered relying on imposing risk mitigation measures through
labeling, limiting the use of high risk products or higher risk
application methods. This approach would be implemented on a case-by-
case basis and not directly linked to pesticide applicator
certification programs. The Agency learned that applicators, States,
and cooperative extension service programs did not support this
approach and faced significant burdens when this approach was used to
regulate soil fumigants (Refs. 46, 47, 48 and 49). Based on the adverse
reaction and impact to States, as well as the need to promote
applicator competency and national consistency, EPA decided not to
propose this option. It is reasonable to expect that adding categories
at the Federal level to cover many types of pesticides applied by
specific mechanisms would be more efficient than imposing similar but
not identical requirements on each pesticide label.
iii. Consolidate soil fumigation and non-soil fumigation into a
single fumigation category. To reduce the burden on State certification
authorities and applicators who perform both types of fumigation
applications, EPA considered proposing a single general fumigation
concurrent category instead of separate soil and non-soil fumigation
concurrent categories. The knowledge and skills necessary to perform
soil fumigation and non-soil fumigation differ substantially. In
addition, there are significant differences in risks to the applicator
and environmental concerns between the two methods for applying
fumigants. The reregistration decisions on the soil fumigants
highlighted the specific use conditions and risk mitigation measures
necessary to apply soil fumigants without unreasonable adverse effects,
not necessary restrictions for applications of all fumigants. Combining
these related categories may reduce the burden on certifying agencies
and on some applicators; however, applicators who perform only soil
fumigation or only non-soil fumigation would receive less instruction
specific to their particular application method and more instruction
than they wish on a method for which they may have no use. In order to
ensure that applicators have a level of competency in the applicable
application method proportional to the potential risk, EPA decided not
to propose a general fumigation category.
iv. Add application method-specific standards as subcategories
under the existing commercial applicator categories. EPA considered
adding the categories discussed in this Unit as subcategories under the
applicable existing commercial applicator pest control categories. For
example, a person seeking to perform aerial application to agricultural
fields and forests, and for mosquito control would have to take an
aerial exam specific to each of these categories. This would require
creating subcategories under almost every pest control category. An
applicator would have to be certified not only in each relevant pest
control category, but also in a subcategory under each in order to use
a specific application method. Application method-specific
certification requirements as proposed are expected to impose a lower
burden on applicators seeking certification, e.g., one aerial method-
specific certification exam rather than separate aerial subcategory
exams under agricultural plant, forest, and aquatic pest control. The
competency necessary to employ a specific application method, i.e.,
soil fumigation, non-soil fumigation, or aerial pest control, does not
appear to vary substantially based on where the application occurs. For
example, an applicator performing soil fumigation needs to know the
same techniques and safety measures whether doing it in for a field
crop or for ornamental pest control. Therefore, EPA decided not to
propose the application method-specific certification as subcategories
under the commercial applicator pest control categories.
v. Add an application method-specific category for chemigation.
Chemigation, i.e., application of pesticides through irrigation
systems, has a higher potential for environmental contamination if not
conducted properly and poses additional risks to the applicator or
those working under the applicator's direct supervision due to the
nature of the equipment. Chemigation can contaminate ground and
drinking water that flow directly into a water supply, if uncalibrated
equipment causes application over the rate specified on the labeling,
or improperly maintained equipment leaks treated water from the
chemigation system. Applicators need to be knowledgeable about the
equipment specific to chemigation necessary to prevent contamination of
groundwater, including but not limited to anti-backflow devices,
injection pumps, storage tanks, safety valves, anti-pollution devices,
and calibration devices. In addition, applicators should be
knowledgeable about the risks, benefits, and necessary precautions
associated with chemigation in order to protect themselves before,
during, and after the application. EPA considered adding an application
method-specific category to perform chemigation; however, very few
States have added a specific category for this application method and
very few incidents involving this application method have been reported
to EPA. Absent more persuasive evidence that chemigation is causing
adverse effects that could be mitigated through a demonstration of
competency by applicators who use this application method, EPA is not
proposing this as an application method-specific category at this time.
vi. Add a ``limited use'' category. EPA considered adding a
category for commercial applicators who would be certified for limited
uses of specific RUP pesticides or in niche application scenarios. For
example, some States require applicators to be certified to perform
sewer line root control, wood treatment, biocide use in hydraulic
fracturing (commonly called ``fracking''), or use of horse
sterilization products. These types of applications require use of a
single product or very limited set of products and specific application
techniques. Frequently, the industry in which these applications are
made (e.g., fracking) provides training to applicators on proper use of
the product(s) and other specific information related to use in the
specific situation. However, applicators often have to be certified by
taking the core exam, a category exam (e.g., industrial, institutional,
structural, and health-related pest control), and an additional exam
for the limited use subcategory (e.g., sewer line root control),
although they will only be performing specific applications and using a
few products. This places a substantial burden on applicators to
demonstrate competency related to types of applications they will not
perform. It also places a burden on States to maintain an
infrastructure to
[[Page 51376]]
address the needs of niche applicator populations.
Some States have developed and updated exams and training programs
in these limited use categories that have fewer than 10 certified
applicators. Other States handle limited use applicators differently.
They require commercial applicators to pass the core exam,
demonstrating competency in basic environmental safety; reading,
understanding, and following pesticide labeling; calculating
application rates; and other general application techniques. The State
relies on the industry to provide the necessary training related to the
limited use. The State clearly marks on the applicator's certification
credential that the applicator is only certified for the purchase and
use of a limited subset of products, not all RUPs. States that follow
the second approach described above note they are confident that
applicators are prepared to conduct applications in a manner that will
protect themselves, the public, and the environment.
EPA considered adding a ``limited use'' category for commercial
applicators that would allow States and applicators to reduce the
burden associated with maintaining certification categories for few
applicators performing specific applications. Commercial applicators
must demonstrate competency in core and for the specific category in
which they intend to use RUPs. To address the need for category-
specific certification for applicators performing ``limited use''
applications of RUPs, EPA considered three options, other than a
category-specific exam. First, the applicator could be required to
comply with industry-provided training or certification requirements as
specified on the product labeling. This is similar to the requirements
for people who treat water using chlorine gas--the labeling requires
the applicator to use the product in accordance with a manual from The
Chlorine Institute that details proper use of the product and safety
procedures. Second, the applicator could be required to hold applicable
State or Federal professional credentials in addition to passing the
core exam. For example, a plumber performing sewer line root control
who uses a specific RUP as part of his services could be required to
pass the core exam and to hold a State-issued plumbing license to
demonstrate his competency to use the specific RUP safely in the
limited circumstance. Third, the applicator could demonstrate
competency as required by a specific product's labeling. For example,
the labeling for sodium fluoroacetate (Compound 1080 used in livestock
protection collars) details specific competency standards that the
applicator must meet to use the product; certifying authorities that
allow use of this product must develop a specific certification
category that covers the labeling-based requirements.
A commercial applicator seeking certification in a limited use
category would be required to demonstrate competency by passing the
core exam and satisfying one of the category-specific methods described
in this Unit. The applicator's certification would be limited only to
the specific uses related to his certification. EPA would require that
the certifying authority ensure that any certification documentation,
e.g., a license, clearly note the limited set of RUPs available for
purchase and use by an applicator certified in a limited use category.
EPA is actively seeking additional information from States,
applicators, and industry on the value of a limited use category and
will consider any public comments received in deciding whether to
include this type of category in the final rule.
7. Request for comment. EPA specifically requests comment on the
following questions:
Would the proposed categories adequately establish
competency for the specified application methods?
Should EPA consider adding or deleting any of the proposed
private applicator application method-specific certification
categories? If so, which category(ies) and why?
Please provide feedback on the proposed competency
standards for private applicators in each of the application method-
specific categories. Do the proposed standards contain sufficient
detail? Are there any elements of these types of application that are
not covered adequately?
Should EPA consider adding or deleting any of the proposed
commercial applicator application method-specific certification
categories? If so, which category(ies) and why?
Should EPA require that commercial applicators be
certified in one or more pest control categories in order to be
certified in one of the application method-specific certification
categories? If so, please specify which other categories should be
considered prerequisites for each application method-specific
certification (in addition to those proposed) and explain why.
Should EPA add an application method-specific
certification category for chemigation? If so, why? Please provide any
data about chemigation that would support the addition of a chemigation
certification category.
Should EPA consider adding any categories (not application
method-specific) for commercial applicators? If so, which category(ies)
and why?
Please provide feedback on adding a ``limited use''
category for commercial applicators. Would the proposed options for
category-specific demonstrations of competency for limited use
certification minimize burden on applicators and State certification
authorities while ensuring that RUPs are applied in a manner that would
not cause unreasonable adverse effects on human health or the
environment? Are there other options for offering a limited use
certification for certain RUPs that EPA has not considered? If so,
please describe.
Please provide any relevant information on how the
regulation could best balance flexibility and uniformity of the
certification categories used in different jurisdictions.
Are the competencies necessary to treat bee hives
adequately covered in the agricultural pest control--animal category?
If not, please explain why this category does not ensure that
applicators are competent to use RUPs to treat bee hives and provide
alternatives to ensure that applicators are competent to use RUPs in
this manner.
What were the impacts of EPA's decision to make soil
fumigants restricted use on state certification programs and on the
number of certified applicators? Would states expect a similar impact
if the proposed application method-specific categories are included in
the final rule?
For entities that have already developed certification
requirements for persons using soil fumigants, please provide a
description of the costs incurred.
VIII. Establish Predator Control Categories for Commercial and Private
Applicator Certification
1. Overview. In order to address the specific risks and competency
requirements associated with the use of predator control products and
to formalize the existing labeling-based requirements for specific
certification to use these products, EPA proposes to add categories for
both private and commercial applicators to use two mammalian predator
control methods: Sodium fluoroacetate (Compound 1080 used in livestock
protection collars) and sodium cyanide in an M-44 device.
2. Existing regulation. The existing regulation does not have
categories for
[[Page 51377]]
the use of sodium fluoroacetate in livestock protection collars or
sodium cyanide in an M-44 device. Registration decisions for these
products have established specific competency standards and require
applicators to be competent in how to use the products properly (Refs.
50 and 51).
3. Stakeholder information considered by EPA. Sodium fluoroacetate
is a highly acutely toxic predacide used to control coyotes that prey
on sheep and goats. Currently registered end-use products are injected
into the rubber reservoirs of livestock protection collars (LPC). These
collars are strapped to the throats of sheep or goats. Coyotes
attempting to attack livestock wearing LPCs are likely to puncture the
LPCs and be fatally poisoned by sodium fluoroacetate as a result.
Sodium fluoroacetate is highly toxic to humans and to non-target
mammals. No antidote exists for sodium fluoroacetate.
Sodium cyanide dispensed through an M-44 device is another highly
toxic predacide that poses extreme risks to humans and non-target
mammals. M-44 is an ejector device used to dispense sodium cyanide as a
single dose poison to control predators of livestock, poultry, or
Federally-designated threatened or endangered species, or those that
are vectors of communicable diseases. EPA has registered this product
for use in pastures, range land, and forests, only by trained and
certified applicators under the direct supervision of a government
agency.
4. Details of the proposal/rationale. EPA proposes to establish
predator control categories for commercial applicators and private
applicators, codifying the current standards of competency outlined in
the specific registration decisions for each of these pesticides. Based
on the extreme risks posed by the use of sodium fluoroacetate in
livestock protection collars and sodium cyanide dispensed through M-44
devices, EPA only grants registrations to State, Tribal, and Federal
agencies. EPA's existing registrations of these products prohibit their
use except by applicators who meet certain criteria. Each registration
decision outlines specific competencies the applicator must demonstrate
and the process that must be used to certify applicators of these
products. EPA is adding specific categories to the rule to codify the
competency standards established by the products' labeling and to
facilitate the adoption of a certification category in areas where
these products are used.
The predator control categories for commercial applicators will be
located at 40 CFR 171.101(a)(10) and the categories for private
applicators will be located at 40 CFR 171.105(b).
5. Costs. EPA estimates that this proposal will not impose any
additional costs because the labeling requirements of sodium
fluoroacetate and sodium cyanide predator control products already
establish competency standards and require specific certification to
use these products (Ref. 3). It is reasonable to expect that the costs
associated with this proposal are de minimus because it merely codifies
in the regulation the requirement already imposed through the products'
labeling.
6. Request for comment. EPA requests comment on the proposed
addition of pest control categories for certification to use sodium
fluoroacetate in livestock protection collars and sodium cyanide
dispensed through an M-44 device.
IX. Establish Requirements To Ensure Security and Effectiveness of Exam
and Training Administration
1. Overview. In order to address concerns that administration of
pesticide applicator exams and trainings currently affords opportunity
for cheating or fraud, and to maintain the integrity of exams, EPA
proposes to add requirements for those seeking certification or
recertification to present identification at the time of the exam or
training session. EPA also proposes to codify the existing policy that
all certification exams be closed book and proctored (Ref. 52).
2. Existing regulation. The rule establishes that commercial
applicators must demonstrate competence by passing written exams, and
as appropriate, through performance testing. 40 CFR 171.4(a). Private
applicators may demonstrate competency through a written or oral exam,
or other method established by the State and approved by EPA. 171.5(b).
The rule does not have requirements for verification of the identity of
persons seeking certification or recertification or for exams to be
proctored.
3. Stakeholder information considered by EPA. States have varying
requirements for exams because there are no minimum standards for exam
development and administration. Some States place a priority on
developing content-relevant exams and administering them in a secure
manner, while other States allow candidates to bring notes and manuals
into the exam which may undermine the competency determination process.
EPA is aware of at least one situation in which a State offered a
practice test in the study materials and administered exactly the same
exam for certification. In cases where exam security is not
implemented, the integrity of the entire certification process can be
compromised.
CTAG recognized the gap in security in the applicator certification
program and developed the Exam Administration and Security Procedures
Manual (Ref. 53). This document recommends practical ways for States to
ensure the integrity of their applicator certification exams, including
establishing chain of custody requirements, treating exam booklets and
answer sheets as controlled documents, proctoring exams, implementing
security requirements such as checking all booklets for missing pages
before releasing exam candidates, and not allowing candidates to bring
in or remove scratch paper from the exam room. States invest
significant resources in developing and administering exams for
applicator certification. A breach in security, such as a person taking
an exam booklet from the test site or copying questions and answers on
scratch paper and sharing them with others, compromises the exam's
integrity and could require the State to invest substantial resources
to develop another exam. Many States have consulted CTAG's document to
incorporate elements of exam security into their certification
programs.
States have recognized the need to ensure that the candidate
pursuing certification by exam or training or attending a
recertification session is the person seeking or currently holding a
certification. CTAG recommended that EPA require positive
identification of candidates for pesticide certification exams before
the exam is issued and before any credentials are issued, noting that
the lack of such a requirement ``calls into question the integrity of
the entire certification system and provides opportunity for abuse''
(Ref. 54). CTAG suggests that States that do not currently ask for any
form of identification before administering exams review their
policies, regulations, and laws and consider adopting a mechanism to
verify the identification of all individuals taking their exams. CTAG
also recommended that States verify the identity of certified
applicators attending recertification training sessions (Ref. 55).
Based on an EPA review of State program data, 36 States require
persons seeking commercial certification to present identification
prior to taking the exam and 27 States have a similar requirement for
private applicators seeking certification through an exam or training.
Similarly, 22 States require
[[Page 51378]]
commercial applicators to present identification at recertification
training sessions or exams, and 29 States require the same for private
applicators (Ref. 3). Many States seem to recognize the importance of
maintaining the integrity of the pesticide applicator certification and
recertification programs, evidenced by the number of States that have
adopted a requirement to verify the identity of candidates.
States have raised the need for a standard definition of closed-
book exams to ensure that certifying authorities using EPA-developed
exams or sharing a State-developed exam with another State have
confidence that the exam administration would meet a consistent
security standard. CTAG recommended that EPA require States using the
EPA-developed exams to agree to administer them as closed-book exams,
meaning the candidate cannot bring in any materials, e.g., study
manuals, notebooks, or scrap paper. Any materials necessary, apart from
non-memory calculators and writing utensils, e.g., scratch paper or
reference pesticide labeling, would be provided by the proctor and
collected at the end of the exam. CTAG believes this would help
preserve the integrity of the exam process and give confidence that the
security of EPA-developed exams is not compromised by varying
administration standards across States.
4. Details of the proposal/rationale. The Agency proposes to
require that applicator certification exams for initial certification
and recertification be closed book, proctored, and that the identity of
each test taker be verified. The identity of the applicant must also be
verified where the State or other agency certifies or recertifies
applicators based on training rather than an exam. EPA considers these
requirements essential elements of the certification process because
exams and training programs are the means used to assure that those who
are seeking to become certified have adequate training and experience
to use RUPs without causing unreasonable adverse effects. It is also
reasonable to expect that these security requirements would give States
confidence that exams are administered consistently across the country
in such a way to ensure their integrity.
The Agency proposes to require that exams be ``closed book,'' that
is, the test taker would not be allowed to use any materials, for
example notes or study guides, other than the materials provided by the
test administrator during the exam. EPA is proposing this requirement
for two reasons. First, a closed-book exam provides a more reliable
gauge of the individual test taker's competency because the outcome
depends more directly on the test taker's personal knowledge and
understanding than does an exam where the test-taker may refer to his
or her own notes or other study aids. Second, limitations on outside
materials reduce the likelihood of test takers copying questions and
removing them from the exam room to share with subsequent test takers.
Implementing closed-book exams is one step towards improving exam
security and the competency of certified applicators.
EPA proposes to require that proctors:
Verify the identity and age of persons taking the exam by
checking identification as required under the proposed rule and have
examinees sign an exam roster.
Monitor examinees throughout the exam period.
Instruct examinees in exam procedures before beginning the
exam.
Keep exams secure before, during, and after the exam
period.
Allow only examinees to access the exam and allow such
access only in the presence of the proctor.
Ensure that examinees have no verbal or non-verbal
communication with anyone other than the proctor during the exam
period.
Ensure that no copies of the exam or any associated
reference materials are made and/or retained by examinees.
Ensure that examinees do not have access to reference
materials other than those that are approved by the certifying
authority and provided by the proctor.
Review reference materials provided to examinees when the
exam is complete, to ensure that no portion of the reference material
has been removed or destroyed.
Report to the certifying authority any exam administration
inconsistencies or irregularities, including but not limited to
cheating, use of unauthorized materials, and attempts to copy or retain
the exam.
Comply with any other instructions required by the
certifying authority related to exam administration.
EPA proposes to prohibit a proctor from seeking certification at
any exam session that he or she is proctoring. Where applicator exams
require use of resource materials (for example, requiring the candidate
to identify pests based on depictions of plant damage, interpret
specific labels, or demonstrate other skills or abilities beyond the
core requirements), the proctor would provide the necessary materials
(e.g., sample labeling, reference books) and collect them after the
exam is completed.
Finally, EPA proposes a requirement for States to ensure that test
or training administrators verify the identity of persons seeking
initial applicator certification and recertification. Many
organizations and institutions require a person taking a test for
possible employment to present valid, government-issued photo
identification. It is important that pesticide applicator candidates
are required to present valid photo identification when they sit for
the exam, receive their credentials, and purchase RUPs. This
requirement would help to ensure that the person who takes the exam is
the same person who receives the certification, which could help
prevent a candidate from sending a more qualified or prepared person to
take the exam under his name, and to verify that the candidate meets
the minimum age requirement. See Units XII. and XIII. Preventing abuse
of the exam process is necessary to ensure the integrity of the exams
and that certified applicator credentials are issued only to those who
are qualified and certified as competent. Without such assurance,
classification for restricted use offers an uncertain level of
protection.
If finalized, the requirements for initial certification
administration security would be located at 40 CFR 171.103(a) for
commercial applicators and at 40 CFR 171.105(e) for private
applicators. The requirement for recertification administration
security would be located at 40 CFR 171.107(b).
5. Costs. Not all States or applicators would be expected to incur
costs to implement the aforementioned proposals. For those that do, EPA
expects the incremental costs to come into compliance would be minimal
(Ref. 3). Many States already check identification at initial
certification events and already have proctors for some sessions. The
aspects of a secure exam--written, closed-book, proctored, and
requiring positive identification of the candidate--would provide the
benefit of maintaining the credibility of the certification program, as
well as to filter out unqualified candidates.
6. Alternative options considered by EPA but not proposed. EPA
considered imposing only a requirement to verify the identity of the
initial certification and recertification candidates and not codifying
the existing policy that requires exams to be proctored and closed
book. A requirement to verify a certification or recertification
candidate's identity implemented independently of other exam security
requirements could lead to a potential improvement because by verifying
that the candidates are the same person seeking the certification,
false
[[Page 51379]]
attendance at training and exam sessions should decrease. It is also
more likely that credentials would be issued to the same candidate that
demonstrated competency. However, it is reasonable to expect that the
additional burden of implementing closed-book, proctored exams would
have substantial additional benefits by ensuring the security of the
exams, reducing burden on certifying authorities to update exams after
security breaches, and limiting instances where candidates taking an
exam can cheat. It is reasonable to expect that the potential benefits
of requiring proctored, closed-book exams are sufficient to justify the
burden.
7. Request for comment. EPA requests comments on the following:
Should EPA consider allowing an exception to the
requirement for candidates to present a government-issued photo
identification? If so, under what circumstances? Please provide
examples of how an exception could be implemented.
Should EPA consider any other requirements to improve the
security and integrity of applicator certification and recertification
exams? If so, please describe.
X. Strengthen Standards for Noncertified Applicators Working Under the
Direct Supervision of Certified Applicators
A. Enhance Competence of Noncertified Applicators Working Under the
Direct Supervision of a Certified Applicator
1. Overview. To improve the protection of noncertified applicators
and to reduce the chance for RUP applications to cause unreasonable
adverse effects, EPA proposes to require that noncertified applicators
working under the direct supervision of a certified applicator receive
annual training that covers pesticide labeling, safety precautions,
application equipment and techniques, environmental concerns, health
effects of pesticide exposure, decontamination, emergency response, and
protection of the applicator and the applicator's family. The Agency
also proposes exemptions to this training requirement for persons
qualified as a trained handler under the WPS or who have passed the
core exam covering general standards of competency for commercial
applicators, and to require periodic retraining or retesting.
2. Existing regulation. FIFRA section 2(e)(4) provides that a
noncertified applicator using an RUP must be competent and working
under the direction of a certified applicator. The certified applicator
must be available when needed but does not need to be present
physically at the application.7 U.S.C. 136(e)(4). The regulation
establishes: General requirements for the certified applicator to
demonstrate a practical knowledge of Federal and State supervisory
requirements; that when the certified applicator will not be present
during application, he or she must provide instruction to the
noncertified applicator, including instructions for proper pesticide
applications and how to contact the certified applicator if necessary;
and that certain labeling-specific restrictions require the certified
applicator to be physically present for the application. 40 CFR
171.2(a)(28) and 171.6.
3. Stakeholder information considered by EPA. The need to upgrade
the requirements for the supervision of a noncertified applicator by
the certified applicator was a major recommendation of the SFIREG 1985
Taskforce report (Ref. 29). The Taskforce concluded that the existing
requirements at 40 CFR 171.6 are general in nature and have resulted in
some instances where supervision of the noncertified applicator is
conducted from locations far removed from the application site. The
issue has also been raised to EPA by the PPDC Worker Safety Workgroup
and by States at the Pesticide Regulatory Education Program (PREP),
which provides an avenue for information sharing between States and EPA
about pesticide regulatory issues and programs (Ref. 33). While some
States have imposed more stringent supervision requirements or
eliminated the option for application of RUPs by noncertified
applicators under the direct supervision of a certified applicator,
other States' standards are similar to the existing requirement at 40
CFR 171.6.
4. Details of the proposal/rationale. EPA proposes to enhance
protections for noncertified applicators, i.e., those who use RUPs
under the direct supervision of a certified applicator, and to ensure
that RUPs are used in a manner that does not pose unreasonable adverse
effects to the applicator, bystanders, or the environment by: Expanding
the training content, offering alternatives to the training
requirement, and requiring periodic retraining.
i. Expanding training content. Noncertified applicators have a
similar work profile to agricultural handlers under the WPS (40 CFR
part 170); both are permitted to mix, load, and apply pesticides with
proper guidance from their employer or supervisor. In order to mix,
load or apply RUPs, however, all noncertified persons, including
agricultural handlers, must be working under the direct supervision of
a certified applicator. Agricultural handlers must receive training
that covers self-protection; hazards associated with pesticide use;
format and meaning of pesticide labeling; protection from take home
exposure to family members; proper pesticide use, transportation,
storage, and disposal; and protections required under the WPS. 40 CFR
170.230(c)(4). In addition, agricultural handlers must be provided a
copy of the labeling and any other information necessary to make the
application without causing unreasonable adverse effects. The existing
part 171 regulation does not require that noncertified applicators
receive similar training before applying RUPs under the direct
supervision of a certified applicator.
To foster a level of competency appropriate to the responsibilities
of noncertified applicators who apply RUPs under the direct supervision
of a certified applicator and comparable to the competency currently
required of agricultural pesticide handlers, EPA proposes to add the
following training requirements for noncertified applicators:
a. Training on information, techniques, and equipment that
noncertified applicators need to protect themselves, other people, and
the environment before, during, and after making a pesticide
application, including all of the following:
Format and meaning of information contained on pesticide
labels and in labeling, including safety information, such as
precautionary statements about human health hazards, and hazards of
pesticides resulting from toxicity and exposure, including acute and
chronic effects, delayed effects, and sensitization.
Routes by which pesticides can enter the body.
Signs and symptoms of common types of pesticide poisoning.
Emergency first aid for pesticide injuries or poisonings.
How to obtain emergency medical care.
Routine and emergency decontamination procedures.
Need for, and appropriate use of, personal protective
equipment.
Prevention, recognition, and first aid treatment of heat-
related illness associated with the use of personal protective
equipment.
Safety requirements for handling, transporting, storing,
and disposing of pesticides, including general procedures for spill
cleanup.
Environmental concerns such as drift, runoff, and wildlife
hazards.
[[Page 51380]]
b. Training on all of the following elements, which noncertified
applicators need to protect their families from pesticides:
Warnings against taking pesticides or pesticide containers
home.
Washing and changing work clothes before physical contact
with family.
Washing work clothes separately from the family's clothes
before wearing them again.
Heightened precautions required to protect children and
pregnant women.
c. Training on how to report suspected pesticide illness to the
appropriate State agency. The proposed training requirements would
promote the competence of noncertified applicators who apply RUPs under
the direct supervision of a certified applicator by improving their
understanding of pesticide labeling, application methods, self-
protection, risk mitigation, and general pesticide safety principles.
It is reasonable to expect that an understanding of this information,
together with the specific instructions for each application from a
certified applicator, would provide noncertified applicators with an
adequate level of competency to use RUPs without causing unreasonable
adverse effects, consistent with the FIFRA requirement that
noncertified applicators be competent.
ii. Offering alternatives to the training requirement. In addition
to the training proposed in Unit X.A.4.i., EPA proposes to offer two
alternative mechanisms for establishing the competency of noncertified
applicators who apply RUPs under the direct supervision of a certified
applicator: Demonstrating that the noncertified applicator has met the
handler training requirements of the WPS (40 CFR 170.230 of the current
WPS or 40 CFR 170.201(c) of the proposed revisions to the WPS) or
passing the exam on core standards of competency for certified
commercial applicators (currently 40 CFR 171.4(b)).
As mentioned in this unit, noncertified applicators working on
agricultural establishments and agricultural pesticide handlers have
similar job responsibilities. The proposed training for noncertified
applicators mirrors the proposed training for agricultural pesticide
handlers, except it does not include specific requirements of the WPS.
Including a provision in the rule to allow noncertified applicators to
meet the training requirement by following the training outlined in
this rule or that outlined in the WPS could reduce the burden on
noncertified applicators, certified applicators, agricultural pesticide
handlers, and agricultural employers by allowing them to provide
substantially similar training to the same audience once, rather than
twice, to comply with both regulations. EPA estimates that almost two-
thirds of the noncertified applicators under the direct supervision of
private applicators will receive WPS training but very few noncertified
applicators under the direct supervision of commercial applicators
would be covered by WPS training provisions.
The second alternative mechanism, requiring noncertified
applicators to pass a written exam covering the core standards of
competency for commercial applicators, would also establish an adequate
level of competency for noncertified applicators. The commercial
applicator core competency standards outlined at 40 CFR 171.4(b) of the
existing regulation cover label and labeling comprehension, proper
application, potential environmental risks, characteristics of
pesticides, application equipment and techniques, and laws and
regulations. The content of these core competency standards encompasses
the proposed noncertified applicator training content. In some
situations, it may be easier or more convenient to allow a noncertified
applicator to qualify by taking the core exam than to complete the
noncertified applicator training. For example, a person who has taken
and passed the core exam and failed the category exam, which generally
has a lower pass rate, would not be certified as a commercial
applicator but would have demonstrated sufficient competency to apply
RUPs under the direct supervision of a certified applicator. Allowing
such a person to qualify as a noncertified applicator based on passing
the core exam rather than requiring that he or she undergo another
training program would reduce the potential burden on noncertified
applicators and their employers without sacrificing protection of the
noncertified applicators, the public, or the environment.
iii. Requiring periodic retraining. EPA proposes to implement a
requirement to refresh the qualifications of noncertified applicators.
Noncertified applicators who qualified through a training program,
either as proposed under 171.201(d) or as a handler under the WPS,
would be required to undergo retraining annually. Noncertified
applicators who recertify by passing the commercial applicator core
exam would be required to requalify every 3 years. The proposed
training requirement for noncertified applicators who would apply RUPs
under the direct supervision of a certified applicator is comparable to
the training required for agricultural pesticide handlers. EPA has
proposed a requirement under the WPS for handlers to receive pesticide
safety training annually. EPA will ensure that the final requirements
for noncertified applicator training under the certification rule are
consistent with the final requirements for WPS handler training where
applicable. It is reasonable to expect that noncertified applicators
must maintain an ongoing level of competency similar to that required
of certified applicators. However, neither of the options to qualify by
attending a training program requires passing a written exam or
attending a training course covering the proposed enhanced competency
standards for private applicators. Therefore, the proposed noncertified
applicator training programs would not provide the same assurance of
competency as the certification process for commercial and private
applicators. For these reasons, it is reasonable to expect that
noncertified applicators who qualify through training should receive
training every year rather than every 3 years as proposed for the
recertification of certified private and commercial applicators.
States require certified applicators to demonstrate continued
competency through recertification programs; noncertified applicators
who establish competency must also demonstrate that they maintain a
level of competency to apply pesticides without unreasonable adverse
effects. An annual training requirement would be consistent with the
proposed training interval for agricultural handlers (Ref. 4), thereby
decreasing the burden on agricultural employers to track two training
timeframes. Additionally, studies have shown that training participants
begin to forget the content of the training almost immediately, that
often 90% or less of the training is remembered at 1 year after
training, and that knowledge from training on skills and decision
making deteriorates more quickly than information from training on
repetitive physical tasks (Ref. 14). Further, studies have demonstrated
the effectiveness of periodic retraining on retention of the knowledge
necessary to implement self-protective measures (Ref. 15).
Noncertified applicators who qualify through passing the core exam
for commercial applicators would be required to requalify every 3
years. Passing the core exam provides an assurance of competency
similar to that required of certified applicators. Therefore, it is
reasonable to expect that noncertified applicators who pass the core
exam would maintain their
[[Page 51381]]
competency on the topics covered for a similar length of time as
commercial applicators. EPA is proposing a requirement for all
certified applicators to renew their credentials every 3 years.
The regulatory text related to these proposals would be located at
40 CFR 171.201(c) and (d).
5. Costs. Because noncertified applicators working under the direct
supervision of commercial applicators and private applicators have
different wage rates, the costs are presented separately for
noncertified applicators working under the direct supervision of a
commercial applicator and for noncertified applicators working under
the direct supervision of a private applicator (Ref. 3).
i. Noncertified applicators working under the direct supervision of
a commercial applicator. EPA estimates the cost of the proposed
requirement to require noncertified applicators to either complete the
proposed training, be handlers under the WPS, or pass the core exam
would be about $6.6 million per year for noncertified applicators
working under the direct supervision of a commercial applicator (Ref.
3).
ii. Noncertified applicators working under the direct supervision
of a private applicator. EPA estimates the cost of the proposed
requirement to require noncertified applicators to either complete the
proposed training, be handlers under the WPS, or pass the core exam
would be about $639,000 per year for noncertified applicators working
under the direct supervision of a private applicator (Ref. 3).
6. Alternative options considered by EPA but not proposed. EPA
considered four alternatives to this proposal.
i. Allow States to determine noncertified applicator training
content. EPA considered allowing each State to determine what training
or qualifications are appropriate for noncertified applicators, rather
than adhering to the standard established in this proposal. For
example, some States have specific requirements for noncertified
applicators to be qualified, such as through an apprenticeship program,
or completing a State-developed training program or minimum number of
hours of privately-provided training. Although the State programs with
various requirements may adequately ensure the competency of
noncertified applicators, allowing States to adopt varying standards
would result in classification for restricted use providing differing
levels of protection from State to State. In order to ensure that RUPs
are used by competent persons in a way that would not cause
unreasonable adverse effects, it is necessary for noncertified
applicators to receive instruction that covers a specific set of basic
competency information. The consistent minimum standard would not be
met if States adopted their own programs that did not meet or exceed
the standards proposed by EPA.
EPA recognizes that State programs may adequately prepare a
noncertified applicator to use pesticides effectively and without
unreasonable adverse effect on human health or the environment.
However, under the proposed option, States can modify existing programs
to ensure they cover the content and requirements of the proposed
standard and do not need a specific exception. If the State training
program provides instruction on the training requirements listed above,
the supervising certified applicator would still be required to verify
that the noncertified applicators working under his or her direct
supervision have received the training. The proposed option balances
flexibility for States to adopt more stringent standards with the need
to ensure that noncertified applicators meet a consistent standard of
competency.
ii. Require all noncertified applicators to pass the core exam. EPA
considered requiring all noncertified applicators to pass the core exam
for commercial applicator certification. The current requirements
concerning the core exam for commercial applicators covers all the
topics that would help ensure general knowledge of pesticide
application by noncertified applicators.
The Agency decided against proposing a requirement that
noncertified applicators demonstrate competence only by taking the core
exam for commercial applicators because in some instances, that
requirement may impose additional burden on the certified applicators
and the noncertified applicators. Some noncertified applicators may
have a more difficult time preparing for and passing a written exam
than meeting training requirements. Although noncertified applicators
may be able to demonstrate their competency to make applications
without unreasonable adverse effects with proper supervision, some
noncertified applicators may have literacy and language issues that
would stand in the way of passing a written exam. By limiting a
noncertified applicator's options for demonstrating competence to
passing a written exam, the number of noncertified applicators
available could decrease because fewer people would qualify. A decrease
in the number of noncertified applicators available would increase
costs because certified applicators would be required to perform the
applications themselves. In addition, States would have to administer
approximately five times the current number of exams, increasing their
administrative burden.
EPA decided not to propose this option because it would impose a
significant burden on noncertified applicators, the supervising
certified applicators, and the States, and the benefits associated with
the alternate options do not appear to justify the burden.
iii. Establish different standards for noncertified applicators
working under the direct supervision of commercial and private
applicators. EPA considered establishing separate standards for
noncertified applicators under the direct supervision of commercial and
private applicators. Under this alternative, noncertified applicators
working under the direct supervision of a private applicator would be
required to complete the proposed training or the training for handlers
under the proposed revisions to the WPS (Ref. 4). EPA considers this to
be the minimum level of training that could reasonably be expected to
prevent unreasonable adverse effects associated with the use of RUPs.
EPA considered requiring a higher level of training for noncertified
applicators working under the direct supervision of a commercial
applicator; specifically, EPA considered requiring them to pass the
core exam for certified applicators as described in the alternate
option discussed in this unit.
EPA decided not to propose this alternative for two reasons. First,
EPA does not believe there is a significant difference in the risks
faced by, or posed by, a noncertified applicator under the direct
supervision of a private applicator and a noncertified applicator under
the direct supervision of a commercial applicator. As the risks appear
to be the same, the same level of training seems appropriate. Second,
having a single standard would allow noncertified applicators to work
for both commercial and private applicators without having to meet
different standards.
iv. Implement longer retraining interval. Lastly, EPA considered
requiring all noncertified applicators to be retrained using the same
timeframes as certified applicator recertification (currently proposed
as every 3 years, see Unit XIV.). However, commercial applicators are
required to demonstrate their competency through a written exam; the
more rigorous standard establishes a higher level of confidence in
commercial applicators' knowledge and ability to protect themselves,
the public, and the environment. Training is a less reliable indicator
of competency
[[Page 51382]]
than passing an exam and knowledge from training deteriorates rapidly
(Refs.14 and 15). EPA recognizes a distinction between the noncertified
applicators that qualify through training and those that qualify
through an exam. That distinction and EPA's confidence in the exam
process prompted EPA to reject the option to establish the same
requalification timeframe for all noncertified applicators parallel to
the recertification period for certified applicators.
7. Request for comment. EPA requests specific feedback on the
following:
Should EPA allow States to adopt noncertified applicator
training programs different than what EPA proposes? If so, please
explain why, and how portability of the varied programs might be
addressed.
Should EPA require States to adopt the proposed
noncertified applicator training program and allow States to add other
qualifications or requirements?
Should EPA require noncertified applicators to receive
training specifically on avoiding harm to pollinators? If so, please
explain what additional information should be included in the training
and why.
Are there other points that EPA should include in the
noncertified applicator training outlined in the proposal? If so, what
points should be added and why?
Should EPA consider a single requalification interval for
all noncertified applicators, regardless of their method of
qualification, i.e., should EPA consider requiring noncertified
applicators who qualify by passing the core exam to requalify annually,
or for those who qualify by training to requalify every 3 years? Please
explain why.
Please provide any available data on or sources of
information for the number of noncertified applicators who apply RUPs
under the direct supervision of commercial and private applicators.
B. Establish Qualifications for Training Providers
1. Overview. In order to ensure that noncertified applicators
receive training that communicates the nature of their work and the
potential risks of pesticide exposure in a manner they understand, EPA
proposes to require that noncertified applicator training be provided
by a currently certified applicator, a State-designated trainer of
certified applicators, or a person who has completed a train-the-
trainer course under the WPS.
2. Existing regulation. The rule has no requirement for training
and therefore, no restrictions on who may provide training to
noncertified applicators.
3. Stakeholder information considered by EPA. Stakeholders,
including the PPDC, State associations, and CTAG, have noted the
similar work profiles between WPS handlers and noncertified applicators
working on agricultural establishments. They recommended that
noncertified applicator trainers have similar qualifications to WPS
handler trainers because of the importance of conveying information
related to safe pesticide use, understanding labeling requirements, and
how to contact the employer in the event of an emergency.
4. Details of the proposal/rationale. EPA proposes to allow
noncertified applicators to receive training from an applicator with a
valid certification issued under 40 CFR part 171, a State-designated
trainer of certified applicators, or a person who has completed a
pesticide safety train-the-trainer program under the WPS, 40 CFR part
170. Given the elevated risks associated with applying RUPs, it is
critical to have a high level of confidence in the competence of those
who will make applications. Commercial applicators have to pass a
written exam to demonstrate their competency. The qualifications of the
trainer become more important where the competency of noncertified
applicators is established through training rather than through passing
a written exam. It is important to have the information presented by
trainers who are knowledgeable about pesticide safety requirements.
Certified applicators supervising noncertified applicators have
knowledge of the information necessary to ensure that applications are
made effectively and without unreasonable adverse effects and
commercial applicators have passed an exam demonstrating their
competency. The core standards of competency for both private and
commercial applicators would cover supervising noncertified applicators
using RUPs, including how to convey information about proper
application techniques, understanding the labeling, and contacting the
supervisor if necessary. In addition, the competency standards would
cover communicating with noncertified applicators in a manner they
understand. State designated trainers, mainly cooperative extension
service pesticide safety educators and county agents, have expertise in
educating adult populations about how to conduct pesticide applications
and the risks associated with pesticide exposure. Lastly, trainers who
have undergone a train-the-trainer program have learned techniques to
effectively transfer information on application techniques, risks of
exposure, and other necessary information required to protect
agricultural handlers before, during, and after application. EPA
anticipates that most people likely to be training noncertified
applicators would already be within one of the aforementioned
categories of qualified trainers.
The regulatory text related to this proposal would be located at 40
CFR 171.201(d)(2).
5. Costs. EPA expects this proposal to have negligible cost.
Certified applicators are qualified as trainers by virtue of their
certification and would not incur any additional costs to be qualified
under this proposal (Ref. 3). EPA assumes most training would be
provided by certified applicators to noncertified applicators working
under their direct supervision. Therefore, EPA does not believe many
people who are not already certified applicators would seek to be
qualified trainers under this proposal. Allowing State-designated
trainers of applicators and those who have completed a WPS pesticide
safety train-the-trainer program would provide flexibility to the
certified applicators and offer a variety of options to ensure
noncertified applicators are trained.
C. Establish Qualifications for Certified Applicators Supervising
Noncertified Applicators
1. Overview. In order to ensure that noncertified applicators do
not apply RUPs in a manner that would cause unreasonable adverse
effects, EPA proposes to establish specific requirements for the
supervising applicator.
2. Existing regulation. The current regulation requires supervising
certified applicators to demonstrate a practical knowledge of Federal
and State supervisory requirements related to the application of RUPs
by noncertified applicators. 40 CFR 171.6(a). In addition, the current
rule requires the availability of the certified applicator and the
hazard of the situation to be directly related. 40 CFR 171.6(a). For
certain products, the labeling requires the applicator to be on-site
for the application or prohibits application by noncertified
applicators even under the direct supervision of a certified
applicator. Wherever noncertified applicators are applying RUPs under
the direct supervision of a certified applicator, the existing
regulation requires the certified applicator provide verifiable
instruction to the noncertified
[[Page 51383]]
applicator, which includes detailed guidance for applying the pesticide
properly, and provisions for contacting the certified applicator in the
event that he or she is needed. 40 CFR 171.6.
3. Stakeholder information considered by EPA. States indicated
overall support for establishing qualifications for certified
applicators supervising noncertified applicators; however they noted
that some limitations would be impractical or difficult to enforce
(Ref. 33). For example, States noted that they would not be able to
verify whether the supervising applicator was within a certain distance
or time of the noncertified applicator conducting the application, and
it would be impossible to note how many noncertified applicators were
working under the direct supervision of a certified applicator at one
time (Ref. 33). The SBAR panel recommended that EPA require
``communication capability between certified applicators and those
under their supervision during RUP applications'' (Ref. 34).
4. Details of the proposal/rationale. EPA proposes to require that
certified applicators who supervise noncertified applicators to be
certified in the category of the supervised application in order to
protect the noncertified applicator and the environment from risks
associated with insufficient supervision or qualification. EPA proposes
to require that certified applicators ensure that noncertified
applicators under their direct supervision have satisfied one of the
qualification methods discussed in Unit X.B. For specific applications,
EPA proposes to require the certified applicator to provide a copy of
all applicable labeling to each noncertified applicator for each
supervised application; ensure that means are available for immediate
communication between the certified applicator and the noncertified
applicators working under their direct supervision; provide specific
instructions related to each application, including the site-specific
precautions and how to use the equipment; and explain and comply with
all labeling restrictions.
It is critical that the supervising applicator be competent in the
specific types of application that he or she is supervising, know the
requirements related to application of RUPs by noncertified
applicators, and ensure that noncertified applicators are competent. It
is reasonable to expect that many supervising applicators currently
provide instruction to the noncertified applicators under their
supervision and are certified in the appropriate category. The proposed
change would codify more precise requirements to ensure that
supervising certified applicators are prepared adequately to supervise
specific types of applications and to provide the appropriate
protections to noncertified applicators.
EPA proposes to add a requirement for the certified applicator to
provide a copy of the labeling to noncertified applicators applying
RUPs under his or her supervision. Providing the product labeling to
noncertified applicators is important for several reasons. First,
product labeling communicates critical information to the pesticide
user on how to use and apply the product. The labeling contains use
directions, health and safety information, and instructions for proper
storage and disposal. By law, users must follow the use instructions on
the labeling for registered products. Second, in the event that the
noncertified applicator cannot contact the supervising applicator, the
labeling contains critical information that the noncertified applicator
or a literate person nearby could consult in order to understand
special use restrictions, make a proper application, or respond in the
event of a spill or accident, including providing proper medical
treatment. Third, the WPS requires employers to provide handlers access
to the product labeling during handling activities in order to provide
protections parallel to those provided under the Occupational Safety
and Health Act (OSHA). OSHA requires that persons with hazardous
chemicals in their work area receive information in the form of labels,
training, and access to safety data sheets (SDSs). Label and SDSs must
always be available; training must take place at the time of the
employee's initial assignment and when new hazardous chemicals are
introduced into the work area. Fourth, noncertified applicators have
similar job responsibilities to agricultural pesticide handlers under
the WPS and have an equal need for labeling information. For these
reasons, it is important to make the labeling available to all
noncertified applicators working with RUPs, even if some may not be
able to read or understand the labeling.
Communication between the supervising applicator and the
noncertified applicator is critical if the noncertified applicator has
a question before application or encounters an emergency situation
related to the misapplication. The current rule requires provisions for
contacting the certified applicator, but it is very general and
provides no assurance of timely contact. The intent of the existing
provision was to enable communication between the supervising
applicator and the noncertified applicator throughout the application
process. Telecommunications options have improved dramatically over the
last 35 years, and the proposed requirement to ensure means are
available for immediate communication would take advantage of those
changes to more fully accomplish the intent of the original provision.
Requiring means to be available for immediate communication would allow
flexibility for the supervising applicator; if the certified and
noncertified applicator are working at the same location, means for
immediate communication could be speaking to one another directly. In
the event the noncertified applicator is using RUPs under the direct
supervision of a certified applicator when the certified applicator is
not present, means of immediate communication could include cellular
phones or two-way radios, among other mechanisms.
The regulatory text related to this proposal would be located at 40
CFR 171.201(b).
5. Costs. EPA assumes that the current requirement to provide
detailed guidance for applying the pesticide properly and the proposed
requirement to provide application-specific instructions are
substantially similar and will not result in a significant increase in
the cost of compliance (Ref. 3).
EPA estimates the cost for ensuring means for immediate
communication are available would be negligible because according to
CTIA--The Wireless Association, as of December 2012, wireless
penetration in the United States was 102% (the number of wireless
subscriptions divided by the U.S. population) (Ref. 56).
6. Alternative options considered by EPA but not proposed. EPA
considered different application-specific requirements for supervising
applicators, including a requirement for the supervising applicator to
keep noncertified applicators within their line of sight or to be on
site during applications, a limit on the number of noncertified
applicators that could be supervised at one time, or a limit on the
distance between the certified applicator and the noncertified
applicators.
EPA may limit who may apply RUPs and the type of supervision
required on a product-by-product basis. Some RUP labeling requires
certified applicators to keep noncertified applicators within their
line of sight during applications. EPA considered requiring line of
sight supervision wherever noncertified applicators are applying RUPs
under the
[[Page 51384]]
direct supervision of a certified applicator. For example, labeling for
fumigant products requires the supervising applicator to be on site
because of the significant danger to the applicator if not used
properly. However, a universal requirement that certified applicators
keep noncertified applicators in their line of sight or to be on site
during application would be inconsistent with 7 U.S.C. 136(e)(4), which
allows use of RUPs even if the certified applicator providing direct
supervision is not on site at the time of application.
EPA considered establishing a limit on the number of noncertified
applicators that a certified applicator could supervise for each
application of RUPs, e.g., 10 noncertified applicators could use RUPs
under the direct supervision of a certified applicator at any specific
time. Limiting the number of noncertified applicators using RUPs under
the direct supervision of a certified applicator could better ensure
that the applications are conducted in a manner that would not cause
unreasonable adverse effects to the applicator, the public, or the
environment. EPA does not have information on the maximum number of
noncertified applicators that a certified applicator could supervise
without causing unreasonable adverse effects. There may be limits on
the capability of a certified applicator to supervise noncertified
applicators using RUPs, but the limits seem circumstantial. For
example, a certified applicator supervising the application of RUPs
through backpack sprayers on a single agricultural establishment may be
able to supervise many noncertified applicators without causing
unreasonable adverse effects. However, a certified applicator
supervising noncertified applicators fumigating a warehouse with RUPs
may not be able to supervise other applications of RUPs at the same
time in a safe manner.
EPA chose not to propose a limit on the number of noncertified
applicators that can use RUPs under the direct supervision of a
certified applicator. EPA regulates specific risks related to the use
of RUPs on a product by product basis, including limiting or
restricting the use of RUPs by noncertified applicators. The certified
applicator is liable for all applications conducted under his or her
supervision. To become certified, applicators must demonstrate
competency in conducting and supervising applications in a manner that
will not result in adverse effects to human health or the environment.
It is reasonable to expect that the certified applicator will generally
recognize the limits of his or her capacity to appropriately supervise
multiple noncertified applicators. It is reasonable to expect that the
combination of certified applicators' competency in making and
supervising applications of RUPs, product-specific limitations on the
use of RUPs by noncertified applicators, combined with the proposed
requirement that the supervising applicator ensure that a mechanism for
communication between certified applicators and noncertified
applicators using RUPs under their direct supervision, would adequately
protect the noncertified applicator, the public, and the environment.
Recognizing that EPA has insufficient data to support a limit on the
number of noncertified applicators that can be supervised by a
certified applicator or data to establish the number if a limit is
required, EPA is soliciting additional information related to this
option.
EPA also considered proposing a maximum physical distance or travel
time between the certified applicator and noncertified applicator using
RUPs under his or her direct supervision. For instance, the certified
applicator would have to be within X yards or Y minutes of the
noncertified applicator. This option would make it more likely that the
certified applicator could physically reach the noncertified applicator
within a reasonable timeframe in the event assistance was needed. Time-
based and distance-based limitations would have different impacts in
urban and rural areas--in a city, the certified applicator might take
an hour to get to an application site within 5 miles, whereas in a
rural area, the applicator could cover the same distance in a few
minutes. EPA does require the supervising certified applicator to be on
site when certain RUPs are used by noncertified applicators. These
restrictions are imposed on a product by product basis. EPA does not
have sufficient information on a specific time or distance between
certified applicators and noncertified applicators using RUPs under
their direct supervision that would make meaningful reductions in the
overall risk of adverse effects from RUP use by noncertified
applicators. Rather than set an arbitrary time or distance, EPA chose
to propose a requirement for the certified applicator to ensure a
mechanism for the supervisor and noncertified applicator using RUPs
under his or her direct supervision to be in immediate communication.
It is reasonable to expect that ensuring that noncertified applicators
are able to immediately contact their supervisors in the event of a
spill, emergency, or question about the application would reduce the
potential for unreasonable adverse effects from RUP application by
noncertified applicators.
7. Request for comment. EPA requests specific comment on the
following:
Would supervising certified applicators and noncertified
applicators rely on cell phones rather than two-way radios as a means
to ensure immediate communication?
Please provide any additional information that would
assist EPA in more accurately estimating the cost associated with this
proposal.
Should EPA consider other qualifications for supervising
applicators? If so, what qualifications and why?
Should EPA require certified applicators to be within a
certain distance or time of the noncertified applicators using RUPs
under their direct supervision? Please explain why. If so, what
distance or time should EPA require?
Should EPA limit the number of noncertified applicators
that a certified applicator can supervise? Please explain why. If so,
how should EPA select the maximum number?
XI. Expand Commercial Applicator Recordkeeping To Include Noncertified
Applicator Training
1. Overview. In order to facilitate inspectors' ability to verify
that noncertified applicators have been trained in accordance with the
rule, EPA proposes to require commercial applicators to maintain
records of noncertified applicator training for two years.
2. Existing regulation. The current rule does not require any
person to keep records of the information or training provided to
noncertified applicators.
3. Details of the proposal/rationale. EPA proposes to require
commercial applicators to maintain records of noncertified applicators'
training. The proposed recordkeeping requirement includes: The trained
noncertified applicator's printed name, and signature; the date of the
training; the name of the person who provided the training; and the
supervising commercial applicator's name. It is reasonable to expect
that requiring commercial applicators to maintain records of
noncertified applicators' training would increase the likelihood that
the noncertified applicators will be trained in accordance with the
proposed requirements. In addition, records can help ensure that
noncertified applicators meet the proposed minimum age requirement.
Records are
[[Page 51385]]
a key component of an effective enforcement program. EPA is not
proposing to require commercial applicators to document the
qualifications of noncertified applicators who satisfy the requirement
of 40 CFR 171.201(c) as agricultural handlers or by having passed the
core exam. The WPS already requires agricultural employers to maintain
records of pesticide safety training provided to handlers. It is
reasonable to expect that certifying authorities would be able to
verify whether a noncertified applicator has passed the core exam.
FIFRA prohibits EPA from issuing regulations that require private
applicators to maintain records. Therefore, EPA is not proposing to
make the recordkeeping requirements outlined in this Unit apply to
private applicators. Nevertheless, private applicators still would be
subject to the proposed requirements for ensuring that noncertified
applicators under their direct supervision have met the proposed
training requirements. In the absence of training records maintained by
private applicators, EPA would gauge compliance with the training
requirement during routine compliance inspections. The inspector could
question noncertified applicators regarding the content of the training
and the labeling of any products being applied. If the noncertified
applicators' answers are not consistent with the content of the
required training and the labeling of any products being applied, it
may support a presumption that the private applicator has failed to
adequately comply with the noncertified applicator training
requirement. Where private applicators keep records, either on their
own initiative or in response to State, Tribal, or local requirements,
that are sufficient to verify compliance with the requirements for
training and supervising noncertified applicators, EPA expects that it
would ordinarily rely on such records to assess compliance, rather than
evaluating individual noncertified applicators.
The regulatory text related to this proposal would be located at 40
CFR 171.201(e).
4. Costs. EPA estimates the cost of the proposal to require
commercial applicators to maintain records of the training provided to
noncertified applicators working under their direct supervision for 2
years would be $324,000 annually (Ref. 3).
5. Alternative options considered by EPA but not proposed. EPA
considered requiring the training record to include the noncertified
applicator's date of birth. The Department of Homeland Security (DHS)
requires every employer to have a completed I-9 form for every
employee. The I-9 form already requires employers to obtain and keep
records on a number of pieces of information about the employee to
verify employability, including the employee's date of birth. The
employer must retain the I-9 form for inspection by DHS or other
federal agencies. Rather than impose a duplicative requirement for
recordkeeping on employers, EPA chose not to propose a requirement for
the training record to include the noncertified applicators date of
birth.
6. Request for comment. EPA requests specific comment on the
following:
Should EPA consider requiring the commercial applicator to
provide a copy of the training record to the noncertified applicator?
What would be the value of this record to the noncertified applicator
and subsequent employers? Should EPA require the record to be provided
to all noncertified applicators as a matter of course or only to those
noncertified applicators who request such documentation from the
certified applicator?
Should EPA consider requiring commercial applicators to
maintain records of noncertified applicator training for a different
length of time? If so, for how long should training records be
maintained and why?
Should EPA consider requiring commercial applicators to
document the noncertified applicator's qualification regardless of the
method used to qualify? Should EPA require commercial applicators to
document the WPS training or core exam? If so, why?
XII. Establish a Minimum Age for Certified Applicators
1. Overview. In order to reduce the risks of exposure to
applicators, bystanders, the public, and the environment, EPA proposes
to establish a minimum age of 18 for any person to become certified as
a private or commercial applicator.
2. Existing regulation. The rule has no age restrictions for
certified applicators.
3. Stakeholder information considered by EPA. Stakeholders
including Farmworker Justice, Migrant Clinicians Network, EPA's
Children's Health Protection Advisory Committee, members of the PPDC
workgroup, and State regulatory agencies recommended establishing a
minimum age for pesticide applicators.
In 2002, CTAG surveyed State lead agencies for pesticide applicator
certification. Responses were provided from 49 States, with 30 States
implementing a minimum age for commercial applicators and 27 States
establishing a minimum age for private applicators. The commercial
applicator minimum ages were 16 (6 States) and 18 (24 States); the
private applicator minimum ages ranged from 15 to 18 (15 years, 1
State; 16 years, 10 States; 17 years, 1 State; 18 years, 15 States)
(Ref. 57). CTAG also evaluated State support of a minimum age
requirement for applicator certification. Ninety-eight percent of the
respondents supported such a requirement. Twenty-six States supported a
minimum age of 18, 12 States supported a minimum age of 16, and the
remainder did not respond with a specific age or provided different
required minimum ages, depending on type of certification (Ref. 57).
As of 2013, 35 States had implemented a minimum age of 18 for
commercial applicators and 8 States had implemented a minimum age of 16
for commercial applicators. For private applicators, 16 States
established a minimum age of 18, 1 State established a minimum age of
17, and 17 States established a minimum age of 16 (Ref. 3).
The SBAR panel recommended that EPA consider a minimum age of 18
for commercial and private applicator certification, with an exception
allowing private applicators working on a farm owned by an immediate
family member (as defined in the WPS at 40 CFR part 170) to be
certified at 16 years old (Ref. 34). The SERs (including pesticide
applicators, farmers, and other business owners) consulted by the panel
had varying recommendations regarding minimum age.
For commercial applicators, SERs mainly suggested a minimum age of
18, noting that the minimum age for a pilot license is 18 so it would
not impact aerial applicators and that ``one cannot understand the
concept of safe and accurate application until age 18.'' Other SERs
suggested that the minimum age should be 16 for children of farmers,
that the minimum age should not exceed 14, and that there should be no
minimum age--only a requirement to pass a written test (Ref. 34).
For private applicators, recommendations ranged from no minimum age
to a minimum age of 18. Two SERs suggested that there should be no
minimum age, with one suggesting that children be certified as private
applicators when they pass a test. Three representatives suggested a
minimum age of 16. One SER suggested a minimum age of 18 (Ref. 34). Two
SERs noted that establishing a minimum age would require farm owners to
hire certified applicators, increasing the cost of RUP applications
(Ref. 34).
[[Page 51386]]
DOL has established a general rule, applicable to non-agricultural
employment, that workers must be at least 18 years old to perform
hazardous jobs. 29 CFR 570.120. For example, those under the age of 18
may not perform most tasks in manufacturing or mining industries;
communications or public utilities; construction or repair; in
transporting people or property; and in warehousing and storage. The
FLSA establishes a minimum age of 16 for youth in agriculture engaged
in occupations deemed hazardous by the Secretary of Labor. 29 U.S.C.
213(c)(2). This includes persons handling toxicity category I and II
pesticides in agriculture. 29 CFR 570.71(a)(9). By regulation, DOL
prohibits youth under the age of 16 engaged in nonagricultural
employment from any work involving pesticides unless employed by a
parent or someone standing in place of the parent. 29 CFR 570.32.
4. Details of the proposal/rationale. EPA proposes to establish a
minimum age of 18 for persons to become certified as commercial and
private applicators.
Aside from any increased risks that adolescents may suffer from
pesticide exposures, adolescents generally lack the experience and
judgment to avoid or prevent unnecessary exposure. A study conducted by
the National Institutes of Health (NIH) also demonstrates that because
their brains are still developing, adolescents may have trouble
balancing risk-reward decision-making and goal-oriented decision-making
(Ref. 21). Although adolescents may understand the possible
consequences of their actions, they are more likely to make decisions
based upon their initial emotional responses, which will often lead
them to make suboptimal choices (Ref. 20). Additionally, adolescents
are less likely to be aware of their rights and how to recognize
hazards in the workplace (Ref. 20).
Pesticide applicators must exercise good judgment and responsible
behavior to best protect themselves and others as they work with these
potentially toxic materials. Research has shown differences in the
decision making of adolescents and adults that reasonably supports the
conclusion that applicators who are children may take more risks than
those who are adults. Behavioral scientists note that responsible
decision making is more common in young adults than adolescents:
``socially responsible decision making is significantly more common
among young adults than among adolescents, but does not increase
appreciably after age 19. Adolescents, on average, scored significantly
worse than adults did, but individual differences in judgment within
each adolescent age group were considerable. These findings call into
question recent assertions, derived from studies of logical reasoning,
that adolescents and adults are equally competent and that laws and
social policies should treat them as such'' (Ref. 22). Decision-making
skills and competence differ between adolescents and adults. A NIOSH
compilation of studies demonstrates ``[y]outh are at increased risk of
injury from lack of experience. Inexperienced workers are unfamiliar
with the requirements of work, are less likely to be trained to
recognize hazards, and are commonly unaware of their legal rights on
the job. Developmental factors--physical, cognitive, and
psychological--may also place them at increased risk'' (Ref. 21). While
some research has focused on decision-making of adolescents in terms of
legal culpability, the findings on decision-making skills and
competence can be applied reasonably to pesticide application.
Society has established 18 as the age of majority in many
circumstances, and research has shown that by 18 years old, most people
have developed a level of competence that makes responsible decision
making more likely. For example, persons must wait until they are 18 to
vote, join the military, use tobacco, and give medical consent. For the
one major exception to 18 as the age of majority, issuance of driver's
licenses, States have recognized the increased risks associated with
new, immature drivers. Forty-nine States have established a graduated
driver's license program, under which the young drivers do not get full
rights and independence upon passing the necessary tests; rather they
get limited privileges that expand over time to result in full rights
and independence when they reach 17 or 18 years old. Overall, this
approach has resulted in fewer accidents by teenage drivers between 16
and 18 years old (Refs. 58 and 59). Society does not entrust
individuals with the right to conduct some high risk activities until
they have met a certain age because the risk of harm to the underage
person and others is too great. Pesticide application presents
comparable risks, with the potential for significant harm to the
applicator, the public, and the environment.
In addition to differences between adolescents and adults in terms
of decision-making ability, children may be more susceptible to
pesticides because their physiological systems are developing, and that
development may be altered by pesticide exposure. Most pesticides
classified as RUPs are so classified based on an increased potential
for acute harm to human health. A level of exposure to RUPs considered
safe for an adult may not be safe for a child.
EPA expects that restricting certification to persons 18 years of
age or older would prevent children from being exposed while performing
and supervising application activities and protect other persons and
the environment from misapplication due to children's poor judgment or
inadequate decision-making skills. EPA's proposal would harmonize the
age requirements for pesticide applicators with the minimum age
requirements for workers performing hazardous jobs in other industries.
The regulatory text for these provisions would be located at 40 CFR
171.103(a)(1) for commercial applicators and at 40 CFR 171.105(d) for
private applicators.
5. Costs. EPA separates the cost of establishing a minimum age for
commercial and private applicators in this unit.
i. Commercial applicators. EPA estimates the cost of establishing a
minimum age of 18 for commercial applicators would be $294,000 per year
(Ref. 3). The costs would reflect the difference in the wage rates
between commercial applicators who are 18 years or older and those who
are younger in States that do not currently have a minimum age of 18
(Ref. 3). As discussed in this unit, many States already have a
requirement that certified applicators must be at least 18 years old.
ii. Private applicators. EPA estimates the cost of establishing a
minimum age of 18 for private applicators would be $174,000 per year
(Ref. 3). The costs would reflect the difference in the wage rates
between private applicators who are 18 years or older and those who are
younger in States that do not currently have a minimum age of 18.
6. Alternative options considered by EPA but not proposed. EPA
considered two alternatives: Allowing flexibility in the minimum age of
18 for applicators on a family farm, and establishing a minimum age of
16 for commercial and private applicators.
EPA took into account the recommendation of the SBAR panel that EPA
consider a minimum age of 18 for commercial and private applicator
certification, with an exception allowing private applicators working
on a farm owned by an immediate family member (as defined in the WPS at
40 CFR part 170) to be certified at 16 years old (Ref. 34). This option
would allow flexibility for earlier certification for private
applicators working on farms owned by immediate family members;
however, it
[[Page 51387]]
provides a different level of protection for private and commercial
applicators and to those who would be impacted by their applications of
RUPs. EPA's primary concern is the protection of human health and the
environment from pesticide hazards; the SBAR panel alternative does not
adequately protect a vulnerable segment of the population, youths 16
and 17 years old. It also puts at risk neighbors, bystanders, and the
environment. RUPs pose greater potential for unreasonable adverse
effects if they are misused than do other pesticides. Persons younger
than 18 may possess less maturity and good judgement than adults, and
they may be careless in making applications. It is reasonable to expect
that there would be additional risk to the applicator, the public, and
the environment from RUP applications by persons younger than 18, and
despite the benefit of flexibility offered by a reduced minimum age on
family owned enterprises, EPA does not consider that flexibility
justified in light of the associated risks.
The second alternative considered by EPA was to set a minimum age
of 16 for persons to become certified as commercial or private
applicators. This option would require fewer States to incorporate the
new requirement because most States have a minimum age of at least 16.
Under this alternative, States could adopt or retain a requirement for
a higher minimum age. In addition, a minimum age of 16 would match the
requirements of the FLSA for handling or applying products in toxicity
category I and II in agricultural employment and the minimum age for
handlers under the proposed changes to the WPS (Ref. 4). However, this
option would provide significantly less protection to the applicator,
the public, and the environment. Moreover, this option could create a
scenario in which a minor could be directing the actions of an adult by
supervising the application of RUPs. States have noted that it can be
difficult to take enforcement actions against minors. Under this
scenario, States may have no recourse if the pesticide was misapplied
by the noncertified applicator because responsibility ultimately rests
with the certified applicator, in this case, a minor. Certified
applicators use RUPs, pesticides with a higher potential for harming
human health and the environment, and must possess an appropriate level
of competence, maturity and decision-making skills to ensure these
products are used safely. Therefore, EPA does not believe that the
difference in cost between the proposed option and this alternative
justifies the associated risk to youth applicators, the public, and the
environment.
7. Request for comment. EPA specifically requests comment on the
following questions:
Are there alternatives that have not been
considered that would improve protections for adolescent certified
applicators using RUPs, either those under 16 or 18 years old, while
allowing flexibility for pesticide use for agriculture?
What would be the impact on State programs of establishing
a minimum age of either 16 or 18 for certified applicators? What would
be the impact on pesticide application businesses?
Are there additional benefits or burdens associated with
establishing a minimum age of 16 or 18 for certified applicators? If
so, please provide data to support either position.
Would this proposal have an impact on training programs
for adolescents? If so, please describe the impact.
Is there a need for an exemption from the minimum age
requirement for persons working on a farm owned by their immediate
family members? If so, how widespread is this need and what are its
economic impacts? What criteria should EPA consider if it creates such
an exemption, e.g., size of the farm, specific familial relationship,
whether a family member/owner is also a certified applicator? Should
EPA use the same criteria established for the exemption for owners and
their immediate family members under the WPS (see 40 CFR 170.104(a) and
170.204(a))?
XIII. Establish a Minimum Age for Noncertified Applicators Working
Under the Direct Supervision of Certified Applicators
1. Overview. EPA proposes to require that noncertified applicators
who use RUPs under the direct supervision of a certified applicator be
at least 18 years old. EPA expects this change would result in reduced
risks to children and improved competency in the use of RUPs, resulting
in reduced exposure to noncertified applicators, bystanders, and the
environment.
2. Existing WPS regulations. The current rule does not establish a
minimum age for noncertified applicators.
3. Stakeholder information considered by EPA. As of 2013, 16 States
had implemented a minimum age of 18 for noncertified applicators under
the direct supervision of commercial applicators and 4 States had
implemented a minimum age of 16 for noncertified applicators under the
direct supervision of commercial applicators. For private applicators,
5 States established a minimum age of 18 and 2 States established a
minimum age of 16. Two States prohibit use of RUPs by noncertified
applicators, eliminating the option for use of RUPs under the direct
supervision of a certified applicator (Ref. 3).
The SBAR panel recommended that EPA consider a minimum age of 18
for noncertified applicators working under the direct supervision of
commercial applicators and a minimum age of 16 for noncertified
applicators working under the direct supervision of private applicators
(Ref. 34). The SERs consulted by the panel provided varied
recommendations. One SER recommended that EPA adopt a minimum age of 16
for persons working in an apprentice program, but prohibit these
noncertified applicators from working alone (i.e., supervising
applicator not present at the site of application). Another SER
suggested a minimum age of 18 because ``one cannot understand the
concept of safe and accurate application until age 18.'' A third SER
suggested that EPA not establish a minimum age because establishments
applying RUPs need to use family members. Finally, one SER supported
EPA's adoption of either a requirement for training for noncertified
applicators or a requirement for certified applicators to be present
for applications made under their direct supervision (Ref. 34). EPA
also considered the information discussed in Unit XII.3.
4. Details of the proposal/rationale. EPA proposes to establish a
minimum age of 18 for noncertified applicators using RUPs under the
direct supervision of certified applicators. The proposed age
restriction would include a requirement for commercial applicators
supervising the noncertified applicator to record the training and the
birth date of any noncertified applicator using RUPs under their direct
supervision.
EPA considered the rationale discussed in Unit XII.4. in developing
this proposal. As discussed in the previous section, research shows the
differences in the decision-making of adolescents and adults leads to
the conclusion that noncertified applicators who are adolescents may
take more risks than those who are adults. The use of RUPs presents
demonstrable risks of significant harm to the applicator, the public,
and the environment, and these risks are significantly influenced by
the user's judgment and decision-making skills. Requiring noncertified
applicators to be 18 years of age or older would prevent youth under 18
from being exposed while using RUPs under the supervision of a
certified applicator
[[Page 51388]]
and would reduce risks to other persons and the environment from
misapplication owing to users' poor judgment or decision-making skills.
This proposal would also align with society's general trend toward
increasing the ages at which persons are eligible to do certain things
that present recognized risks, such as purchasing alcohol or becoming a
licensed driver.
Because noncertified applicators use RUPs, their activities entail
a heightened level of risk that requires maturity and good decision-
making skills if unreasonable adverse effects are to be avoided.
Therefore, it is reasonable to expect that establishing a minimum age
of 18 for noncertified applicators would improve protections from
misapplication of RUPs to applicators, the public, and the environment.
The regulatory text establishing a minimum age for noncertified
applicators would be located at 40 CFR 171.201(b)(5).
5. Costs. EPA separated the cost for establishing a minimum age of
18 for noncertified applicators working under the direct supervision of
commercial applicators and for those under the direct supervision of
private applicators in this unit.
i. Noncertified applicators working under the direct supervision of
commercial applicators. EPA estimates the cost of requiring
noncertified applicators working under the direct supervision of
commercial applicators to be 18 would be $12.8 million per year (Ref.
3). The costs reflect the difference in the wage rates between these
noncertified applicators who are 18 years or older and those who are
younger.
ii. Noncertified applicators working under the direct supervision
of private applicators. EPA estimates the cost of requiring
noncertified applicators working under the direct supervision of
private applicators to be 18 would be $1.1 million per year (Ref. 3).
The costs reflect the difference in the wage rates between these
noncertified applicators who are 18 years or older and those who are
younger.
For a complete discussion of the estimated costs of the proposals
and alternatives, see the economic analysis for this proposal (Ref. 3).
EPA cannot quantify the benefits associated with this proposal
(Ref. 3). However, it is reasonable to expect that this proposal would
improve the health of adolescent noncertified applicators, as well as
other bystanders and the environment. As discussed in Units XII. and
XIII., adolescents' judgment is not fully developed. It is reasonable
to expect that restricting adolescents' ability to handle pesticides
would lead to less exposure potential for the noncertified applicators
themselves, and less potential for misapplication that could cause
negative impacts on other persons nearby, and the environment.
6. Alternative options considered but not proposed. EPA considered
two alternatives: Proposing a minimum age of 16 for all noncertified
applicators using RUPs under the direct supervision of commercial and
private applicators, and proposing a minimum age of 18 for all
noncertified applicators using RUPs under the direct supervision of a
certified applicator with an exception for noncertified applicators
working under the direct supervision of a private applicator on a farm
owned by an immediate family member.
Establishing a minimum age of 16 for noncertified applicators would
roughly align with the DOL's age restrictions related to pesticide
handling. It would also correspond with the proposed minimum age of 16
for pesticide handlers under the WPS that EPA is considering. Finally,
this alternative would give noncertified applicators the opportunity to
gain knowledge and experience about the proper use of RUPs at a younger
age while working under the direct supervision of a certified
applicator. EPA recognizes similarities between noncertified
applicators and handlers under the WPS. However, noncertified
applicators use RUPs, products that pose a higher risk of harm to human
health and the environment if not used properly. For this reason, it is
critical that those who use RUPs, even with proper supervision, have
developed the necessary maturity and decision-making skills to use the
products in a manner that avoids unreasonable adverse effects to
themselves, other persons, and the environment. EPA does not believe
that harmonizing the minimum age for noncertified applicators with the
proposed minimum age for handlers under the WPS and the Department of
Labor's requirements would offer benefits sufficient to justify the
increased potential risk from improper use of an RUP by a noncertified
applicator who is not at least 18 years old.
The SBAR panel recommended that EPA consider a minimum age of 18
for commercial and private applicator certification, with an exception
allowing private applicators working on a farm owned by an immediate
family member (as defined at 40 CFR 170.2) to be certified at 16 years
old (Ref. 34). EPA considered adopting a similar requirement for
noncertified applicators or establishing a minimum age of 18 for those
working under the direct supervision of commercial applicators and 16
years old for those working under the direct supervision of private
applicators. These options would allow flexibility for earlier
certification on family-owned farms or for private applicators;
however, they would provide a different level of protection to
noncertified applicators working under the direct supervision of
private and commercial applicators. A noncertified applicator is likely
to have less experience and knowledge than a certified applicator. A
person younger than 18 may also have less maturity and good judgement.
It is reasonable to expect that it is more likely that there would be
additional risk to the applicator, the public, and the environment from
RUP applications by noncertified persons younger than 18, and despite
the benefit of flexibility offered by a reduced minimum age on family
owned enterprises, EPA does not consider that flexibility justified in
light of the associated risks.
7. Request for comment. EPA specifically requests comment on the
following questions:
Are there alternatives that have not been
considered that would improve protections for adolescent noncertified
applicators using RUPs under the direct supervision of a certified
applicator, either those under 16 or 18 years old, while allowing
flexibility for pesticide use for agriculture?
What would be the impact on State programs of establishing
a minimum age of either 16 or 18 for noncertified applicators? What
would be the impact on pesticide application businesses?
Are there additional benefits or burdens with establishing
a minimum age of 16 or 18 for noncertified applicators? If so, please
provide data to support either position.
Would this proposal have an impact on training programs
for adolescents? If so, please describe the impact.
Would it be possible for EPA to include in the final rule
exceptions to the proposed minimum age requirement for persons
participating in adolescent vocational training programs and high
school educational programs, where persons who do not meet the minimum
age work under the direct supervision of certified applicators, while
ensuring that adolescents, others, and the environment are protected
adequately? If so, explain how EPA could ensure adequate protections.
Please suggest a framework for such an exemption.
[[Page 51389]]
XIV. Establish a National Certification Period and Standards for
Recertification
A. National Recertification Period
1. Overview. To ensure certified applicators maintain core
competencies and keep pace with the changing technology of pesticide
application, and to ensure that the public, environment and applicators
are protected from misapplication and misuse, EPA proposes to establish
a maximum certification period of 3 years. This would require all
applicators to renew their certification, i.e., recertify, at least
every 3 years.
2. Existing regulation. The current rule requires States to ensure
applicators maintain a continuing level of competency and ability to
apply pesticides safely and properly as part of their State plans. 40
CFR 171.8(a)(2). The rule requires that under plans administered by
EPA, commercial applicators must be recertified every 3 years and
private applicators must be recertified every four years. 40 CFR
171.11. A policy applicable to Federal agency plans directs Federal
agencies to include in their certification plans a requirement for
applicators to recertify every 3 years (Ref. 60). There are no
corresponding regulatory requirements or policies establishing a
maximum certification period under State and Tribal certification
plans.
3. Stakeholder information considered by EPA. CTAG, SFIREG, State
regulatory agencies and members of the PPDC workgroup all requested
that EPA establish a standard maximum certification period. State and
Tribal participants at the 2006 Worker Safety PREP generally supported
the proposed 3-year maximum certification period, though States with 5-
year periods expressed concerns for the potential impacts to their
programs (Ref. 33).
States' requirements for frequency of applicator certification
range from 1 year to 6 years. In a survey of State requirements, EPA
determined that 31 States already have a certification period of 3
years or fewer for commercial applicators. Twenty-five States already
require recertification every 3 years or fewer for private applicators
(Ref. 5).
4. Details of the proposal/rationale. EPA proposes that all
pesticide applicator certifications be valid for no more than 3 years.
This proposal corresponds with the existing requirements for commercial
applicators under EPA-administered plans and Federal agency plans.
Ensuring the ongoing competency of applicators of RUPs is crucial
in preventing unreasonable adverse effects when RUPs are used.
Applicators must be knowledgeable about changing technology, product
reformulations, new labeling and regulatory requirements, and other
essential labeling information. Applicators also must be reminded about
personal safety and basic application principles. To ensure ongoing
competency, it is necessary to require renewal of an applicator's
certification within a specific period. The more frequently applicators
receive training, the more likely they are retain the substance of the
training and apply it on the job. Studies show that information
retained from training sessions declines significantly within a year
(Refs. 14 and 15). However, preparing for and demonstrating competency
by passing an exam requires a higher level of preparation and a more
reliable demonstration of the competencies needed. Therefore, it is
reasonable to believe that allowing certified applicators to renew
their certifications over a slightly longer period would not adversely
impact human health and the environment. EPA already requires
applicators under an EPA-administered plan to recertify every 3 years
and it is reasonable to extend this requirement to all applicators
certified under any plan approved by EPA.
It is reasonable to expect that requiring all applicators certified
by States, Tribes and Federal agencies to be recertified at least every
3 years would set an acceptable minimum standard for continued
competency in the applicator certification program.
The regulatory text for this proposal would be located at 40 CFR
171.107(a).
5. Costs. EPA estimated the cost of this proposal in conjunction
with the proposal to establish requirements for recertification
programs. See Unit XIV.B. The cost of this proposal is provided in
combination with the cost of the proposal for recertification
requirements in Unit XIV.B.5.
6. Alternative options considered by EPA but not proposed. EPA
considered proposing a maximum certification period of 5 years for
private and commercial applicators. As discussed in this unit, learned
knowledge diminishes over time (Refs. 14 and 15). EPA must ensure that
applicators maintain ongoing competency to protect themselves, other
persons, and the environment from unreasonable adverse effects from RUP
exposure. It is reasonable to expect that applicators retain less
knowledge over a 5 year recertification period than they would over a 3
year recertification period, thereby increasing the potential risk
posed by applicators who do not maintain an ongoing level of
competency. EPA estimates that the difference in cost between a 3 year
and 5 year recertification would be negligible. For these reasons, it
is reasonable to expect that the potential small cost savings
associated with a 5 year recertification period instead of a 3 year
recertification period are not significant enough to warrant the
increased risks associated with applicators who do not maintain an
ongoing level of competency in the use of RUPs.
7. Request for comment. EPA specifically requests comment on the
following questions:
Should EPA consider a different maximum recertification
period? If so, what period and why?
B. Recertification Requirements
1. Overview. To ensure certified applicators maintain core
competencies and keep pace with the changing technology of pesticide
application, and to ensure that the public, environment and applicators
are protected from misapplication and misuse, EPA proposes to require
State, Tribal, and Federal agencies to require applicators to complete
a continuing education program that meets or exceeds specific standards
or to pass exams related to their certification(s) in order to be
recertified.
2. Existing regulation. The current rule requires States to require
applicators to demonstrate ongoing competency as part of their State
plans. 40 CFR 171.8(a)(2). The rule has no requirements for the
recertification standards such as content or manner in which ongoing
competency is evaluated.
3. Stakeholder information considered by EPA. In a survey of State
certification program personnel, CTAG found most States agreed that the
credibility of training presenters, programs, and recertification exams
should be subject to review and approval by the agency that assigns the
recertification program credits or oversees exams. Participants at the
2006 Worker Safety PREP noted that most States offer applicators the
option to take an exam for recertification if recertification is not
accomplished through accruing continuing education units by the
required deadline. Additionally, States noted that some applicator
categories have so few applicators or the substance of the categories
changes so infrequently that developing and updating training materials
may be cost-prohibitive for States or cooperative extension services;
[[Page 51390]]
therefore, States requested the option to offer or require retesting
for recertification (Ref. 33).
State and Tribal participants at the 2006 Worker Safety PREP
generally supported having a requirement for the minimum number of
credits that must be earned by an applicator in a continuing education
program during the recertification period. Some States expressed
concern that minimum requirements established at the Federal level
could cause States with more stringent requirements to lower their
requirements. For example, if EPA required an applicator to earn 6
credits per category every 3 years, those States with higher
requirements (e.g., 12 credits per category) might face resistance from
their applicators. Conversely, they appreciated that a Federal standard
would make issuing and monitoring reciprocal certificates to
applicators less burdensome, because all States would meet a minimum
standard for recertification programs.
4. Details of the proposal/rationale. The Agency proposes to
establish minimum standards for continuing education programs,
including: The minimum number of continuing education units (CEUs) that
must be earned by an applicator in order to be recertified in core and
each category; the standard length of a CEU; and a requirement for
applicators to earn at least half of the required CEUs in the 18 months
preceding expiration of the applicator's certification. States, Tribes,
and Federal agencies would be required to include a continuing
education program that meets or exceeds these standards as part of
their certification plan. EPA also proposes to allow States to require
recertification only by exam. The exam and its administration would
have to meet the standards outlined in Unit IX.
EPA proposes to require that private applicator continuing
education programs require instruction in the general competency
standards as well as each relevant application method-specific
category. The more training applicators receive, the more likely they
are retain the substance of the training and apply it on the job. Under
EPA's proposal, a private applicator would need to earn a minimum of 6
CEUs of instruction that covers the content proposed as 40 CFR
171.105(a) every 3 years to maintain core certification. The CEUs must
be part of a continuing education program approved by the appropriate
State, Tribal, or Federal agency for recertification. To qualify for
recertification in the proposed application-method specific categories
of soil fumigation, non-soil fumigation, or aerial application, or in
the predator control category, a private applicator would need to earn
a minimum of an additional 3 CEUs specific to each relevant application
method that covers the content proposed as 40 CFR 171.105(b) and (c)
every 3 years. A commercial applicator would need to earn a minimum of
6 CEUs related to his or her core certification every 3 years to
maintain his or her core certification. For each category (pest control
and application method-specific) in which the applicator is certified,
he or she would need to obtain at least 6 CEUs specific to each
category every 3 years. For example, a commercial applicator certified
in agricultural pest control and aerial application would be required
to obtain 6 CEUs of core material to satisfy recertification
requirements for commercial core, as well as an additional 6 CEUs in
agricultural pest control and 6 CEUs in aerial application in order to
satisfy recertification requirements for maintaining his or her overall
certification in the appropriate categories.
EPA proposes to allow applicators to earn CEUs in a program
administered by or approved by the certifying State, Tribal, or Federal
agency. The certifying authority's certification plan would need to
detail how it would review and approve content for the continuing
education program and how it would ensure that applicators satisfy the
necessary requirements. The certifying authority could either conduct
the continuing education program directly (some States refer to this
type of program as a workshop), or could approve continuing education
programs administered by cooperative extension services at State
universities, other States, or private training providers. To approve
the program, the State would have to ensure that the continuing
education program meets the competency requirements established for
commercial core certification, general private applicator
certification, or the specific category or application method-specific
category covered by the continuing education program.
EPA also proposes to set 50 minutes of active training time as the
standard for a CEU. There is a wide range of time across States and
professions for what constitutes a CEU. A minimum standard of 50
minutes of education per CEU would be consistent with most State
standards. Setting a minimum standard for acceptable CEUs across all
States, Tribes, and Federal agencies will ensure a baseline level for
recertification programs that employ training and may facilitate
applicators earning credits for recertification in more than one State.
With a more standardized baseline for a CEU, States may be more likely
to approve or accept continuing education programs presented in other
States. Interstate collaboration for recertification would reduce the
burden on State lead agencies and educators to develop and present new
materials for each category. In addition, applicators certified in the
same category in more than one State could be able to earn CEUs in one
State and apply them to recertification in their other State of
certification, reducing the overall burden associated with
recertification in multiple States.
EPA also proposes to require that the applicator earn a minimum of
one-half of the required CEUs during the 18 month period preceding the
expiration date of his or her certification. A more recently trained
applicator is more likely than less frequently trained applicators to
apply what he or she learned from the training on the job. This should
ensure that the applicator maintains an ongoing level of competence
throughout the period that the certification is valid. The proposal
would support applicators staying abreast of current information and
technology related to their category of pesticide application.
EPA is also proposing to allow certifying authorities to require
applicators to pass exams relevant to their categories of certification
in order to be recertified. Exams are a reliable gauge of competency
and can be used to ensure that applicators continue to demonstrate an
appropriate level of competency.
For a discussion of the requirement for verification of the
recertification candidate's identity, see Unit IX.
The regulatory text for the proposed addition of recertification
standards would be located at 40 CFR 171.107(b).
5. Costs. The estimated costs for this proposal and the proposal in
Unit XIV.A. are presented by impact to commercial applicators and
private applicators. The costs to the States are incorporated in each
section.
i. Commercial applicators. EPA estimates that the proposed
requirement for commercial applicators to recertify would cost a total
of $6.5 million per year (Ref. 3). EPA estimated this cost based on an
applicator being required to complete 6 hours of training in core
competency standards and 6 hours of training for each category of
certification. The recertification costs include applicators
recertifying in the proposed application-method specific categories and
the new predator control categories. EPA estimates that State costs to
administer the proposed
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recertification program for commercial applicators would be $39,000
because most States already have recertification programs in place and
would only need to adjust it to match the proposed regulatory
requirement (Ref. 3).
ii. Private applicators. EPA estimates the cost of the proposed
requirement for private applicators to recertify at $16.8 million
annually (Ref. 3). EPA estimated this cost based on an applicator being
required to complete 6 hours of training in general private applicator
competency standards and 3 hours of training for each application
method-specific category of certification. The recertification costs
include applicators recertifying in the proposed application-method
specific categories and the new predator control categories. EPA
estimates that State costs to administer the proposed recertification
program for private applicators would be $11,000 because most States
already have a recertification program in place and would only need to
adjust it to match the proposed regulatory requirement (Ref. 3).
6. Alternative options considered by EPA but not proposed. EPA
considered a range of continuing education requirements but does not
have a specific alternative proposal. EPA reviewed recertification and
continuing education requirements for several other types of
professional occupations and found wide variability in continuing
education requirements across States or organizations within a single
profession (e.g., nursing), and found little information to explain the
variation in requirements. Similarly, EPA reviewed the existing State
continuing education requirements for pesticide applicator
recertification and found that the requirements ranged from two up to
40 continuing education units per cycle, and cycles ranged from 1 to 5
years, but there was little or no information available to support why
a particular number of continuing education units was selected.
7. Request for comment. EPA specifically requests comment on the
following questions:
Is the proposed number of recertification CEUs too low or
too high? If so, please provide specific information on the number of
continuing education units that you believe should be required for
professional recertification and the rationale behind the number.
Is EPA's proposal to require that the applicator earn a
minimum of one-half of the required CEUs during the 18 month period
preceding the expiration date of his or her certification clear? Is
there a way EPA could make the requirement clearer or easier to
understand? If so, please provide suggestions for how EPA could
structure the requirement without altering the substance.
Should EPA reconsider the proposal to require that the
applicator earn a minimum of one-half of the required CEUs during the
18 month period preceding the expiration date of his or her
certification? If so, why?
Should EPA consider a different time period for applicator
recertification? If so, please explain what period EPA should consider
and why.
Should EPA require commercial and private applicators to
have the same recertification requirements for category
recertification? If so, why?
Should EPA do more to harmonize requirements for
recertification to further facilitate reciprocity? Please describe what
actions EPA should take and how they would further facilitate
reciprocity.
XV. Revise State Certification Plan Requirements
1. Overview. In order to clarify requirements for content,
submission and approval of State plans, raise the minimum standards for
State pesticide applicator certification programs, and update the
requirements for State plans, EPA proposes to revise the provisions of
the rule related to submission, approval, and maintenance of State
plans. Since the requirements for Tribal and Federal agency plans
reference the standards for State plans, the proposed changes would
also impact the requirements for Tribal and Federal agency plans.
2. Existing regulation. The current provisions at 40 CFR 171.7 and
171.8 establish the requirements for the submission, approval and
maintenance of State plans. These sections of the rule set the content
of State plans and outline the specific regulatory provisions, legal
authorities, and components that States must have in order for EPA to
approve a State plan. An EPA-approved State plan allows the State to
certify and recertify RUP applicators.
3. Details of the proposal/rationale. EPA proposes to revise the
provisions covering the submission, approval, and maintenance of State
plans. The revisions will cover: Revision of State plans to conform
with proposed changes; additional reporting and accountability
information; States' need to have both civil and criminal penalty
authority to enforce their State plans; recordkeeping requirements for
commercial applicators; recordkeeping requirements for RUP dealers;
standards for certification credentials; requirements for States'
recognition of certifications issued by other States (known as
reciprocal certification); and maintenance, modification, and
withdrawals of State plans.
i. State plan modification to implement proposed changes. EPA's
proposal would add appropriate provisions to ensure that State plans
conform to new standards and requirements being proposed in other parts
of the rule. This includes proposed standards for the certification of
private and commercial applicators, recertification, and direct
supervision of noncertified applicators. States would continue to be
permitted to adopt, as they considered appropriate, the Federal
categories appropriate for their States, add subcategories under the
Federal categories, delete Federal categories not needed, and add
State-specific categories not reflected by the Federal categories.
EPA considered several alternatives. First, EPA considered
requiring States to adopt all applicable Federal categories proposed as
40 CFR 171.101 and 171.105. At the present time, few States have
defined their certification categories to align exactly with the
Federal categories--many have either split existing Federal categories
into multiple categories or added a number of subcategories under
categories similar to the Federal categories. Some stakeholders believe
that requiring all certifying authorities to use the Federally-
established categories could benefit applicator mobility, stating that
if the standards for certification were consistent across States,
States would be able to more easily evaluate requests for reciprocal
certification. However, requiring States to adopt the Federal
categories would burden States and applicators, and would not
necessarily result in improved protection for applicators, the public,
or the environment. Because the Federal categories may be broad,
applicators may be required to learn material in areas not relevant to
their actual applications, potentially reducing protections.
Consequently, EPA expects that many States would still require
applicators to certify in their State-specific subcategories to ensure
specific competency. If a significant number of States continue to
require applicators to certify in State-specific subcategories, it
would defeat the goal of facilitating reciprocal certification. In this
scenario, requiring States to adopt the Federal categories would
increase the burden to the States to revise their certification systems
to accommodate the changes, and to applicators required to pass
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another exam, without any clear benefit in either efficiency or
protection. Because there is little, if any, gain in protection from
this option, and because it would be a burden to States and
applicators, it is not proposed.
EPA also considered subdividing the national pest category 7
(industrial, institutional, structural and health-related pest control)
into component parts. This category covers a range of specific
application types--for example, applications in food handling areas to
control insects and rodents, termite control in infested buildings, and
treatments to nursing homes and schools. Safe and effective
applications to these different sites require different skills and
knowledge. Subdividing the category at the Federal level would allow
the certification to focus on the competencies most relevant to
applicators in the subdivided categories. However, 47 States have
already created appropriate categories for their needs and their
applicators learn information relevant to their specific applications
and are being tested on that specific information. Because of the
State-specific divisions, there is little consistency in how the States
have subdivided the category. Retaining the category in its current
form and allowing States to adjust it as needed would avoid imposing an
increased burden on States to adjust their categories to a newly
developed Federal standard with little or no improvement in protection.
For a discussion on EPA's proposal for applicator reciprocity,
please refer to Unit XV.3.vii.
For standards for direct supervision of noncertified applicators,
EPA proposes to require States to adopt the proposed standards at 40
CFR 171.201 for commercial and/or private applicators that supervise
noncertified applicators. This would not require States to allow the
use of RUPs by noncertified applicators under the direct supervision of
certified applicators; States that choose to restrict use of RUPs to
certified applicators would be exempted from the requirement to adopt
the proposed standards as 40 CFR 171.201. These options would continue
to allow the States the flexibility to decide whether or not to allow
use of RUPs by noncertified applicators. EPA's criteria for approving
the registrations of RUPs are based, in part, on presumptions that any
uncertified applicators have at least the level of training mandated in
40 CFR 171.201. Therefore, EPA only proposes that States adopt EPA's
standards for noncertified applicators exactly, with the flexibility to
adopt additional standards at the State's discretion to address State-
specific issues.
The proposed regulatory text would be located at 40 CFR 171.303(a)
and (b).
ii. Program reporting and accountability. To reflect the proposed
changes to applicator certification categories and to ensure EPA
receives adequate information to monitor the State's implementation of
its certification plan, EPA proposes to require States to report the
information below to EPA annually. EPA is also proposing to require
Tribes and Federal agencies with their own certification plans to
submit similar relevant information to EPA.
The numbers of new, recertified, and total applicators
holding a valid general private certification at the end of the last
12-month reporting period.
For each application method-specific category specified in
40 CFR 171.105(c), the numbers of new, recertified, and total private
applicators holding valid certifications for the last 12-month
reporting period.
The numbers of new, recertified, and total commercial
applicators holding a valid core and at least one category
certification at the end of the last 12-month reporting period.
For each commercial applicator certification category
specified in 40 CFR 171.101(a), the numbers of new, recertified, and
total commercial applicators holding a valid certification in each of
those categories at the end of the last 12-month reporting period.
For each application method-specific category specified in
40 CFR 171.101(b), the numbers of new, recertified, and total valid
certifications for the last 12 month reporting period.
If a State has established subcategories within any of the
commercial categories, the report must include the numbers of new,
recertified, and total commercial applicators holding valid
certifications in each of the subcategories.
A description of any modifications made to the approved
certification plan during the last 12-month reporting period that have
not been previously evaluated by EPA.
A description of any proposed changes to the certification
plan that the State anticipates making during the next reporting period
that may affect the certification plan.
The number and description of enforcement actions taken
for any violations of Federal or State laws and regulations involving
use of RUPs during the last 12-month reporting period.
A narrative summary describing the misuse incidents or
enforcement activities related to use of RUPs during the last 12-month
reporting period, including specific information on the pesticide(s)
used, circumstances of the incident, nature of the violation, and
information on the applicator's certification. This section should
include a discussion of potential changes in policy or procedure to
prevent future incidents or violations.
EPA considers these additional reporting elements necessary to
improve performance measurement and accountability for the applicator
certification program. Standardized data reporting requirements assist
in uniform program measurement, an important element of the 1993
Government Performance and Results Act (GPRA), Public Law 103-62,
August 3, 1993, 107 Stat 285. The limited requirements for, and the
wide variation in, the current State program reporting present
impediments to national program monitoring and management. Fair and
equitable assessment of State programs and the national program should
be based on the review of standardized reports. Uniform data collection
and submission would assist EPA in accurately measuring the success of
the program and would facilitate the development and use of program
measures to gauge program success. Areas requiring improvement and
targeted outreach to address problems could be identified during data
analysis.
The proposed regulatory language for the program reporting would be
located at 40 CFR 171.303(c).
iii. Civil and criminal penalty authority. The current rule is not
clear on whether States must have authority to impose both criminal and
civil penalty provisions for commercial and private applicators. EPA
has concerns that in the absence of either civil or criminal penalty
provisions, a State would not have an adequate range of enforcement
options and capabilities to respond appropriately to the wide range of
pesticide misuse situations that could arise. EPA proposes to revise
the regulation to expressly require that States have both civil and
criminal penalty provisions.
The proposed regulatory language for civil and criminal penalty
authority would be located at 40 CFR 171.303(b)(6)(iii).
iv. Commercial applicator recordkeeping. EPA proposes to clarify
what records commercial applicators must maintain. The current rule
mandates that State plans include requirements for certified commercial
applicators maintain for at least two years routine operational records
containing information on kinds,
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amounts, uses, dates, and places of application of RUPs. 40 CFR
171.7(b)(1)(iii)(E). Under this proposal, commercial applicators would
be required to keep and maintain all of the following records for the
RUPs they apply:
The name and address of the person for whom the
pesticide was applied.
The location of the pesticide application.
The size of the area treated.
The crop, commodity, stored product, or site to
which the pesticide was applied.
The time and date of the pesticide application.
The brand or product name of the pesticide
applied.
The EPA registration number of the pesticide
applied.
The total amount of the pesticide applied.
The name and certification number of the
certified applicator that made or supervised the application, and if
applicable, the name of any noncertified applicator(s) that made the
application under the direct supervision of the certified applicator.
Records related to the supervision of
noncertified applicators working under the direct supervision of a
certified applicator described in Unit XI.
This proposed recordkeeping is substantially similar to the
recordkeeping requirements established for private applicators under
the Food, Agriculture, Conservation, and Trade Act of 1990, Public Law
101-624, November 28, 1990, 104 Stat 3359, which is administered by
USDA. This proposal would ensure consistency between State
recordkeeping requirements for commercial applicators and existing
Federal recordkeeping requirements, which govern recordkeeping by
commercial applicators certified under EPA-administered certification
programs.
The proposed regulatory language for commercial applicator
recordkeeping would be located at 40 CFR 171.303(b)(6)(vi).
v. RUP dealer recordkeeping. EPA proposes to require States to have
provisions requiring RUP retail dealers to keep and maintain at each
individual dealership, for a period of at least two years, records of
each transaction where a RUP is distributed or sold by that dealership
to any person. Records of each such transaction must include all of the
following information:
Name and address of the residence or principal place of
business of each person to whom the RUP was distributed or sold, or if
applicable, the name and address of the residence or principal place of
business of each noncertified applicator to whom the RUP was
distributed or sold for use by a certified applicator.
The applicator's unique certification number on the
certification document presented to the dealer evidencing the valid
certification of the certified applicator authorized to purchase the
RUP; the State, Tribe or Federal agency that issued the certification
document; the expiration date of the certified applicator's
certification; and the categories in which the certified applicator is
certified.
The product name and EPA registration number of the RUP(s)
distributed or sold in the transaction, and the State special local
need registration number on the label of the RUP if applicable.
The quantity of the pesticide(s) distributed or sold in
the transaction.
The date of the transaction.
All 50 States currently have RUP dealer recordkeeping requirements;
EPA proposes this Federal standard to ensure consistency across the
States and to ensure all necessary information is collected. This
proposal would also ensure consistency between State recordkeeping
requirements for RUP dealers and existing Federal recordkeeping
requirements, which govern recordkeeping by RUP dealers that operate in
areas covered by EPA-administered certification programs.
The proposed regulatory language for the proposed RUP dealer
recordkeeping requirement would be located at 40 CFR
171.303(b)(6)(vii).
vi. Certified applicator credentials. The certification regulation
does not currently have requirements for what information States must
include on applicator certification documents. EPA proposes to require
States to issue appropriate credentials or documents verifying
certification of applicators, containing all of the following
information:
The full name of the certified applicator.
The certification, license, or credential number of the
certified applicator.
The type of certification (private or commercial).
The category(ies), including any application method-
specific category(ies) and subcategories of certification, in which the
applicator is certified, as applicable.
The expiration date of the certification.
A statement that the certification is based on a
certification issued by another State, Tribe or Federal agency, if
applicable, and the identity of that State, Tribe or Federal agency.
It is reasonable to expect that requiring consistent information on
applicator certification across all certifying agencies would assist
States in evaluating certification documents presented by applicators
certified in another State, would assist dealers in reviewing
certification information, and would assist enforcement agents in
evaluating the applicator's certification document during an
inspection.
The proposed regulatory text for applicator certification
credentials would be located at 40 CFR 171.303(a)(6).
vii. Reciprocal applicator certification. The current provisions do
not require States to provide specific information about State
requirements and procedures for reciprocity. States have requested that
EPA take action to establish standards to allow reciprocal
certification between States and to standardize the process. Based on
the request by States and to facilitate the certification of
applicators working in more than one State, EPA proposes to require
State certification plans to specify whether (and if so, under what
circumstances) the State would certify applicators based, in whole or
in part, on the applicator having been certified by another State,
Tribe, or Federal agency. Under the proposed rule, such certifications
would be subject to all of the following conditions:
A State may only rely on current, valid certifications
issued under an approved State, Tribal or Federal agency certification
plan, and may only rely on a certification issued by a State, Tribe or
Federal agency that issued its certification based on an independent
determination of competency without reliance on any other existing
certification or authority. For each category of certification that
will be accepted, the standards of competency in the State, Tribe or
Federal agency that originally certified the applicator must be
comparable to the standards of the accepting State.
Any certification that is based, in whole or in part, on
the applicator having been certified by another State, Tribe or Federal
agency must terminate immediately if the applicator's original
certification terminates for any reason.
Any State which chooses to certify applicators based, in
whole or in part, on the applicator having been certified by another
State, Tribe, or Federal agency, must implement a mechanism to ensure
the State will immediately terminate an applicator's certification if
the applicator's original certification terminates for any reason.
[[Page 51394]]
The State issuing a certification based, in whole or in
part, on the applicator having been certified by another State, Tribe
or Federal agency must issue an appropriate credential or document in
accordance with the requirements of this section.
The proposed regulatory text related to States issuing
certifications based on applicator certification credentials obtained
in other jurisdictions would be located at 40 CFR 171.303(a)(7).
viii. State plan maintenance, modification, and withdrawal. EPA
proposes to replace the existing provisions related to maintenance,
modification, and withdrawals of State certification plans. The
proposed revisions would clarify the types of plan changes that
constitute substantial modifications and therefore require additional
review and approval by EPA. The proposed revisions would codify
existing interim program policy and guidance issued by EPA in 2006
(Ref. 52).
The regulatory text for modification and withdrawal of State plans
will be located at 40 CFR 171.309.
4. Costs. EPA estimates the proposed revisions to the State
certification plan requirements will include 3 costs: Revising State
requirements to meet EPA's proposed standards, updating State plans for
submission to and approval by EPA, and adding a requirement for dealers
to maintain records of RUP sales (Ref. 3). The current rule requires
States to require commercial applicators to keep records; the proposal
merely clarifies the content of the records and therefore is not
expected to result in costs to the applicator or States.
EPA estimates that States would incur a one-time cost of about
$119,000 annually for the first two years to revise and finalize
pesticide applicator laws and regulations that meet or exceed EPA's
proposed requirement (Ref. 3). Once States have revised their laws and
regulations, they will need to draft and submit a revised plan for
applicator certification to EPA for approval. Since EPA already
requires States to update plans as appropriate and to report necessary
information to EPA annually, EPA estimates the cost of this process
would be about $4,000 annually for the first two years after
implementation across all States (Ref. 3).
Finally, it is reasonable to expect that the requirement for RUP
dealers to maintain records of RUP sales will not impose any burden on
the regulated community. All States already require RUP applicators to
maintain such records. However, a few States may have to do additional
revisions to their laws and regulations to ensure the State
recordkeeping requirement mirrors the proposed Federal requirement.
There is no estimated cost associated with this proposal because all
States already require RUP dealers to maintain records of sales (Ref.
3).
5. Alternative options considered by EPA but not proposed. EPA
considered requiring States to make available publically a list of all
applicators certified by the State. Under this alternative, such a list
could be made available electronically, e.g., via the internet. Such a
list could be used by the public to verify whether the pest control
operator hired to perform the application was certified. States already
maintain information on the persons who hold valid certifications.
States maintain the information in varying formats--some keep paper
files, while others maintain an electronic database that is updated in
real time as certifications are earned and expired. Some States have
chosen to publish the information on the internet. Some States may have
restrictions on publishing information online, but would make it
available upon request. Because the States do not have a uniform manner
to track and make available electronically the names of all certified
applicators, and the public may already have access to this information
in varying forms in each State, it is not necessary impose a
requirement at the Federal level.
6. Request for comment. EPA specifically requests comment on the
following questions:
EPA is not proposing to require States to adopt all
applicable Federal categories to address reciprocity between
jurisdictions, because it would burden States and applicators, and
protections may not be improved. Are there approaches to facilitate
reciprocity that would minimize burdens and disruption at the lead
agency level and improve protections? Please describe these approaches
and how they may be implemented.
Should EPA require all States, Tribes, and Federal
agencies to adopt the same certification standards and to mandate
reciprocity between jurisdictions? Please describe benefits and
drawbacks to such a requirement.
Are there benefits, that EPA has not considered, to
requiring States to adopt Federal certification categories? If so,
please explain the benefits and how they would impact competency
standards for national certification categories.
Would the proposed reporting and recordkeeping
requirements impose unnecessary burden on States, farmers, small
businesses, or other entities? If so, who would bear unnecessary burden
and why?
Should EPA consider requiring records to be retained for a
different period? If so, what how long should records be retained and
why?
Are there other types of information that EPA should
consider collecting from States, RUP dealers, or commercial
applicators?
Is there any other information related to reciprocal
certification that EPA should consider incorporating into the
regulation? If so, please indicate which information should be added or
deleted and why.
Should EPA consider adding to or deleting from the
required elements of the applicator certification document? If so,
please indicate which information should be added or deleted and why.
Should EPA consider requiring States to make available
publically a list of all applicators holding a valid certification? If
so, should the list be available electronically? Should the list be
updated in real time, or would periodic updates be acceptable? If
periodic updates are chosen, what period would be reasonable?
Should EPA consider requiring certifying authorities to
require their commercial applicators to report incidents that would
meet the reporting criteria of 40 CFR 159.184 if known to the pesticide
registrant?
XVI. Establish Provision for Review and Approval of Federal Agency
Plans
1. Overview. In order to codify Agency policy on Federal agency
certification plans, EPA proposes to delete from the current regulation
the section on GAP (40 CFR 171.9) and to codify EPA's 1977 policy on
review and approval of Federal agency plans.
2. Existing regulation. The certification rule covers GAP
certifications, outlining a process for certifying employees of Federal
agencies to use RUPs in the course of their duties under a government-
wide GAP. 40 CFR 171.9. The 1974 proposal (Ref. 61) included a special
process for certifying employees of Federal agencies, but the process
was not included in the final rule. EPA subsequently outlined a
proposed process for certifying employees of Federal agencies under a
government-wide GAP (Ref. 62). The GAP certification process was
included in the final revised rule (Ref. 24), but a GAP was never
developed or implemented by EPA or the Federal government. In 1977, EPA
announced a policy that provided an alternative approach for Federal
employee certification (Ref. 60). Under the 1977 policy, EPA allows
Federal agencies to
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submit their own plans for the certification of RUP applicators; EPA
approves the Federal plans provided they meet or exceed EPA's
standards. In the 1977 policy, EPA noted that the standards for Federal
agency plans were to be essentially equal to or more stringent than
requirements for State plans. Four Federal agencies currently have EPA-
approved Federal agency plans. The Department of Defense (DOD) and USDA
have certification plans that were revised and approved in 2009. The
Departments of Energy (DOE) and the Interior (DOI) have plans that were
approved prior to 1990.
3. Details of the proposal/rationale. EPA proposes to delete the
current text at 40 CFR 171.9. EPA proposes to codify the 1977 policy
covering Federal agency plans (Ref. 60), and to clarify the standards
that Federal agencies must meet. The proposed revisions include the
following requirements: Federal agencies must comply with all
applicable standards for certification, recordkeeping, and other
similar requirements for State/Tribal plans; Federal agencies must
ensure compliance with applicable State pesticide use laws and
regulations, including those pertaining to special certification
requirements and use reporting, when applying pesticides on State
lands; Federal agencies must comply with all applicable Executive
Orders; and Federal agencies must conform to standards established for
States related to maintenance of plans and annual reporting.
The proposed regulatory language concerning Federal agency plans
will be located at 40 CFR 171.305.
4. Costs. EPA estimates negligible burden associated with this
requirement (Ref. 3). Although Federal agencies with existing plans
would be required to revise and resubmit their certification plans to
be in compliance with the revised proposed rule resulting in some
administrative burden for these Federal agencies, EPA believes that the
administrative burden associated with plan revisions would not be
significant for two reasons. First, the four Federal agencies currently
administering certification plans appear to be the only Federal
agencies interested in certifying applicators and so this proposal will
not have a substantial impact on most Federal agencies. Second, Federal
agencies with existing certification plans have revised their plans to
address changing needs within their certification programs, so
revisions required by this proposal would not significantly increase
the burden above that which they already incur.
5. Request for comment. EPA specifically requests comment on the
following questions:
Is there any reason for EPA to retain the GAP provisions
in the current rule? If so, why?
XVII. Clarify Options for Establishing a Certification Program in
Indian Country
1. Overview. In order to provide more workable applicator
certification options in Indian country, EPA proposes to revise the
mechanisms available to Tribes for certifying pesticide applicators.
2. Existing regulation. The current rule provides three options for
applicator certification programs in Indian country: Tribes may utilize
State certification to certify applicators (requires concurrence by the
State(s) and an appropriate State-Tribal cooperative agreement); Tribes
may develop and implement a Tribal certification plan (requires Tribes
to develop and submit an appropriate Tribal certification plan to EPA
for approval); or EPA may administer a Federal certification plan for
applicators in Indian country, such as EPA's national plan for Indian
country (Ref. 1).
Currently, only a few Tribes have been approved by EPA to
administer certification plans. In those areas of Indian country
without an EPA-approved State or Tribal certification plan in effect,
EPA administers a certification plan to ensure that RUPs are used only
by certified applicators or noncertified applicators working under
their direct supervision.
3. Stakeholder information considered by EPA. Consistent with EPA's
Indian Policy and Tribal Consultation Policy, EPA engaged in a formal
consultation process with Tribes summarized in Unit XXII. (Ref. 63).
4. Details of the proposal/rationale. EPA proposes to revise the
mechanisms for establishing applicator certification programs in Indian
country. EPA would revise the option where a Tribe relies on State
certification and the option for EPA-administered certification plans
in Indian country. EPA would also amend the requirements for Tribal-
implemented certification plans to require Tribal plans to incorporate
the proposed revisions to applicator certification standards.
First, the proposal would revise the current option for Tribes to
rely on State certification by eliminating the requirement for Tribes
to enter into cooperative agreements with States. This option would be
replaced by an option to enter into agreements with EPA Regional
offices to establish certification programs in Indian country. The
proposed revisions would allow Tribes to enter into agreements with EPA
to recognize the certification of applicators who hold a certificate
issued under one or more specific EPA-approved State, Tribal or Federal
agency certification plans, without the need for State-Tribal
cooperative agreements and with little burden on States or Tribes. EPA
would retain relevant enforcement responsibilities in areas of Indian
country covered by a certification plan implemented in this manner.
Second, EPA proposes to clarify that EPA can include multiple
Tribes and/or multiple geographic areas of Indian country under one
single EPA-administered plan. This option facilitates the
implementation of a nation-wide certification plan that would cover
applicators using RUPs in different, non-contiguous parts of Indian
country. This proposal is merely a clarification of the existing rule,
and EPA has already established a national plan for certification of
applicators in Indian country. EPA implemented its national plan for
Indian country in 2014 (Ref. 1). The EPA-administered plan serves those
areas of Indian country throughout the United States where no other
EPA-approved certification mechanism exists.
Third, the proposal would update the requirements for Tribal plans
by requiring those Tribes that choose to manage their own certification
plan to adopt the new standards being proposed for State and Federal
agency certification plans in regard to initial certification and
recertification of private and commercial applicators and the training
and supervision of noncertified applicators who apply RUPs under the
direct supervision of a certified applicator. The proposal would also
eliminate current requirements for States to include in their State
certification plans references to any agreements with Tribes for
recognizing the States' certificates.
The proposed revisions would ensure that Tribes are generally
subject to the same certification program standards applicable to
States, Federal agencies, and EPA-administered programs. However,
certain separate requirements would be included in the Indian country
provision relating to the exercise of criminal enforcement authority.
EPA recognizes that certain limitations exist regarding Tribes' ability
to exercise criminal enforcement authority. In such circumstances, it
is appropriate to retain primary criminal enforcement authority with
the Federal government and EPA has proposed requirements for Tribes and
EPA to
[[Page 51396]]
enter into relevant agreements regarding the exchange of potential
investigative leads. These requirements are similar to EPA's approach
to criminal enforcement authority in the context of other EPA rules
addressing Tribal programs under Federal environmental laws. See, e.g.,
40 CFR 49.8. The proposed revisions would enhance the ability of Tribal
programs to develop and implement certification plans and programs for
those Tribes that choose to manage their own certification plans, and
would provide practicable alternatives for those Tribes that do not.
The proposed revisions may require some Tribes with a current, EPA-
approved certification plan to make changes to Tribal laws,
regulations, or code. EPA intends to consider the potential impacts of
Tribal legislative changes and Tribal plan revision when establishing
effective dates for the final rule.
The regulatory language for the proposed options for applicator
certification in Indian country would be located at 40 CFR 171.307.
5. Costs. The costs associated with these changes should be
negligible because they primarily result in clarification of
requirements and policy, not in the imposition of substantial new
requirements or obligations on the part of Tribes (Ref. 3). EPA does
not believe the proposed revisions would place any unreasonable burden
on Tribes because they do not require Tribes to implement certification
programs. These proposed revisions would require existing Tribal
certification plans to be revised and resubmitted to EPA for review and
approval. EPA estimates the costs to these Tribes would be similar to
the costs to States for updating and submitting to EPA for approval a
revised certification plan. Because there are currently only four
Tribes with an EPA-approved certification plan the proposed changes to
certification mechanisms in Indian country should not result in a
significant impact on Tribal entities or programs as a whole.
6. Request for comment. EPA specifically requests comment on the
following questions:
Are there other mechanisms EPA should consider for
certification of RUP applicators in Indian country? If so, please
describe the additional mechanism(s), how they would be implemented,
and the benefit to Tribes, applicators, human health, and the
environment.
XVIII. Revise Provisions for EPA-Administered Plans
1. Overview. To update requirements for EPA-administered plans to
conform with the proposed changes to the regulation, EPA proposes to
amend the section of the rule dealing with EPA-administered plans.
2. Existing regulation. The current rule establishes requirements
for EPA-administered certification in States or areas of Indian country
without EPA-approved certification plans in place, including specific
standards for certification and recertification of pesticide
applicators. 40 CFR 171.11.
3. Details of the proposal/rationale. EPA proposes to revise the
current section outlining the requirements for an EPA-administered
Federal certification plan to incorporate the proposed changes to State
certification plans related to RUP applicator certification,
recertification, and noncertified applicator qualifications, as well as
plan reporting and maintenance requirements. The rules governing EPA-
administered certification programs should be constructed in a way that
minimizes administrative burden on EPA and the regulated community and
reduces costs to taxpayers, while still providing EPA with the tools
necessary to protect human health and the environment. The proposed
revisions would make requirements for the certification and
recertification of RUP applicators and supervision of noncertified
applicators parallel to the requirements proposed for States, Tribes,
and other Federal agencies.
The proposed regulatory language covering EPA-administered plans
would be located at 40 CFR 171.311.
4. Costs. EPA estimates the costs associated with this proposal
would be negligible (Ref. 3). EPA currently administers two
certification plans--one for the Navajo Tribe (Ref. 2) and one for
certification in Indian country (Ref. 1). It is reasonable to expect
that the costs of updating these plans to conform to the proposed
changes would be relatively low.
5. Request for comment. EPA specifically requests comment on the
following questions:
Should EPA consider other revisions to the provisions for
EPA-administered plans? If so, please describe the additional
revision(s), how they would be implemented, and the benefit(s) to
applicators, human health, and the environment.
XIX. Revise Definitions and Restructure 40 CFR Part 171
A. Improved Definitions
EPA proposes to revise the definitions in the certification
regulation to add several new definitions and to eliminate several
unnecessary definitions. EPA expects that improved definitions would
reduce the likelihood of misinterpretation and thereby improve
compliance and enforceability.
These proposed revisions to the definitions adopt more widely used
and commonly accepted ``plain English'' language, and add clarity and
consistency to the rule. The proposed revisions to the definitions also
help address issues raised by State regulatory partners and other
program stakeholders. EPA does not believe the proposed revisions to
the definitions will add new regulatory requirements on the regulated
community or substantially increase regulatory burden.
The revised and new definitions would be located at 40 CFR 171.3.
1. Revised definitions. The Agency proposes to revise the following
existing definitions: ``compatibility'', ``dealership'', ``non-target
organism'', ``ornamental'', ``principal place of business'', and
``toxicity''.
2. New definitions. The Agency also proposes to add the following
new definitions: ``application'', ``application method'', ``fumigant'',
``fumigation'', ``Indian country'', ``Indian Tribe'', ``noncertified
applicator'', ``personal protective equipment'', ``use'', and ``use-
specific instructions''.
3. Definitions to be deleted. The Agency proposes to delete the
following existing definitions from 40 CFR part 171 because they are no
longer necessary as a result of other proposed revisions to the
existing rule or are already defined in FIFRA: ``Act'', ``Agency'',
``forest'', ``uncertified person'', and ``hazard''.
4. Request for comment. EPA specifically requests comment on the
following questions:
Are there other terms that EPA should consider adding,
clarifying, redefining, or eliminating from the rule? If so, please
provide detail about the term(s) and rationale for change.
B. Restructuring of 40 CFR Part 171
In order to improve clarity and implement the principles of using
plain language in regulations, EPA proposes to reorganize the structure
of 40 CFR part 171. EPA expects the revised 40 CFR part 171 will be
easier to read and understand, improving compliance by applicators and
other program stakeholders.
1. Existing 40 CFR part 171. At this time 40 CFR part 171 is a
single part with no subparts. The first sections (40 CFR 171.1 through
171.6) describe the standards for commercial and private applicators,
requirements for persons working under the direct supervision of a
certified applicator, definitions, and a
[[Page 51397]]
statement of purpose. The second half of the rule (40 CFR 171.7 through
171.11) describes the procedures for States, Tribes, Federal agencies,
and EPA to administer a certification program. The rule has a section
titled ``Government Agency Plan'' describing a plan covering the entire
Federal government that was not implemented. EPA has received feedback
that this section is difficult to understand and seems irrelevant.
2. This proposal. The proposal would reorganize the rule into four
subparts: ``General Provisions'', ``Certification Requirements for
Applicators of Restricted Use Pesticides'', ``Supervision of
Noncertified Applicators'', and ``Certification Plans''. The General
Provisions section would include the sections on scope, definitions,
and effective date. The Certification Requirements for Applicators of
Restricted Use Pesticides section would include all standards for the
certification and recertification of commercial and private
applicators. The Supervision of Noncertified Applicators section would
include all relevant standards for the certified applicator and the
noncertified applicator using RUPs under his or her direct supervision.
The Certification Plans section would include requirements for States,
Tribes, and Federal agencies to submit and modify their certification
plans, as well as a description of an EPA-administered applicator
certification plan.
EPA expects that the restructured rule will facilitate
understanding of the rule by applicators and authorized agencies
because it deletes obsolete provisions and uses clearer language.
3. Alternative options considered by EPA but not proposed. EPA
considered two additional changes to the organization of the
regulation. First, EPA considered moving the paragraph titled
``Determination of Competency'' proposed as 40 CFR 171.103(a) to the
beginning of subpart B as an independent, introductory section. Second,
EPA considered moving the paragraph titled ``Examination Standards''
proposed as 40 CFR 171.103(b) to subpart D related to certification
plans. Keeping the standards related to determining competency and
administering competency exams in the same section as the specific
competency standards that applicators must meet is a more reasonable
organization of the regulation because these two sections are related
to how commercial applicator competency is determined. Therefore, EPA
does not propose the two changes discussed in this unit.
4. Request for comment. EPA specifically requests comment on the
following questions:
Is the restructuring clearer? Is it easier to read and
understand?
Are there other ways that EPA could simplify or clarify 40
CFR part 171? If so, please describe.
Should EPA consider alternate organizations of the
regulation? If so, please provide a proposal and rationale for
reorganization.
XX. Implementation
EPA proposes to make the final rule effective 60 days after the
promulgated rule is published in the Federal Register. Compliance with
certain provisions of the rule would be delayed. Existing certification
plans could remain in effect for up to four years after the effective
date of the final rule. Beginning four years after the effective date
of the final rule, a State, Tribe, Federal agency, and EPA would only
be permitted to certify applicators of RUPs in accordance with a
certification plan that meets or exceeds all of the applicable
requirements of the final regulation and that has been approved by EPA
after the effective date of the rule.
States, Tribes, and Federal agencies administering EPA-approved
certification plans would be required to submit amended certification
plans to EPA for approval within two years of the effective date of the
final rule. EPA intends to review and respond to all certification
plans submitted within 2 years of the effective date. This would allow
ample time for EPA, Tribes, Federal agencies, and State regulators time
to make the necessary changes to certification plans, and for these and
other stakeholders to implement the new certification procedures. EPA
expects that applicators may need to be certified in new categories and
noncertified applicators could need training to meet the new standard.
States, Tribes, and Federal agencies administering EPA-approved
certification plans would need to become familiar with the new
regulation and conduct outreach to the regulated community. Certified
applicators and trainers of noncertified applicators would have to
become familiar with the noncertified applicator training content,
ensure that they meet any eligibility requirements, and obtain training
materials if necessary. As resources permit and if the final rule
includes the relevant provisions from the proposal, EPA intends to
develop training materials for noncertified applicators working under
the direct supervision of a certified applicator and for certification
in a non-soil fumigation category. Materials currently exist that can
be modified to support general certification for private applicators,
and EPA has developed and distributed to States training materials for
aerial applicators and soil fumigation categories.
To facilitate implementation, EPA plans to issue a guidance
document at the time the final rule is published, to provide assistance
to States, and to conduct outreach to potentially affected parties.
EPA requests comment on the proposed implementation of the rule.
Specifically, EPA requests feedback on the following:
Would States and Tribes be able to amend and submit
revised certification plans for EPA approval within 2 years of the
effective date of the final rule?
If the proposed implementation schedule does not seem
reasonable, please provide specific comments on why the proposal is not
reasonable and provide specific suggestions of an alternate schedule
and why it would be reasonable.
Would States, Tribes, and Federal agencies need additional
time after EPA approves the revised certification plan that meets or
exceeds the requirements of the final rule in order to bring certified
applicators into compliance with the new requirements? If so, how much
time would be needed? What activities would be conducted?
Would the implementation schedule be reasonable if EPA
provided exams and training materials for the proposed additional
categories?
What support would States, Tribes, and Federal agencies
require from EPA during the implementation of the provisions of the
final rule?
If EPA evaluates the effectiveness and/or the impacts and
benefits of the rule, what timeframe should be used to conduct the
evaluation, e.g., should EPA begin a review after the rule is fully
implemented or a specific time period after full implementation? For
how long should EPA conduct the evaluation? Please provide additional
information on methodology that could be used to conduct any
evaluation.
XXI. References
The following is a listing of the documents that are specifically
referenced in this rulemaking. The docket includes these documents and
other information considered by EPA. For assistance in locating these
other documents, please consult the person listed under FOR FURTHER
INFORMATION CONTACT.
[[Page 51398]]
1. EPA. Final EPA Plan for the Federal Certification of
Applicators of Restricted Use Pesticides Within Indian Country;
Notice of Implementation. Notice. Federal Register (79 FR 7185,
February 6, 2014) (FRL-9904-18).
2. EPA. Federal Plan for Certification of Restricted Use
Pesticide Applicators in Navajo Indian Country; Notice of
Implementation; and Announcement of Availability of Form to Request
Pesticide Applicator Certification in Navajo Indian Country. Notice.
Federal Register (72 FR 32648, June 13, 2007) (FRL-8078-9).
3. EPA. Economic Analysis of Proposed Revisions to the
Applicator Certification Regulation. July 29, 2015.
4. EPA. Pesticides; Agricultural Worker Protection Standard
Revision. Proposed Rule. Federal Register (79 FR 15444, March 19,
2014) (FRL-9395-8).
5. EPA. Certification Plan and Reporting Database. http://cpard.wsu.edu/reports/menu.aspx.
6. EPA. 1987-2004 Annual Certified Applicator Data. http://www.epa.gov/oppfead1/safety/applicators/data.htm.
7. DOL. U.S. Bureau of Labor Statistics. Occupational Outlook
Handbook. 2010-11 Library Edition. Bulletin 2800. Washington, DC.
8. EPA. OPP Report on Incidence Information: The Baseline. 2007.
9. Harchelroad, F., et al. Treated vs Reported Toxic Exposures:
Discrepancies Between a Poison Control Center and a Member Hospital.
Veterinary and Human Toxicology, April 1990, Vol. 32, pp. 156-159.
10. Chafee-Bahamon, C., et al. Patterns in Hospitals' Use of a
Regional Poison Information Center. American Journal of Public
Health. April 4, 1983. Vol. 73, pp. 396-400.
11. Veltri, et al. Interpretation and Uses of Data Collected in
Poison Control Centres in the United States. Medical Toxicology and
Adverse Drug Experience, November-December 1987. Vol. 6, pp. 389-97.
12. NIOSH. Data from the Sentinel Event Notification System for
Occupational Risk--Pesticides Program. 2014. http://wwwn.cdc.gov/niosh-survapps/sensor/.
13. NIH. Agricultural Health Study. http://aghealth.nih.gov.
14. Arthur, W., Bennett Jr., W., Stanush, P., and McNelly, T.
Factors That Influence Skill Decay and Retention: A Quantitative
Review and Analysis. Human Performance. 1998, Vol. 11, pp. 57-101.
15. Calabro, K, Bright, K and Kouzekanani, K. Long-Term
Effectiveness of Infection Control Training among Fourth Year
Medical Students. Medical Education Online, Vol. 5, pp. 1-7.
16. Lee, S-J., Mehler, L., Beckman, J., Diebolt-Brown, B.,
Prado, J., Lackovic, M., et al. Acute Pesticide Illnesses Associated
with Off-Target Pesticide Drift from Agricultural Applications.
Environmental Health Perspectives. 2011, Vol. 119, pp. 1162-1169.
17. EPA. EPA. Chloropicrin, Dazomet, Metam Sodium/Potassium, and
Methyl Bromide Reregistration Eligibility Decisions; Notice of
Availability. Notice. Federal Register (73 FR 40871, July 16, 2008)
(FRL-8372-3).
18. EPA. Review of Methyl Parathion Incident Reports. February
5, 1998.
19. EPA. Office of the Inspector General. Result of Assessment
of Controls Over Emergency Removal Actions at Methyl Parathion
Sites. Report No. E1SFB7-06-0020-7400069. September 23, 1997.
20. Casey, B.J., Jones, R.M. and Hare, T.A. The Adolescent
Brain. Annals of the New York Academy of Sciences. March 2008, pp.
111-126.
21. HHS, PHS, CDC, NIOSH. National Institute for Occupational
Safety and Health (NIOSH) Recommendations to the U.S. Department of
Labor for Changes to Hazardous Orders. May 3, 2002.
22. Cauffman, E., and Steinberg, L. (Im) maturity of Judgment in
Adolescence: Why Adolescents May Be Less Culpable Than Adults.
Behavioral Sciences and the Law. 2000, Vol. 18, pp. 741-760.
23. EPA. Certification of Pesticide Applicators. 40 CFR part
171. Federal Register (39 FR 36446, October 9, 1974) (FRL-269.1).
24. EPA. Submission and Approval of State Plans for
Certification of Commercial and Private Applicators of Restricted
Use Pesticides. Federal Register (40 FR 11698, March 12, 1975) (FRL-
340.6).
25. EPA. Federal Certification of Pesticide Applicators in
States or Indian Reservations Where There is No Approved State or
Tribal Certification Plan in Effect. Final Rule. Federal Register
(43 FR 24834, June 8, 1978) (FRL-881-7).
26. EPA. Certification of Pesticide Applicators; Expansion of
Recertification Time Period. Final Rule. Federal Register (48 FR
29854, June 29, 1983) (FRL-2338-8).
27. EPA. Certification of Pesticide Applicators; Recordkeeping
and Reporting Requirements. Final Rule. Federal Register (48 FR
53972, November 29, 1983) (FRL-2402-7).
28. EPA. Certification of Pesticide Applicator. Proposed Rule.
Federal Register (55 FR 46890, November 7, 1990) (FRL-2402-7).
29. SFIREG. Report of the EPA/SFIREG Certification and Training
Task Force. August 1985.
30. CTAG. Pesticide Safety for the 21st Century. 1999.
31. EPA. Report on the National Assessment of the Pesticide
Worker Safety Program. May 6, 2005. http://www.epa.gov/oppfead1/safety/workshops.htm.
32. EPA. Report on the National Assessment of EPA's Pesticide
Worker Safety Program. 2005.
33. EPA. Pesticide Program Dialogue Committee Worker Safety
Regulation Change Subgroup, Summary of PREP and PPDC Comments.
Washington, DC. 2007.
34. EPA, OMB, SBA. Small Business Advocacy Review Panel on EPA
Planned Revisions to Two Related Rules: Worker Protection Standard
for Agricultural Pesticides (RIN 2070-AJ22); and Certification of
Pesticide Applicators (RIN 2070-AJ20). Final Report. November 3,
2008.
35. Calvert, G M, et al. Acute Pesticide-related Illnesses Among
Working Youths, 1988-1999. American Journal of Public Health. April
2003, Vol. 93, pp. 605-610.
36. CTAG. Requiring Written Examinations for Approval of State
Certification Programs. 2003.
37. EPA. Pesticide Applicator Certification in Indian Country.
http://www2.epa.gov/pesticide-applicator-certification-indian-country/training-private-applicators-indian-country.
38. EPA. Chloropicrin Revised Risk Assessments; Notice of
Availability and Solicitation of Risk Reduction Options. Notice.
Federal Register (72 FR 24295, May 2, 2007) (FRL-8125-9).
39. EPA. Amended Reregistration Eligibility Decision for
Dazomet. 2009.
40. EPA. Amended Reregistration Eligibility Decision for the
Methyldithiocarbamate Salts (Metam-sodium, Metam-potassium) and
Methyl Isothiocyanate (MITC). 2009.
41. EPA. Amended Reregistration Eligibility Decision for Methyl
Bromide. 2009.
42. AAPCO. Letter to EPA Re: Registration Eligibility Decision
(RED) for Soil Fumigant Dockets. October 30, 2008.
43. EPA. Pesticide Applicator Certification and Training for
Soil Fumigation Category/Subcategory. Last updated: November 2012.
http://www2.epa.gov/soil-fumigants/soil-fumigant-training-certified-applicators.
44. NASDARF. Soil Fumigation Manual. 2012.
45. NASDARF. Aerial Applicator's Manual. 2009.
46. AAPCO. Letter to EPA. January 26, 2010. http://www.aapco.org/documents/FumigantLtr_Owens012610.pdf.
47. Dwinell, Steven on behalf of SFIREG. Letter to EPA. December
23, 2010. http://www.aapco.org/documents/SFIREGtoBradburyKeigwin122310.pdf.
48. AAPSE. Reregistration Eligibility Decision (RED) for Soil
Fumigant Dockets. Letter to EPA. October 29, 2008. http://aapse.ext.vt.edu/aapse/sites/default/files/AAPSE%20comments%20on%20fumigants%20RED.pdf.
49. AAPSE. Letter to EPA. July 28, 2009. http://aapse.ext.vt.edu/aapse/sites/default/files/FINAL%20EPA_LabelMandatedTraining2008.pdf.
50. EPA. Reregistration Eligibility Decision: Sodium
Fluoroacetate. EPA 738-R-95-025. September 1995.
51. EPA. Reregistration Eligibility Decision: Sodium Cyanide.
EPA 738-R-94-020. September 1994.
52. EPA. Interim National Program Guidance for EPA Regional
Offices on EPA's Pesticide Applicator Certification Program (40 CFR
part 171). July 2006.
53. CTAG. Exam Administration and Security Procedures Manual.
National Association of State Departments of Agriculture Research
Foundation, 2006.
54. CTAG. Positive Identification Requirement for Pesticide
Applicator Certification Exams. 2006.
55. CTAG. Pesticide Applicator Recertification: Verifying
Attendance at Recertification Events. 2009.
56. CTIA, The Wireless Association. Wireless Quick Facts. Last
updated: November 2013. http://www.ctia.org/your-wireless-life/how-wireless-works/wireless-quick-facts.
57. CTAG. Minimum Age Requirement for Certification to Use
Restricted Use Pesticides (RUP). 2004.
[[Page 51399]]
58. Masten, S., Foss, R., Marshall, S. Graduated Driver
Licensing Program Component Calibrations and Their Association with
Fatal Crash Involvement. Accident Analysis and Prevention. August
2013, Vol. 57, pp. 105-113.
59. Williams, A. and Shults, R. Graduated Driver Licensing
Research, 2007-Present: A Review and Commentary. Journal of Safety
Research. April 2010, Vol. 41, 2, pp. 77-84.
60. EPA. Federal Agency Certification of Federal Employees to
Apply Restricted Use Pesticides; Intent to Recognize Under Section 4
of the Federal Insecticide, Fungicide, and Rodenticide Act. Notice.
Federal Register (42 FR 41907, August 19, 1977) (FRL-779-7).
61. EPA. Certification of Pesticide Applicators. Proposed Rule.
Federal Register (39 FR 6730, February 22, 1974) (FR Doc. 74-4266).
62. EPA. Pesticide Programs; Submission and Approval of State
Plans for Certification of Commercial and Private Applicators.
Proposed Rule. Federal Register (40 FR 2528; January 13, 1975) (FRL-
320-4).
63. EPA. Summary of Consultation with Tribes on the
Certification of Pesticide Applicators Regulation. 2010.
64. EPA. Information Collection Request (ICR) for the
Certification of Pesticide Applicators (Proposed Rule). EPA ICR No.
2499.01 and OMB Control No. 2070-[NEW]. 2015.
XXII. FIFRA Review Requirements
Under FIFRA section 25(a), EPA has submitted a draft of the
proposed rule to the Secretary of the Department of Agriculture, the
FIFRA Scientific Advisory Panel (SAP), and the appropriate
Congressional Committees. USDA provided comments on this proposed rule,
copies of which, along with EPA's responses, are located in the docket
for this rulemaking. The SAP waived its review of this proposal on
September 4, 2014.
XXIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review; and,
Executive Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action because it may raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866 (58 FR 51735, October 4, 1993). Accordingly, EPA submitted the
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the docket. EPA prepared an economic analysis of the
potential costs and benefits associated with this action, which is
available in the docket and summarized in Unit III.B. (Ref. 3).
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et
seq. The Information Collection Request (ICR) document that the EPA
prepared has been assigned EPA ICR number 2499.01 (OMB Control No.
2070-NEW). You can find a copy of the ICR in the docket for this
proposed rule, and it is briefly summarized here (Ref. 64).
The information collection activities related to the existing
certification regulation are already approved by OMB in an ICR titled
``Certification of Pesticide Applicators'' (EPA ICR No. 0155.10; OMB
Control No. 2070-0029). Therefore, EPA ICR number 2499.01 (OMB Control
No. 2070-NEW) only addresses the proposed changes to the certification
regulation. These include:
Updating the information States, Tribes, and Federal
agencies report to EPA.
Updating the process and requirements for modifying a
certification plan.
Adding a provision for States to require recordkeeping by
RUP dealers.
Adding specific requirements for noncertified applicator
qualification through training.
Adding a provision for commercial applicators to maintain
records of noncertified applicator training.
1. Respondents/affected entities. i. Certified applicators; private
and commercial. The number of applicators is based on the Certification
Plan and Reporting Database for the years 2008 to 2013 (CPARD, 2014),
there are 364,579 commercial applicators and 455,278 private
applicators.
ii. Noncertified applicators under the direct supervision of
certified applicators. It is estimated that there are 947,275
noncertified applicators who apply RUPs under the direct supervision of
commercial certified applicators, and there are 81,678 noncertified
applicators under the direct supervision of private certified
applicators.
iii. RUP dealers. EPA estimates that there are approximately 10,000
retail dealers. According to the Agricultural Retailers Association,
there are approximately 9,000 agricultural retailers in the United
States. Not all are licensed to sell RUPs. EPA estimates that there are
far fewer nonagricultural pesticide retailers licensed to sell RUPs,
given that RUPs are generally not labeled for use in residential and
other public areas, even by a certified applicator.
iv. Authorized agencies. Authorized agencies are the entities that
are federally authorized to administer applicator certification plans
under 40 CFR part 171. Authorized agencies includes States,
territories, federally recognized Tribes and Federal agencies
authorized to operate certification programs. In addition to the 50
States, there are 4 plans for the US territories (Puerto Rico, DC, US
Virgin Islands, and Pacific Islands), 4 Tribal plans, and 5 approved
Federal agency certification plans. Federal agencies include DOD, DOE,
USDA APHISPPQ, USDA Forest Service (the 2 USDA plans are separate
plans), and DOI (the DOI plan covers 3 agencies within DOI BLM, BIA and
NPS, but no others). Wage rates vary according to the entity.
2. Respondent's obligation to respond. Mandatory (7 U.S.C. 136-
136y, particularly sections 136a(d), 136i, and 136w).
3. Estimated number of respondents. 1,749,265.
4. Frequency of response. Rule familiarization will occur annually
for the first 3 years. Revising and submitting certification plans will
occur one time. Training of noncertified applicators will occur
annually. Recordkeeping of training of noncertified applicators working
under the direct supervision of commercial applicators will occur
annually. Recordkeeping of RUP sales will occur each time an RUP is
sold, which EPA estimates will be 39 times per year.
5. Total estimated burden. 1,853,000 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
6. Total estimated cost. $57,363,250 annualized capital or
operation and maintenance costs.
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 the
EPA's regulations in 40 CFR are listed in 40 CFR part 9, and on
applicable collect instruments.
Submit your comments on EPA's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs via email to
[email protected], Attention: Desk Officer for the EPA.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after receipt, OMB must
[[Page 51400]]
receive comments no later than September 23, 2015. The EPA will respond
to any ICR-related comments in the final rule.
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 RFA, 5 U.S.C.
601 et seq. The small entities subject to the requirements of this
action are private applicators, commercial applicators, and
noncertified applicators using RUPs under their direct supervision. The
Agency has determined that for private applicators, average impacts of
the rule represent less than 1% of annual sales revenue for the average
small farm and even to small-small farms with sales of less than
$10,000. Impacts to the smallest farms, especially in high-impact
States, could exceed 2% of annual sales revenue but the number of farms
facing such impacts is small relative to the number of small farms
affected by the rule. For commercial applicators, average impacts of
the rule represent less than 0.1% of annual revenue for the average
small firm. The impacts are expected to be around 0.1% of annual
revenue even for the high cost scenarios. Details of this analysis are
presented in the Economic Analysis for this action (Ref. 3).
Although EPA is not required by the RFA to convene a Small Business
Advocacy Review (SBAR) Panel because this proposal would not have a
significant economic impact on a substantial number of small entities,
EPA has nevertheless convened a panel to obtain advice and
recommendations from small entity representatives potentially subject
to this rule's requirements. A copy of the SBAR Panel Report is
included in the docket for this rulemaking (Ref. 34).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531 through 1538, and does not
significantly or uniquely affect small governments. The proposed rule
requirements would primarily affect certified applicators of RUPs. The
total estimated annualized cost of the proposed rule is $47.2 million
(Ref. 3).
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. However,
this action may be of significant interest to State governments.
Consistent with the EPA's policy to promote communications between the
EPA and State and local governments, EPA consulted with State officials
early in the process of developing this rulemaking to permit them to
have meaningful and timely input into its development. EPA worked
extensively with State partners when considering revisions to the
existing regulation and solicited feedback from States in a number of
ways, as discussed in Unit III. EPA carefully considered the input of
State partners during the development of this rulemaking in meetings
with State pesticide regulatory officials and with groups representing
State pesticide regulatory agencies. In the spirit of Executive Order
13132, EPA specifically solicits comment on this rulemaking from State
and local officials.
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
would require Tribes that certify applicators to perform RUP
applications in Indian country to comply with the revised regulation.
EPA currently directly administers a national certification plan for
Indian country (Ref. 1) and has implemented a specific certification
plan for the Navajo Nation (Ref. 2). As proposed, this rule provides
Tribes with the option to develop and administer their own applicator
certification programs, to participate in the EPA-administered
applicator certification program for Indian country, or to enter into
an agreement with EPA regarding administration of an applicator
certification program. As explained in Unit XVII., EPA does not believe
the proposed revisions would place any unreasonable burden on Tribes
because the proposed rule does not require Tribes to implement
certification programs. There are currently only four Tribes with an
EPA-approved certification plan. The proposed rule would require
existing Tribal certification plans to be revised and resubmitted to
EPA for review and approval. The costs associated with the proposed
changes should be negligible because they primarily result in
clarification of requirements and policy, not the imposition of
substantial new obligations on the part of Tribes. EPA estimates the
costs to these Tribes would be similar to the costs to States for
updating and submitting to EPA for approval a revised certification
plan, and that they would not result in a significant impact on Tribal
entities or programs. Thus, Executive Order 13175 does not apply to
this action.
Consistent with EPA's Policy on Consultation and Coordination with
Indian Tribes, EPA consulted with Tribal officials during the
development of this action. A summary of that consultation is provided
in the docket for this action (Ref. 63).
EPA specifically solicits additional comment on this proposed
action from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed rule is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997) because it is not an economically significant
regulatory action as defined by Executive Order 12866. However, it is
reasonable to expect that the environmental health or safety risks
addressed in this proposed rule may have a disproportionate effect on
children.
The primary risk to children that is within the scope of this
rulemaking is exposure to RUPs during their work as applicators of
RUPs. The proposed rule is intended to minimize these exposures and
risks. By establishing a minimum age for persons to become a certified
applicator or to use RUPs as a noncertified applicator under the direct
supervision of a certified applicator, children would receive less
exposure to pesticides that may lead to chronic or acute pesticide-
related illness. In addition, the proposal expands training for
noncertified applicators to include topics that should also assist in
reducing potential risks to children from incidental pesticide
exposure, such as avoiding bringing pesticide residues home on
clothing.
Like DOL's regulations that implement the FLSA, the proposed rule
seeks to regulate the ages at which children can apply pesticides. The
proposed rule would establish a minimum age of 18 for persons to become
certified to apply RUPs and to apply RUPs as noncertified persons under
the direct supervision of certified applicators. Since many RUPs
present heightened risks to harm human health relative to other
pesticides, EPA feels that they warrant special consideration. EPA
expects that the proposals to establish minimum ages would mitigate or
eliminate many risks faced by young applicators.
[[Page 51401]]
Additional information on EPA's consideration of the risks to
children in development of this action can be found in Unit III.C.3.
and in the economic analysis for this action (Ref. 3).
The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to
pesticides.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule 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. Further, this rule is not likely to
have any adverse energy effects because it does not require any action
related to the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards that would
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272
note.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this proposed rule would not have
disproportionately high and adverse human health or environmental
effects on minority, low-income, or indigenous populations, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994),
because it increases the level of environmental protection for all
affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population.
EPA engaged with stakeholders from impacted communities extensively
in the development of this rulemaking in order to seek meaningful
involvement of all parties. The Agency's efforts to address
environmental justice through this rulemaking were reviewed repeatedly
during the development of the rule and its supporting documents. The
proposed changes demonstrate EPA's commitment to improving the health
and safety of certified applicators and noncertified applicators using
RUPs under their direct supervision by changes such as adding
application method-specific categories, strengthening competency
standards for private applicators, adding training for noncertified
applicators using RUPs under the direct supervision of a certified
applicator, and establishing a minimum age for all persons using RUPs.
List of Subjects in 40 CFR Part 171
Environmental protection, Administrative practice and procedure,
Certified applicator, Commercial applicator, Indian Country, Indian
Tribes, Noncertified applicator, Pesticides and pests, Private
applicator, Restricted use pesticides, Reporting and recordkeeping
requirements.
Dated: August 5, 2015.
Gina McCarthy,
Administrator.
For the reasons discussed in the preamble, the EPA proposes to
revise 40 CFR part 171 as follows:
PART 171--CERTIFICATION OF PESTICIDE APPLICATORS
Subpart A--General Provisions
Sec.
171.1 Scope.
171.3 Definitions.
171.5 Effective date.
Subpart B--Certification Requirements for Applicators of Restricted Use
Pesticides
171.101 Commercial applicator certification categories.
171.103 Standards for certification of commercial applicators.
171.105 Standards for certification of private applicators.
171.107 Standards for recertification of certified applicators.
Subpart C--Supervision of Noncertified Applicators
171.201 Requirements for direct supervision of noncertified
applicators by certified applicators.
Subpart D--Certification Plans
171.301 General.
171.303 Requirements for State certification plans.
171.305 Requirements for Federal agency certification plans.
171.307 Certification of applicators in Indian country.
171.309 Modification and withdrawal of certification plans.
171.311 EPA-administered applicator certification programs.
Authority: 7 U.S.C. 136i and 136w.
Subpart A--General Provisions
Sec. 171.1 Scope.
(a) This part establishes Federal standards for the certification
and recertification of applicators of restricted use pesticides. The
standards address the requirements for certification and
recertification of applicators using restricted use pesticides,
requirements for certified applicators supervising the use of
restricted use pesticides by noncertified applicators, requirements for
noncertified persons using restricted use pesticides under the direct
supervision of a certified applicator, and requirements for pesticide
applicator certification plans administered by States, Tribes and
Federal agencies.
(b) A person is a certified applicator for purposes of the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136 et
seq., only if the person holds a certification issued pursuant to a
plan approved in accordance with this part and currently valid in the
pertinent jurisdiction. As provided in FIFRA section 12(a)(2)(F), it is
unlawful for any person to make available for use or to use any
pesticide classified for restricted use other than in accordance with
the requirements of this part.
Sec. 171.3 Definitions.
Terms used in this part have the same meanings they have in FIFRA
and 40 CFR part 152. In addition, the following terms, when used in
this part, shall mean:
Agricultural commodity means any plant, or part thereof, or animal,
or animal product, produced by a person (including, but not limited to,
farmers, ranchers, vineyardists, plant propagators, Christmas tree
growers, aquaculturists, floriculturists, orchardists, foresters, or
other comparable persons) primarily for sale, consumption, propagation,
or other use by man or animals.
Application means the dispersal of a pesticide on, in, at, or
around a target site.
Application method means the application of a pesticide using a
particular type of equipment, mechanism, or device, including, but not
limited to, ground boom, air-blast sprayer, wand, and backpack sprayer,
as well as methods such as aerial, chemigation, and fumigation.
Application method-specific certification category means a defined
set of competencies related to the use of a specific application method
to apply restricted use pesticides.
Applicator means any individual using a restricted use pesticide.
An applicator may be certified as a commercial or private applicator as
defined in FIFRA or may be a noncertified applicator as defined in this
part.
Calibration means measurement of dispersal or output of application
equipment and adjustment of such equipment to establish a specific rate
of dispersal and, if applicable, droplet or
[[Page 51402]]
particle size of a pesticide dispersed by the equipment.
Certification means a certifying authority's issuance, pursuant to
this part, of authorization to a person to use or supervise the use of
restricted use pesticides.
Certifying authority means the Agency, or a State, Tribal, or
Federal agency that issues restricted use pesticide applicator
certifications pursuant to a certification plan approved by the Agency
under this part.
Compatibility means the extent to which a pesticide can be combined
with other chemicals without causing undesirable results.
Competent means having the practical knowledge, skills, experience,
and judgment necessary to perform functions associated with restricted
use pesticide application without causing unreasonable adverse effects,
where the nature and degree of competency required relate directly to
the nature of the activity and the degree of independent
responsibility.
Dealership means any establishment owned or operated by a
restricted use pesticide retail dealer where restricted use pesticides
are distributed or sold.
Fumigant means any pesticide product that is a vapor or gas, or
forms a vapor or gas upon application, and whose pesticidal action is
achieved through the gaseous or vapor state.
Fumigation means the application of a fumigant.
Host means any plant or animal on or in which another species of
plant or animal lives for nourishment, development, or protection.
Indian country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation.
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State.
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
Indian Tribe or Tribe means any Indian or Alaska Native Tribe,
band, nation, pueblo, village, or community included in the list of
Tribes published by the Secretary of the Interior pursuant to the
Federally Recognized Indian Tribe List Act.
Mishap means an event that may adversely affect man or the
environment and that is related to the use or presence of a pesticide,
whether the event was unexpected or intentional.
Non-target organism means any plant, animal or other organism other
than the target pests which a pesticide is intended to affect.
Noncertified applicator means any person who is not certified in
accordance with this part to use or supervise the use of restricted use
pesticides in the pertinent jurisdiction, but who is using restricted
use pesticides under the direct supervision of a person certified as a
commercial or private applicator in accordance with this part.
Ornamental means trees, shrubs, flowers, and other plantings
intended primarily for aesthetic purposes in and around habitations,
buildings and surrounding grounds, including, but not limited to,
residences, parks, streets, and commercial, industrial, and
institutional buildings.
Personal protective equipment means devices and apparel that are
worn to protect the body from contact with pesticides or pesticide
residues, including, but not limited to, coveralls, chemical-resistant
suits, chemical-resistant gloves, chemical-resistant footwear,
respirators, chemical-resistant aprons, chemical-resistant headgear,
and protective eyewear.
Practical knowledge means the possession of pertinent facts and
comprehension sufficient to properly perform functions associated with
application of restricted use pesticides, including properly responding
to reasonably foreseeable problems and situations.
Principal place of business means the principal location, either
residence or office, where a person conducts a business of applying
restricted use pesticides. A person who applies restricted use
pesticides in more than one State or area of Indian country may
designate a location within a State or area of Indian country as its
principal place of business for that State or area of Indian country.
Regulated pest means a particular species of pest specifically
subject to Tribal, State or Federal regulatory restrictions,
regulations, or control procedures intended to protect the hosts, man
and/or the environment.
Restricted use pesticide means a pesticide that is classified for
restricted use under the provisions of FIFRA section 3(d).
Restricted use pesticide retail dealer means any person who
distributes or sells restricted use pesticides to any person, excluding
transactions solely between persons who are pesticide producers,
registrants, wholesalers, or retail sellers, acting only in those
capacities.
Toxicity means the property of a pesticide that refers to the
degree to which the pesticide and its related derivative compounds are
able to cause an adverse physiological effect on an organism as a
result of exposure.
Use, as in ``to use a pesticide'' means any of the following:
(1) Pre-application activities, including, but not limited to:
(i) Arranging for the application of the pesticide.
(ii) Mixing and loading the pesticide.
(iii) Making necessary preparations for the application of the
pesticide, including, but not limited to, responsibilities related to
providing training, a copy of a label and use-specific instructions to
noncertified applicators, and complying with any applicable
requirements under 40 CFR part 170.
(2) Applying the pesticide, including, but not limited to,
supervising the use of a pesticide by a noncertified applicator.
(3) Post-application activities, including, but not limited to,
transporting or storing pesticide containers that have been opened,
cleaning equipment, and disposing of excess pesticides, spray mix,
equipment wash waters, pesticide containers, and other materials
contaminated with or containing pesticides.
Use-specific instructions means the information and requirements
specific to a particular pesticide product or work site that are
necessary in order for an applicator to use the pesticide in accordance
with applicable requirements and without causing unreasonable adverse
effects.
Sec. 171.5 Effective date.
This part is effective [60 days after the date of publication of
the final rule in the Federal Register]. Certification plans approved
by EPA before the effective date remain approved except as provided in
Sec. Sec. 171.301(b) and 171.309.
Subpart B--Certification Requirements for Applicators of Restricted
Use Pesticides
Sec. 171.101 Commercial applicator certification categories.
(a) Pest control certification categories. Certification in any of
the pest control certification categories listed in this paragraph (a)
alone is not sufficient to lawfully use or supervise the use of
products intended to be applied using a method specified in paragraph
(b) of this section.
[[Page 51403]]
(1) Agricultural pest control--(i) Crop pest control. This category
applies to commercial applicators who use or supervise the use of
restricted use pesticides in production of agricultural crops,
including but not limited to grains, vegetables, small fruits, tree
fruits, peanuts, tree nuts, tobacco, cotton, feed and forage crops
including, but not limited to, grasslands, and non-crop agricultural
lands.
(ii) Livestock pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
on animals or to places on or in which animals are confined.
Certification in this category alone is not sufficient to authorize the
purchase, use, or supervision of use of products for predator control
listed in paragraph (a)(10) of this section.
(2) Forest pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
in forests, forest nurseries and forest seed production.
(3) Ornamental and turf pest control. This category applies to
commercial applicators who use or supervise the use of restricted use
pesticides to control pests in the maintenance and production of
ornamental plants and turf.
(4) Seed treatment. This category applies to commercial applicators
using or supervising the use of restricted use pesticides on seeds in
seed treatment facilities.
(5) Aquatic pest control. This category applies to commercial
applicators who use or supervise the use of any restricted use
pesticide purposefully applied to standing or running water, excluding
applicators engaged in public health related activities included in as
specified in paragraph (b)(8) of this section.
(6) Right-of-way pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
in the maintenance of roadsides, power-line, pipeline, and railway
rights-of-way, and similar areas.
(7) Industrial, institutional, and structural pest control. This
category applies to commercial applicators who use or supervise the use
of restricted use pesticides in, on, or around the following: Food
handling establishments, packing houses, and food-processing
facilities; human dwellings; institutions, such as schools, hospitals
and prisons; and industrial establishments, including, but not limited
to, manufacturing facilities, warehouses, grain elevators, and any
other structures and adjacent areas, public or private, for the
protection of stored, processed, or manufactured products.
(8) Public health pest control. This category applies to State,
Tribal, Federal or other governmental employees who use or supervise
the use of restricted use pesticides in public health programs for the
management and control of pests having medical and public health
importance. This category includes contractors as well as individuals
directly employed by a State, Tribal, Federal, or other government
agency for government-sponsored public health programs.
(9) Regulatory pest control. This category applies to State,
Tribal, Federal, or other governmental employees who use or supervise
the use of restricted use pesticides in the control of regulated pests
but does not include individuals that use or supervise the use of
sodium cyanide in mechanical ejection devices or sodium fluoroacetate
in a protective collar for predator pest control. This regulatory pest
control category includes contractors and other individuals directly
employed by a State, Tribal, Federal, or other government agency for
government-sponsored regulatory pest control programs. Certification in
this category does not authorize the purchase, use, or supervision of
use of products for predator control listed in paragraph (a)(10) of
this section.
(10) Predator pest control--(i) Sodium cyanide predator control.
This pest control category applies to commercial applicators who use or
supervise the use of sodium cyanide in a mechanical ejection device to
control regulated predators.
(ii) Sodium fluoroacetate. This pest control category applies to
commercial applicators who use or supervise the use of sodium
fluoroacetate in a protective collar to control regulated predators.
(11) Demonstration and research. This category applies to
individuals who demonstrate to the public the proper use and techniques
of application of restricted use pesticides or supervise such
demonstration and to persons conducting field research with pesticides,
and in doing so, use or supervise the use of restricted use pesticides.
This includes such individuals as extension specialists and county
agents, commercial representatives demonstrating restricted use
pesticide products, individuals demonstrating application or pest
control methods used in public or private programs, and State, Tribal,
Federal, commercial, and other persons conducting field research on or
involving restricted use pesticides. Certification in this category
requires concurrent certification in each pest control category
identified in paragraphs (a)(1) through (10) of this section for which
a person does demonstration or research involving the use or
supervision of the use of restricted use pesticides for the type of
pest control described in those categories, and in each application
method-specific category identified in paragraph (b) of this section
for which a person does demonstration or research involving the use or
supervision of the use of restricted use pesticides using an
application method described in those categories.
(b) Application method-specific certification categories--(1) Soil
fumigation applications. This category applies to commercial
applicators who use or supervise the use of a restricted use pesticide
to fumigate soil. Certification in this application method-specific
category requires concurrent certification in each pest control
category identified in paragraphs (a)(1) through (10) of this section
for which a person intends to perform soil fumigation.
(2) Non-soil fumigation applications. This category applies to
commercial applicators who use or supervise the use of a restricted use
pesticide to fumigate anything other than soil. Certification in this
application method-specific category requires concurrent certification
in each pest control category identified in paragraphs (a)(1) through
(10) of this section for which a person intends to perform non-soil
fumigation.
(3) Aerial applications. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
applied by fixed or rotary wing aircraft. Certification in this
application method-specific category requires concurrent certification
in each pest control category identified in paragraphs (a)(1) through
(10) of this section for which a person intends to perform aerial
application.
Sec. 171.103 Standards for certification of commercial applicators.
(a) Determination of competency. To be determined competent in the
use and handling of restricted use pesticides by a State, Tribe, or
Federal agency, a commercial applicator must meet the minimum age
requirement specified in paragraph (a)(1) of this section and receive a
passing score on a written examination that meets the standards
specified in paragraph (a)(2) of this section and any related
performance testing that is required by the State, Tribe, or Federal
agency. Examinations and any alternate methods employed by
[[Page 51404]]
the certifying authority to determine applicator competency must
include the core standards applicable to all categories (paragraph (c)
of this section), the standards applicable to each pest control
category in which an applicator seeks certification (paragraph (d) of
this section), and the standards for each application method-specific
category in which an applicator seeks certification (paragraph (e) of
this section), as provided in this section. Certification processes
must meet all of the following criteria:
(1) Commercial applicator minimum age. A commercial applicator must
be at least 18 years old.
(2) Examination standards. Examinations must conform to all of the
following standards:
(i) The examination must be presented and answered in writing.
(ii) The examination must be proctored by an individual designated
by the certifying authority and who is not seeking certification at any
examination session that he or she is proctoring. The proctor must do
all of the following:
(A) Verify the identity and age of persons taking the examination
by checking identification and having examinees sign an examination
roster.
(B) Monitor examinees throughout the examination period.
(C) Instruct examinees in examination procedures before beginning
the examination.
(D) Keep examinations secure before, during, and after the
examination period.
(E) Allow only the examinees to access the examination, and allow
such access only in the presence of the proctor.
(F) Ensure that examinees have no verbal or non-verbal
communication with anyone other than the proctor during the examination
period.
(G) Ensure that no portion of the examination or any associated
reference materials described in paragraph (a)(2)(ii)(H) of this
section is copied or retained by any person other than a person
authorized by the certifying authority to copy or retain the
examination.
(H) Ensure that examinees do not have access to reference materials
other than those that are approved by the certifying authority and
provided and collected by the proctor.
(I) Review reference materials provided to examinees after the exam
is complete to ensure that no portion of the reference material has
been removed or destroyed.
(J) Report to the certifying authority any examination
administration inconsistencies or irregularities, including but not
limited to cheating, use of unauthorized materials, and attempts to
copy or retain the examination.
(K) Comply with any other requirements of the certifying authority
related to examination administration.
(iii) The examination must be closed-book. No reference materials
may be used during the examination, except those that are approved by
the certifying authority and provided by the proctor.
(iv) Each person seeking certification must present at the time of
examination valid, government-issued photo identification to the
certifying authority as proof of identity and age to be eligible for
certification.
(v) The certifying authority must notify each examinee of the
results of his or her examination.
(b) Additional methods of determining competency. In addition to
written examination requirements for determining competency, a
certifying authority may employ additional methods for determining
applicator competency, such as performance testing. Such additional
methods must be part of the certifying authority's Agency-approved
certification plan and must comply with the applicable standards in
paragraph (a) of this section.
(c) Core standards for all categories of certified commercial
applicators. Persons seeking certification as commercial applicators
must demonstrate practical knowledge of the principles and practices of
pest control and proper and effective use of restricted use pesticides
by passing a written examination. Written examinations for all
commercial applicators must address all of the following areas of
competency:
(1) Label and labeling comprehension. Familiarity with pesticide
labels and labeling and their functions, including all of the
following:
(i) The general format and terminology of pesticide labels and
labeling.
(ii) Understanding instructions, warnings, terms, symbols, and
other information commonly appearing on pesticide labels and labeling.
(iii) Understanding that it is a violation of Federal law to use
any registered pesticide in a manner inconsistent with its labeling.
(iv) Understanding when a certified applicator must be physically
present at the site of the application based on labeling requirements.
(v) Understanding labeling requirements for supervising
noncertified applicators working under the direct supervision of a
certified applicator.
(vi) Understanding that applicators must comply with all use
restrictions and directions for use contained in pesticide labels and
labeling, including being certified in the certification category and
application method-specific category appropriate to the type and site
of the application.
(vii) Understanding the meaning of product classification as either
general or restricted use and that a product may be unclassified.
(viii) Understanding and complying with product-specific
notification requirements.
(2) Safety. Measures to avoid or minimize adverse health effects,
including all of the following:
(i) Understanding the terms ``acute toxicity'' and ``chronic
toxicity,'' as well as the long-term effects of pesticides.
(ii) Understanding that a pesticide's risk is a function of
exposure and the pesticide's toxicity.
(iii) Recognition of likely ways in which dermal, inhalation and
oral exposure may occur.
(iv) Common types and causes of pesticide mishaps.
(v) Precautions to prevent injury to applicators and other
individuals in or near treated areas.
(vi) Need for, and proper use of, protective clothing and personal
protective equipment.
(vii) Symptoms of pesticide poisoning.
(viii) First aid and other procedures to be followed in case of a
pesticide mishap.
(ix) Proper identification, storage, transport, handling, mixing
procedures, and disposal methods for pesticides and used pesticide
containers, including precautions to be taken to prevent children from
having access to pesticides and pesticide containers.
(3) Environment. The potential environmental consequences of the
use and misuse of pesticides, including the influence of all of the
following:
(i) Weather and other indoor and outdoor climatic conditions.
(ii) Types of terrain, soil, or other substrate.
(iii) Presence of fish, wildlife, and other non-target organisms.
(iv) Presence of pollinators.
(v) Drainage patterns.
(4) Pests. The proper identification and effective control of
pests, including all of the following:
(i) Common features of pest organisms and characteristics of damage
needed for pest recognition.
(ii) Recognition of relevant pests.
[[Page 51405]]
(iii) Pest development, biology, and behavior as it may be relevant
to problem identification and control.
(5) Pesticides. Characteristics of pesticides, including all of the
following:
(i) Types of pesticides.
(ii) Types of formulations.
(iii) Compatibility, synergism, persistence, and animal and plant
toxicity of the formulations.
(iv) Hazards and residues associated with use.
(v) Factors that influence effectiveness or lead to problems such
as pesticide resistance.
(vi) Dilution procedures.
(6) Equipment. Application equipment, including all of the
following:
(i) Types of equipment and advantages and limitations of each type.
(ii) Use, maintenance, and calibration procedures.
(7) Application methods. Selecting appropriate application methods,
including all of the following:
(i) Methods used to apply various formulations of pesticides,
solutions, and gases.
(ii) Knowledge of which application method to use in a given
situation and when certification in an application method-specific
category is required in accordance with paragraph (c) of this section.
(iii) Relationship of application and placement of pesticides to
proper use, unnecessary or ineffective use, and misuse.
(iv) Prevention of drift and pesticide loss into the environment.
(8) Laws and regulations. Knowledge of all applicable State,
Tribal, and Federal laws and regulations.
(9) Responsibilities of supervisors of noncertified applicators.
Knowledge of the responsibilities of certified applicators supervising
noncertified applicators, including all of the following:
(i) Understanding and complying with requirements in Sec. 171.201
for certified commercial applicators who supervise noncertified
applicators using restricted use pesticides.
(ii) Requirements to keep records of pesticide safety training for
noncertified applicators using restricted use pesticides under the
direct supervision of a certified applicator.
(iii) Providing use-specific instructions to noncertified
applicators using restricted use pesticides under the direct
supervision of a certified applicator.
(iv) Explaining appropriate State, Tribal, and Federal laws and
regulations to noncertified applicators working under the direct
supervision of a certified applicator.
(10) Professionalism. Understanding the importance of all of the
following:
(i) Maintaining chemical security for restricted use pesticides.
(ii) How to communicate information about pesticide exposures and
risks with the public and their clientele.
(iii) Appropriate product stewardship for certified applicators.
(d) Specific standards of competency for each pest control category
of commercial applicators. Commercial applicators must demonstrate
practical knowledge of the principles and practices of pest control and
proper and effective use of restricted use pesticides for each pest
control category for which they intend to apply restricted use
pesticides through written examinations. The minimum competency
standards for each category of pest control are listed in paragraphs
(d)(1) through (10) of this section. Examinations for each pest control
category certification listed in Sec. 171.101(a) must be based on the
standards of competency specified in paragraphs (d)(1) through (11) of
this section and examples of problems and situations appropriate to the
particular category in which the applicator is seeking certification.
(1) Agricultural pest control--(i) Plant. Applicators must
demonstrate practical knowledge of crops, grasslands, and non-crop
agricultural lands and the specific pests of those areas on which they
may be using restricted use pesticides. The importance of such
competency is amplified by the extensive areas involved, the quantities
of pesticides needed, and the ultimate use of many commodities as food
and feed. The required knowledge includes pre-harvest intervals,
restricted entry intervals, phytotoxicity, potential for environmental
contamination such as soil and water problems, non-target injury, and
other problems resulting from the use of restricted use pesticides in
agricultural areas. The required knowledge also includes the potential
for phytotoxicity due to a wide variety of plants to be protected, for
drift, for persistence beyond the intended period of pest control, and
for non-target exposures.
(ii) Animal. Applicators applying pesticides directly to animals
must demonstrate practical knowledge of such animals and their
associated pests. The required knowledge includes specific pesticide
toxicity and residue potential, and the hazards associated with such
factors as formulation, application techniques, age of animals, stress,
and extent of treatment.
(2) Forest pest control. Applicators must demonstrate practical
knowledge of types of forests, forest nurseries, and seed production
within the jurisdiction of the certifying authority and the pests
involved. The required knowledge includes the cyclic occurrence of
certain pests and specific population dynamics as a basis for
programming pesticide applications, the relevant organisms causing harm
and their vulnerability to the pesticides to be applied, how to
determine when pesticide use is proper, selection of application method
and proper use of application equipment to minimize non-target
exposures, and appropriate responses to meteorological factors and
adjacent land use. The required knowledge also includes the potential
for phytotoxicity due to a wide variety of plants to be protected, for
drift, for persistence beyond the intended period of pest control, and
for non-target exposures.
(3) Ornamental and turf pest control. Applicators must demonstrate
practical knowledge of pesticide problems associated with the
production and maintenance of ornamental plants and turf. The required
knowledge includes the potential for phytotoxicity due to a wide
variety of plants to be protected, for drift, for persistence beyond
the intended period of pest control, and for non-target exposures.
Because of the frequent proximity of human habitations to application
activities, applicators in this category must demonstrate practical
knowledge of application methods which will minimize or prevent hazards
to humans, pets, and other domestic animals.
(4) Seed-treatment. Applicators must demonstrate practical
knowledge including recognizing types of seeds to be treated, the
effects of carriers and surface active agents on pesticide binding and
germination, the hazards associated with handling, sorting and mixing,
and misuse of treated seed, the importance of proper application
techniques to avoid harm to non-target organisms such as pollinators,
and the proper disposal of unused treated seeds.
(5) Aquatic pest control. Applicators must demonstrate practical
knowledge of the characteristics of various water use situations, the
potential for adverse effects on non-target plants, fish, birds,
beneficial insects and other organisms in the immediate aquatic
environment and downstream, and the principles of limited area
application.
(6) Right-of-way pest control. Applicators must demonstrate
practical knowledge of the types of environments (terrestrial and
aquatic) traversed by
[[Page 51406]]
rights-of-way, techniques to minimize non-target exposure runoff,
drift, and excessive foliage destruction, and recognition of target
pests. The required knowledge also includes the potential for
phytotoxicity due to a wide variety of plants and pests to be
controlled, for drift, for persistence beyond the intended period of
pest control, and for non-target exposures.
(7) Industrial, institutional, and structural pest control.
Applicators must demonstrate a practical knowledge of industrial,
institutional and structural pests, including recognizing those pests
and signs of their presence, their habitats, their life cycles,
biology, and behavior as it may be relevant to problem identification
and control. Applicators must demonstrate practical knowledge of types
of formulations appropriate for control of industrial, institutional
and structural pests, and methods of application that avoid
contamination of food, minimize damage to and contamination of areas
treated, minimize acute and chronic exposure of people and pets, and
minimize environmental impacts of outdoor applications.
(8) Public health pest control. Applicators must demonstrate
practical knowledge of pests that are important vectors of disease,
including recognizing the pests and signs of their presence, their
habitats, their life cycles, biology and behavior as it may be relevant
to problem identification and control. The required knowledge also
includes how to minimize damage to and contamination of areas treated,
acute and chronic exposure of people and pets, and non-target
exposures.
(9) Regulatory pest control. Applicators must demonstrate practical
knowledge of regulated pests, applicable laws relating to quarantine
and other regulation of pests, and the potential impact on the
environment of restricted use pesticides used in suppression and
eradication programs. They must demonstrate knowledge of factors
influencing introduction, spread, and population dynamics of regulated
pests.
(10) Predator pest control. Applicators must demonstrate practical
knowledge of mammalian predator pests, including recognizing those
pests and signs of their presence, their habitats, their life cycles,
biology, and behavior as it may be relevant to problem identification
and control.
(i) Sodium cyanide. Applicators must demonstrate comprehension of
all relevant laws and regulations applicable to the use of mechanical
ejection devices for sodium cyanide, including the restrictions on the
use of sodium cyanide products ordered by the EPA Administrator and
published in the Federal Register (40 FR 44726, September 29, 1975)
(FRL 436-3). Applicators must also demonstrate practical knowledge and
understanding of all of the specific use restrictions for sodium
cyanide devices, including safe handling and proper placement of the
capsules and device, proper use of the antidote kit, notification to
medical personnel before use of the device, conditions of and
restrictions on when and where devices can be used, requirements to
consult U.S. Fish and Wildlife Service maps before use to avoid
affecting endangered species, maximum density of devices, provisions
for supervising and monitoring applicators, required information
exchange in locations where more than one agency is authorized to place
devices, and specific requirements for recordkeeping, monitoring, field
posting, proper storage, and disposal of damaged or used sodium cyanide
capsules.
(ii) Sodium fluoroacetate. Applicators must demonstrate
comprehension of all relevant laws and regulations applicable to the
use of sodium fluoroacetate products, including the restrictions on the
use of sodium fluoroacetate products ordered by the EPA Administrator
and published in the Federal Register (49 FR 4830, February 8, 1984)
(FRL 2520-6). Applicators must also demonstrate practical knowledge and
understanding of the specific use restrictions for sodium fluoroacetate
in the livestock protection collar, including where and when sodium
fluoroacetate products can be used, safe handling and placement of
collars, and practical treatment of sodium fluoroacetate poisoning in
humans and domestic animals. Applicators must also demonstrate
practical knowledge and understanding of specific requirements for
field posting, monitoring, recordkeeping, proper storage of collars,
disposal of punctured or leaking collars, disposal of contaminated
animal remains, vegetation, soil, and clothing, and reporting of
suspected and actual poisoning, mishap, or injury to threatened or
endangered species, human, domestic animals, or non-target wild
animals.
(11) Demonstration pest control. Applicators demonstrating the safe
and effective use of restricted use pesticides to other applicators and
the public must demonstrate practical knowledge of the potential
problems, pests, and population levels reasonably expected to occur in
a demonstration situation and the effects of restricted use pesticides
on target and non-target organisms. In addition, they must demonstrate
competency in each pest control category applicable to their
demonstrations.
(e) Specific standards of competency for each application method-
specific certification category of commercial applicators. In order to
apply a restricted use pesticide using any of the application methods
identified in this paragraph, a commercial applicator must first obtain
the appropriate application method-specific certification as provided
in this paragraph. This requirement is in addition to the requirements
of paragraphs (c), (d), and (e) of this section. The competency
standards for each application method-specific certification category
are specified in paragraphs (e)(1) through (3) of this section.
(1) Soil fumigation application. Commercial applicators performing
soil fumigation applications of restricted use pesticides must
demonstrate practical knowledge of the pest problems and pest control
practices associated with performing soil fumigation applications,
including all the following:
(i) Label and labeling comprehension. Familiarity with the
pesticide labels and labeling for products used to perform soil
fumigation, including all of the following:
(A) Labeling requirements specific to soil fumigants.
(B) Fumigant applicators, fumigant applicator tasks, and the safety
information that certified applicators must provide to noncertified
applicators using fumigants under their direct supervision.
(C) Entry-restricted periods for different tarped and untarped
field application scenarios.
(D) Recordkeeping requirements.
(E) Special label provisions of fumigant products containing
certain active ingredients.
(ii) Safety. Measures to minimize adverse health effects, including
all of the following:
(A) Understanding how certified applicators, noncertified
applicators using fumigants under direct supervision of certified
applicators, field workers, and bystanders can become exposed to
fumigants.
(B) Common problems and mistakes that can result in direct exposure
to fumigants.
(C) Signs and symptoms of human exposure to fumigants.
(D) Air concentrations of a fumigant require that applicators wear
respirators or exit the work area entirely.
(E) Steps to take if a fumigant applicator experiences sensory
irritation.
[[Page 51407]]
(F) Understanding air monitoring, when it is required, and where to
take samples.
(G) Buffer zones, including procedures for buffer zone monitoring.
(H) First aid measures to take in the event of exposure to a soil
fumigant.
(I) Labeling requirements for transportation, storage, spill clean-
up, and emergency response for soil fumigants, including safe disposal
of containers and contaminated soil, and management of empty
containers.
(iii) Soil fumigant chemical characteristics. Characteristics of
soil fumigants, including all of the following:
(A) Chemical characteristics of soil fumigants.
(B) Specific human exposure concerns for soil fumigants.
(C) How soil fumigants change from a liquid or solid to a gas.
(D) How soil fumigants disperse in the application zone.
(E) Incompatibility concerns for tanks, hoses, tubing, and other
equipment.
(iv) Application. Selecting appropriate application methods and
timing, including all of the following:
(A) Application methods and equipment commonly used for each soil
fumigant.
(B) Water-run and non-water-run application methods.
(C) Site characteristics that can be used to prevent fumigant
exposure.
(D) Understanding temperature inversions and their impact on soil
fumigation application.
(E) Weather conditions that could impact timing of soil fumigation
application, such as air stability, air temperature, humidity, and wind
currents, and labeling statements limiting applications during specific
weather conditions.
(F) Conducting pre-application inspection of application equipment.
(G) Understanding the purpose and methods of soil sealing,
including the factors that determine which soil sealing method to use.
(H) Understanding the use of tarps, including the range of tarps
available, how to seal tarps, and labeling requirements for tarp
removal and perforation.
(I) Calculating the amount of product required for a specific
treatment area.
(J) Understanding the basic techniques for calibrating soil
fumigation application equipment.
(v) Soil and pest factors. Soil and pest factors that influence
fumigant activity, including all of the following:
(A) Influence of soil factors on fumigant volatility and movement
within the soil profile.
(B) Factors that influence gaseous movement through the soil
profile and into the air.
(C) Soil characteristics, including how soil characteristics affect
the success of a soil fumigation application, assessing soil moisture,
and correcting for soil characteristics that could hinder a successful
soil fumigation application.
(D) Identifying pests causing the damage to be treated by the soil
fumigation.
(E) Understanding the relationship between pest density and
application rate.
(F) The importance of proper application depth and timing.
(vi) Personal protective equipment. Understanding what personal
protective equipment is necessary and how to use it properly, including
all of the following:
(A) Following labeling directions for required personal protective
equipment.
(B) Selecting, inspecting, using, caring for, replacing, and
disposing of personal protective equipment.
(C) Understanding the types of respirators required when using
specific soil fumigants and how to use them properly, including medical
evaluation, fit testing, and required replacement of cartridges and
cannisters.
(D) Labeling requirements and other laws applicable to medical
evaluation for respirator use, fit tests, training, and recordkeeping.
(vii) Fumigant management plans and post-application summaries.
Information about fumigant management plans, including all of the
following:
(A) When a fumigant management plan must be in effect, how long it
must be kept on file, where it must be kept during the application, and
who must have access to it.
(B) The elements of a fumigation management plan and resources
available to assist the applicator in preparing a fumigation management
plan.
(C) The party responsible for verifying that a fumigant management
plan is accurate.
(D) The elements, purpose and content of a post-application
summary, who must prepare it, and when it must be completed.
(viii) Buffer zones and posting requirements. Understanding buffer
zones and posting requirements, including all of the following:
(A) Buffer zones and the buffer zone period.
(B) Identifying who is allowed in a buffer zone during the buffer
zone period and who is prohibited from being in a buffer zone during
the buffer zone period.
(C) Using the buffer zone table from the labeling to determine the
size of the buffer zone.
(D) Factors that determine the buffer zone credits for application
scenarios and calculating buffer zones using credits.
(E) Distinguishing buffer zone posting and treated area posting,
including the pre-application and post-application posting timeframes
for each.
(F) Proper choice and placement of warning signs.
(2) Non-soil fumigation applications. Commercial applicators
performing fumigation applications of restricted use pesticides to
sites other than soil must demonstrate practical knowledge of the pest
problems and pest control practices associated with performing
fumigation applications to sites other than soil, including all the
following:
(i) Label & labeling comprehension. Familiarity with the pesticide
labels and labeling for products used to perform non-soil fumigation,
including all of the following:
(A) Labeling requirements specific to non-soil fumigants.
(ii) Safety. Measures to minimize adverse health effects, including
all of the following:
(A) Understanding how certified applicators, noncertified
applicators using fumigants under direct supervision of certified
applicators, and bystanders can become exposed to fumigants.
(B) Common problems and mistakes that can result in direct exposure
to fumigants.
(C) Signs and symptoms of human exposure to fumigants.
(D) Air concentrations of a fumigant that require applicators to
wear respirators or to exit the work area entirely.
(E) Steps to take if a fumigant applicator experiences sensory
irritation.
(F) Understanding air monitoring, when it is required, and where to
take samples.
(G) First aid measures to take in the event of exposure to a
fumigant.
(H) Labeling requirements for transportation, storage, spill clean-
up, and emergency response for non-soil fumigants, including safe
disposal of containers and contaminated materials, and management of
empty containers.
(iii) Non-soil fumigant chemical characteristics. Characteristics
of non-soil fumigants, including all of the following:
(A) Chemical characteristics of non-soil fumigants.
(B) Specific human exposure concerns for non-soil fumigants.
[[Page 51408]]
(C) How fumigants change from a liquid or solid to a gas.
(D) How fumigants disperse in the application zone.
(E) Incompatibility concerns for tanks, hoses, tubing, and other
equipment.
(iv) Application. Selecting appropriate application methods and
timing, including all of the following:
(A) Application methods and equipment commonly used for non-soil
fumigation.
(B) Site characteristics that can be used to prevent fumigant
exposure.
(C) Conditions that could impact timing of non-soil fumigation
application, such as air stability, air temperature, humidity, and wind
currents, and labeling statements limiting applications when specific
conditions are present.
(D) Conducting pre-application inspection of application equipment
and the site to be fumigated.
(E) Understanding the purpose and methods of sealing the area to be
fumigated, including the factors that determine which sealing method to
use.
(F) Calculating the amount of product required for a specific
treatment area.
(G) Understanding the basic techniques for calibrating non-soil
fumigation application equipment.
(H) Understanding when and how to conduct air monitoring and when
it is required.
(v) Pest factors. Pest factors that influence fumigant activity,
including all of the following:
(A) Influence of pest factors on fumigant volatility.
(B) Factors that influence gaseous movement through the area being
fumigated and into the air.
(C) Identifying pests causing the damage to be treated by the
fumigation.
(D) Understanding the relationship between pest density and
application rate.
(E) The importance of proper application rate and timing.
(vi) Personal protective equipment. Understanding what personal
protective equipment is necessary and how to use it properly, including
all of the following:
(A) Following labeling directions for required personal protective
equipment.
(B) Selecting, inspecting, using, caring for, replacing, and
disposing of personal protective equipment.
(C) Understanding the types of respirators required when using
specific non-soil fumigants and how to use them properly, including
medical evaluation, fit testing, and required replacement of cartridges
and canisters.
(D) Labeling requirements and other laws applicable to medical
evaluation for respirator use, fit tests, training, and recordkeeping.
(vii) Fumigant management plans and post-application summaries.
Information about fumigant management plans and when they are required,
including all of the following:
(A) When a fumigant management plan must be in effect, how long it
must be kept on file, where it must be kept during the application, and
who must have access to it.
(B) The elements of a fumigation management plan and resources
available to assist the applicator in preparing a fumigation management
plan.
(C) The party responsible for verifying that a fumigant management
plan is accurate.
(D) The elements, purpose and content of a post-application
summary, who must prepare it, and when it must be completed.
(viii) Posting requirements. Understanding posting requirements,
including all of the following:
(A) Identifying who is allowed in an area being fumigated or after
fumigation and who is prohibited from being in such areas.
(B) Distinguishing fumigant labeling-required posting and treated
area posting, including the pre-application and post-application
posting timeframes for each.
(C) Proper choice and placement of warning signs.
(3) Aerial applications. Commercial applicators performing aerial
application of restricted use pesticides must demonstrate practical
knowledge of the pest problems and pest control practices associated
with performing aerial application, including all the following:
(i) Labeling. Labeling requirements and restrictions specific to
aerial application of pesticides including:
(A) Spray volumes.
(B) Buffers and no-spray zones.
(C) Weather conditions specific to wind and inversions.
(ii) Application equipment. Understand how to choose and maintain
aerial application equipment, including all of the following:
(A) The importance of inspecting application equipment to ensure it
is proper operating condition prior to beginning an application.
(B) Selecting proper nozzles to ensure appropriate pesticide
dispersal and to minimize drift.
(C) Knowledge of the components of an aerial application pesticide
application system, including pesticide hoppers, tanks, pumps, and
types of nozzles.
(D) Interpreting a nozzle flow rate chart.
(E) Determining the number of nozzles for intended pesticide output
using nozzle flow rate chart, aircraft speed, and swath width.
(F) How to ensure nozzles are placed to compensate for uneven
dispersal due to uneven airflow from wingtip vortices, helicopter rotor
turbulence, and aircraft propeller turbulence.
(G) Where to place nozzles to produce the appropriate droplet size.
(H) How to maintain the application system in good repair,
including pressure gauge accuracy, filter cleaning according to
schedule, checking nozzles for excessive wear.
(I) How to calculate required and actual flow rates.
(J) How to verify flow rate using fixed timing, open timing, known
distance, or a flow meter.
(K) When to adjust and calibrate application equipment.
(iii) Application considerations. The applicator must demonstrate
knowledge of factors to consider before and during application,
including all of the following:
(A) Weather conditions that could impact application by affecting
aircraft engine power, take-off distance, and climb rate, or by
promoting spray droplet evaporation.
(B) How to determine wind velocity, direction, and air density at
the application site.
(C) The potential impact of thermals and temperature inversions on
aerial pesticide application.
(vi) Minimizing drift. The applicator must demonstrate knowledge of
methods to minimize off-target pesticide movement, including all of the
following:
(A) How to determine drift potential of a product using a smoke
generator.
(B) How to evaluate vertical and horizontal smoke plumes to assess
wind direction, speed, and concentration.
(C) Selecting techniques that minimize pesticide movement out of
the area to be treated.
(D) Documenting special equipment configurations or flight patterns
used to reduce off-target pesticide drift.
(v) Performing aerial application. The applicator must demonstrate
competency in performing an aerial pesticide application, including all
of the following:
(A) Selecting a flight altitude that minimizes streaking and off-
target pesticide drift.
(B) Choosing a flight pattern that ensures applicator and bystander
safety and proper application.
(C) The importance of engaging and disengaging spray precisely when
[[Page 51409]]
entering and exiting a predetermined swath pattern.
(D) Tools available to mark swaths, such as global positioning
systems and flags.
(E) Recordkeeping requirements for aerial pesticide applications
including application conditions if applicable.
(f) Exceptions. The requirements in Sec. 171.103(a) through (f) of
this chapter do not apply to the following persons:
(1) Persons conducting laboratory research involving restricted use
pesticides.
(2) Doctors of Medicine and Doctors of Veterinary Medicine applying
restricted use pesticides to patients during the course of the ordinary
practice of those professions.
Sec. 171.105 Standards for certification of private applicators.
(a) General private applicator certification. Before using or
supervising the use of a restricted use pesticide, a private applicator
must be certified by an appropriate certifying authority as being
competent to use restricted use pesticides for pest control in the
production of agricultural commodities, which includes the ability to
read and understand pesticide labeling. Certification in this general
private applicator certification category alone is not sufficient to
authorize the purchase, use, or supervision of use of the restricted
use pesticide products for predator pest control listed in paragraph
(b) of this section, or the use or supervision of use of the restricted
use pesticides using application methods specified in paragraph (c) of
this section. Persons seeking certification as private applicators must
demonstrate practical knowledge of the principles and practices of pest
control associated with the production of agricultural commodities and
effective use of restricted use pesticides, including all of the
following:
(1) Label and labeling comprehension. Familiarity with pesticide
labels and labeling and their functions, including all of the
following:
(i) The general format and terminology of pesticide labels and
labeling.
(ii) Understanding instructions, warnings, terms, symbols, and
other information commonly appearing on pesticide labels and labeling.
(iii) Understanding that it is a violation of Federal law to use
any registered pesticide in a manner inconsistent with its labeling.
(iv) Understanding when a certified applicator must be physically
present at the site of the application based on labeling requirements.
(v) Understanding labeling requirements for supervising
noncertified applicators working under the direct supervision of a
certified applicator.
(vi) Understanding that applicators must comply with all use
restrictions and directions for use contained in pesticide labels and
labeling, including being certified in the application method-specific
category appropriate to the type and site of the application and in the
predator pest control category for private applicators if applicable.
(vii) Understanding the meaning of product classification as either
general or restricted use, and that a product may be unclassified.
(viii) Understanding and complying with product-specific
notification requirements.
(2) Safety. Measures to avoid or minimize adverse health effects,
including all of the following:
(i) Understanding the terms ``acute toxicity'' and ``chronic
toxicity,'' as well as the long-term effects of pesticides.
(ii) Understanding that a pesticide's risk is a function of
exposure and the pesticide's toxicity.
(iii) Recognition of likely ways in which dermal, inhalation and
oral exposure may occur.
(iv) Common types and causes of pesticide mishaps.
(v) Precautions to prevent injury to applicators and other
individuals in or near treated areas.
(vi) Need for, and proper use of, protective clothing and personal
protective equipment.
(vii) Symptoms of pesticide poisoning.
(viii) First aid and other procedures to be followed in case of a
pesticide mishap.
(ix) Proper identification, storage, transport, handling, mixing
procedures, and disposal methods for pesticides and used pesticide
containers, including precautions to be taken to prevent children from
having access to pesticides and pesticide containers.
(3) Environment. The potential environmental consequences of the
use and misuse of pesticides, including the influence of the following:
(i) Weather and other climatic conditions.
(ii) Types of terrain, soil, or other substrate.
(iii) Presence of fish, wildlife, and other non-target organisms.
(iv) Presence of pollinators.
(v) Drainage patterns.
(4) Pests. The proper identification and effective control of
pests, including all of the following:
(i) Common features of pest organisms and characteristics of damage
needed for pest recognition.
(ii) Recognition of relevant pests.
(iii) Pest development, biology, and behavior as it may be relevant
to problem identification and control.
(5) Pesticides. Characteristics of pesticides, including all of the
following:
(i) Types of pesticides.
(ii) Types of formulations.
(iii) Compatibility, synergism, persistence, and animal and plant
toxicity of the formulations.
(iv) Hazards and residues associated with use.
(v) Factors that influence effectiveness or lead to problems such
as pesticide resistance.
(vi) Dilution procedures.
(6) Equipment. Application equipment, including all of the
following:
(i) Types of equipment and advantages and limitations of each type.
(ii) Uses, maintenance, and calibration procedures.
(7) Application methods. Selecting appropriate application methods,
including all of the following:
(i) Methods used to apply various formulations of pesticides,
solutions, and gases.
(ii) Knowledge of which application method to use in a given
situation and when certification in an application method-specific
category is required in accordance with paragraph (c) of this section.
(iii) Relationship of application and placement of pesticides to
proper use, unnecessary or ineffective use, and misuse.
(iv) Prevention of drift and pesticide loss into the environment.
(8) Laws and regulations. Knowledge of all applicable State,
Tribal, and Federal laws and regulations, including understanding and
complying with the Worker Protection Standard in 40 CFR part 170.
(9) Responsibilities for supervisors of noncertified applicators.
Certified applicator responsibilities related to supervision of
noncertified applicators, including all of the following:
(i) Understanding and complying with requirements in Sec. 171.201
of this chapter for certified private applicators who supervise
noncertified applicators using restricted use pesticides.
(ii) Providing use-specific instructions to noncertified
applicators using restricted use pesticides under the direct
supervision of a certified applicator.
(iii) Explaining appropriate State, Tribal, and Federal laws and
regulations
[[Page 51410]]
to noncertified applicators working under the direct supervision of a
certified applicator.
(10) Stewardship. Understanding the importance of all of the
following:
(i) Maintaining chemical security for restricted-use pesticides.
(ii) How to communicate information about pesticide exposures and
risks with agricultural workers and handlers and other relevant
persons.
(11) Agricultural pest control. Practical knowledge of pest control
applications to agricultural commodities including all of the
following:
(i) Specific pests of agricultural commodities.
(ii) How to avoid contamination of ground and surface waters.
(iii) Understanding pre-harvest and restricted-entry intervals and
entry-restricted periods and areas.
(iv) Understanding specific pesticide toxicity and residue
potential when pesticides are applied to animal or animal product
agricultural commodities.
(v) Relative hazards associated with using pesticides on animals or
animal products based on formulation, application technique, age of
animal, stress, and extent of treatment.
(b) Predator pest control category for private applicators. This
category applies to private applicators that use or supervise the use
of sodium cyanide in a mechanical ejection device to control regulated
predators and private applicators that use or supervise the use of
sodium fluoroacetate in a protective collar to control regulated
predators. All private applicators that use or supervise the use of
these restricted use pesticides for predator pest control must be
specifically certified as competent by a certifying authority in
accordance with the following competency standards:
(1) Sodium cyanide. Applicators must demonstrate comprehension of
all relevant laws and regulations applicable to the use of mechanical
ejection devices for sodium cyanide, including the restrictions on the
use of sodium cyanide products ordered by the EPA Administrator and
published in the Federal Register (40 FR 44726, September 29, 1975)
(FRL 436-3). Applicators must also demonstrate practical knowledge and
understanding of all of the specific use restrictions for sodium
cyanide devices, including safe handling and proper placement of the
capsules and device, proper use of the antidote kit, notification to
medical personnel before use of the device, conditions of and
restrictions on where devices can be used, requirements to consult FWS
maps before use to avoid affecting endangered species, maximum density
of devices, provisions for supervising and monitoring applicators,
required information exchange in locations where more than one agency
is authorized to place devices, and specific requirements for
recordkeeping, monitoring, field posting, proper storage, and disposal
of damaged or used sodium cyanide capsules.
(2) Sodium fluoroacetate. Applicators must demonstrate
comprehension of all relevant laws and regulations applicable to the
use of sodium fluoroacetate products, including the restrictions on the
use of sodium fluoroacetate products ordered by the EPA Administrator
and published in the Federal Register (49 FR 4830, February 8, 1984)
(FRL 2520-6). Applicators must also demonstrate practical knowledge and
understanding of the specific use restrictions for sodium fluoroacetate
in the livestock protection collar, including where and when sodium
fluoroacetate products can be used, safe handling and placement of
collars, and practical treatment of sodium fluoroacetate poisoning in
humans and domestic animals. Applicators must also demonstrate
practical knowledge and understanding of specific requirements for
field posting, monitoring, recordkeeping, proper storage of collars,
disposal of punctured or leaking collars, disposal of contaminated
animal remains, vegetation, soil, and clothing, and reporting of
suspected and actual poisoning, mishap, or injury to threatened or
endangered species, human, domestic animals, or non-target wild
animals.
(c) Application method-specific certification categories for
private applicators. In order to apply or supervise the use of
restricted use pesticides using an application method described in this
paragraph (c), private applicators must demonstrate practical knowledge
related to the appropriate application method as provided in this
paragraph (c). This requirement is in addition to certification in the
general private applicator certification category specified in
paragraph (a) of this section.
(1) Soil fumigation application. Private applicators that use or
supervise the use of a restricted use pesticide to fumigate soil must
demonstrate practical knowledge of the pest problems and pest control
practices associated with performing soil fumigation applications,
including all the following:
(i) Label and labeling comprehension. Familiarity with the
pesticide labels and labeling for products used to perform soil
fumigation, including all of the following:
(A) Labeling requirements specific to soil fumigants.
(B) Fumigant applicators, fumigant applicator tasks, and the safety
information that certified applicators must provide to noncertified
applicators using fumigants under the direct supervision of certified
applicators.
(C) Entry-restricted period for different tarped and untarped field
application scenarios.
(D) Recordkeeping requirements imposed by product labels and
labeling.
(E) Special label provisions of products containing certain active
ingredients.
(F) Labeling requirements for fumigant management plans, such as
when a fumigant management plan must be in effect, how long it must be
kept on file, where it must be kept during the application, and who
must have access to it; the elements of a fumigation management plan
and resources available to assist the applicator in preparing a
fumigation management plan; the party responsible for verifying that a
fumigant management plan is accurate; and the elements, purpose and
content of a post-application summary, who must prepare it, and when it
must be completed.
(ii) Safety. Measures to minimize adverse health effects, including
all of the following:
(A) Understanding how certified applicators, noncertified
applicators using fumigants under the direct supervision of certified
applicators, field workers, and bystanders can become exposed to
fumigants.
(B) Common problems and mistakes that can result in direct exposure
to fumigants.
(C) Signs and symptoms of human exposure to fumigants.
(D) Air concentrations of a fumigant that require applicators to
wear respirators or to exit the work area entirely.
(E) Steps to take if a fumigant applicator experiences sensory
irritation.
(F) Understanding air monitoring, when it is required, and where to
take samples.
(G) Buffer zones, including procedures for buffer zone monitoring.
(H) First aid measures to take in the event of exposure to a soil
fumigant.
(I) Labeling requirements for transportation, storage, spill clean
up, and emergency response for soil fumigants, including safe disposal
of containers and contaminated soil, and management of empty
containers.
(iii) Soil fumigant chemical characteristics. Characteristics of
soil fumigants, including all of the following:
[[Page 51411]]
(A) Chemical characteristics of soil fumigants.
(B) Specific human exposure concerns for soil fumigants.
(C) How soil fumigants change from a liquid or solid to a gas.
(D) How soil fumigants disperse in the application zone.
(E) Incompatibility concerns for tanks, hoses, tubing, and other
equipment.
(iv) Application. Selecting appropriate application methods and
timing, including all of the following:
(A) Application methods and equipment commonly used for each soil
fumigant.
(B) Water-run and non-water-run application methods.
(C) Site characteristics that can be used to prevent fumigant
exposure.
(D) Understanding temperature inversions and their impact on soil
fumigation application.
(E) Weather conditions that could impact timing of soil fumigation
application, such as air stability, air temperature, humidity, and wind
currents, and labeling statements limiting applications during specific
weather conditions.
(F) Conducting pre-application inspection of application equipment.
(G) Understanding the purpose and methods of soil sealing,
including the factors that determine which soil sealing method to use.
(H) Understanding the use of tarps, including the range of tarps
available, how to seal tarps, and labeling requirements for tarp
removal and perforation.
(I) Calculating the amount of product required for a specific
treatment area.
(J) Understanding the basic techniques for calibrating soil
fumigation application equipment.
(v) Soil and pest factors. Soil and pest factors that influence
fumigant activity, including all of the following:
(A) Influence of soil factors on fumigant volatility and movement
within the soil profile.
(B) Factors that influence gaseous movement through the soil
profile and into the air.
(C) Soil characteristics, including how soil characteristics affect
the success of a soil fumigation application, assessing soil moisture,
and correcting for soil characteristics that could hinder a successful
soil fumigation application.
(D) Identifying pests causing the damage to be treated by the soil
fumigation.
(E) Understanding the relationship between pest density and
application rate.
(F) The importance of proper application depth and timing.
(vi) Personal protective equipment. Understanding what personal
protective equipment is necessary and how to use it properly, including
all of the following:
(A) Following labeling directions for required personal protective
equipment.
(B) Selecting, inspecting, using, caring for, replacing, and
disposing personal protective equipment.
(C) Understanding the types of respirators required when using
specific soil fumigants and how to use them properly, including medical
evaluation, fit testing, and required replacement of cartridges and
cannisters.
(D) Labeling requirements and other laws applicable to medical
evaluation for respirator use, fit tests, training, and recordkeeping.
(vii) Buffer zones and posting requirements. Understanding buffer
zones and posting requirements, including all of the following:
(A) Buffer zones and the buffer zone period.
(B) Identifying who may be in a buffer zone during the buffer zone
period and who is prohibited from being in a buffer zone during the
buffer zone period.
(C) Using the buffer zone table from the labeling to determine the
size of the buffer zone.
(D) Factors that determine the buffer zone credits for application
scenarios and calculating buffer zones using credits.
(E) Distinguishing buffer zone posting and treated area posting,
including the pre-application and post-application posting timeframes
for each.
(F) Proper choice and placement of warning signs.
(2) Non-soil fumigation applications. Private applicators that use
or supervise the use of a restricted use pesticide to fumigate anything
other than soil must demonstrate practical knowledge of the pest
problems and pest control practices associated with performing
fumigation applications to sites other than soil, including all the
following:
(i) Label and labeling comprehension. Familiarity with the
pesticide labels and labeling for products used to perform non-soil
fumigation, including all of the following:
(A) Labeling requirements specific to non-soil fumigants.
(B) Labeling requirements for fumigant management plans such as
when a fumigant management plan must be in effect, how long it must be
kept on file, where it must be kept during the application, and who
must have access to it; the elements of a fumigation management plan
and resources available to assist the applicator in preparing a
fumigation management plan; the party responsible for verifying that a
fumigant management plan is accurate; and the elements, purpose and
content of a post-application summary, who must prepare it, and when it
must be completed.
(ii) Safety. Measures to minimize adverse health effects, including
all of the following:
(A) Understanding how certified applicators, handlers, and
bystanders can become exposed to fumigants.
(B) Common problems and mistakes that can result in direct exposure
to fumigants.
(C) Signs and symptoms of human exposure to fumigants.
(D) When air concentrations of a fumigant triggers handlers to wear
respirators or to exit the work area entirely.
(E) Steps to take if a person using a fumigant experiences sensory
irritation.
(F) Understanding air monitoring, when it is required, and where to
take samples.
(G) First aid measures to take in the event of exposure to a
fumigant.
(H) Labeling requirements for transportation, storage, spill clean-
up, and emergency response for non-soil fumigants, including safe
disposal of containers and contaminated materials, and management of
empty containers.
(iii) Non-soil fumigant chemical characteristics. Characteristics
of non-soil fumigants, including all of the following:
(A) Chemical characteristics of non-soil fumigants.
(B) Specific human exposure concerns for non-soil fumigants.
(C) How fumigants change from a liquid or solid to a gas.
(D) How fumigants disperse in the application zone.
(E) Incompatibility concerns for tanks, hoses, tubing, and other
equipment.
(iv) Application. Selecting appropriate application methods and
timing, including all of the following:
(A) Application methods and equipment commonly used for non-soil
fumigation.
(B) Site characteristics that can be used to prevent fumigant
exposure.
(C) Conditions that could impact timing of non-soil fumigation
application, such as air stability, air temperature, humidity, and wind
currents, and labeling statements limiting applications when specific
conditions are present.
(D) Conducting pre-application inspection of application equipment
and the site to be fumigated.
(E) Understanding the purpose and methods of sealing the area to be
fumigated, including the factors that determine which sealing method to
use.
[[Page 51412]]
(F) Calculating the amount of product required for a specific
treatment area.
(G) Understanding the basic techniques for calibrating non-soil
fumigation application equipment.
(H) Understanding when and how to conduct air monitoring and when
it is required.
(v) Pest factors. Pest factors that influence fumigant activity,
including all of the following:
(A) Influence of pest factors on fumigant volatility.
(B) Factors that influence gaseous movement through the area being
fumigated and into the air.
(C) Identifying pests causing the damage to be treated by the
fumigation.
(D) Understanding the relationship between pest density and
application rate.
(E) The importance of proper application rate and timing.
(vi) Personal protective equipment. Understanding what personal
protective equipment is necessary and how to use it properly, including
all of the following:
(A) Following labeling directions for required personal protective
equipment.
(B) Selecting, inspecting, using, caring for, replacing, and
disposing of personal protective equipment.
(C) Understanding the types of respirators required when using
specific soil fumigants and how to use them properly, including medical
evaluation, fit testing, and required replacement of cartridges and
cannisters.
(D) Labeling requirements and other laws applicable to medical
evaluation for respirator use, fit tests, training, and recordkeeping.
(viii) Posting requirements. Understanding posting requirements,
including all of the following:
(A) Identifying who is allowed in an area being fumigated or after
fumigation and who is prohibited from being in such areas.
(B) Distinguishing fumigant labeling-required posting and treated
area posting, including the pre-application and post-application
posting timeframes for each.
(C) Proper choice and placement of warning signs.
(3) Aerial applications. Private applicators that use or supervise
the use of restricted use pesticides applied by fixed or rotary wing
aircraft must demonstrate practical knowledge of the pest problems and
pest control practices associated with performing aerial application,
including all the following:
(i) Labeling. Labeling requirements and restrictions specific to
aerial application of pesticides including:
(A) Spray volumes.
(B) Buffers and no-spray zones.
(C) Weather conditions specific to wind and inversions.
(D) Labeling-mandated recordkeeping requirements for aerial
pesticide applications including application conditions if applicable.
(ii) Application equipment. Understand how to choose and maintain
aerial application equipment, including all of the following:
(A) The importance of inspecting application equipment to ensure it
is proper operating condition prior to beginning an application.
(B) Selecting proper nozzles to ensure appropriate pesticide
dispersal and to minimize drift.
(C) Knowledge of the components of an aerial application pesticide
application system, including pesticide hoppers, tanks, pumps, and
types of nozzles.
(D) Interpreting a nozzle flow rate chart.
(E) Determining the number of nozzles for intended pesticide output
using nozzle flow rate chart, aircraft speed, and swath width.
(F) How to ensure nozzles are placed to compensate for uneven
dispersal due to uneven airflow from wingtip vortices, helicopter rotor
turbulence, and aircraft propeller turbulence.
(G) Where to place nozzles to produce the appropriate droplet size.
(H) How to maintain the application system in good repair,
including pressure gauge accuracy, filter cleaning according to
schedule, checking nozzles for excessive wear.
(I) How to calculate required and actual flow rates.
(J) How to verify flow rate using fixed timing, open timing, known
distance, or a flow meter.
(K) When to adjust and calibrate application equipment.
(iii) Application considerations. The applicator must demonstrate
knowledge of factors to consider before and during application,
including all of the following:
(A) Weather conditions that could impact application by affecting
aircraft engine power, take-off distance, and climb rate, or by
promoting spray droplet evaporation.
(B) How to determine wind velocity, direction, and air density at
the application site.
(C) The potential impact of thermals and temperature inversions on
aerial pesticide application.
(iv) Minimizing drift. The applicator must demonstrate knowledge of
methods to minimize off-target pesticide movement, including all of the
following:
(A) How to determine drift potential of a product using a smoke
generator.
(B) How to evaluate vertical and horizontal smoke plumes to assess
wind direction, speed, and concentration.
(C) Selecting techniques that minimize pesticide movement out of
the area to be treated.
(D) Documenting special equipment configurations or flight patterns
used to reduce off-target pesticide drift.
(v) Performing aerial application. The applicator must demonstrate
competency in performing an aerial pesticide application, including all
of the following:
(A) Selecting a flight altitude that minimizes streaking and off-
target pesticide drift.
(B) Choosing a flight pattern that ensures applicator and bystander
safety and proper application.
(C) The importance of engaging and disengaging spray precisely when
entering and exiting a predetermined swath pattern.
(D) Tools available to mark swaths, such as global positioning
systems and flags.
(d) Private applicator minimum age. A private applicator must be at
least 18 years old.
(e) Private applicator competence. The competence of each applicant
for private applicator certification must be determined by the
certifying authority based upon the certification standards set forth
in paragraphs (a) through (d) of this section in order to assure that
private applicators are competent to use and supervise the use of
restricted use pesticides in accordance with applicable State, Tribal,
and Federal laws and regulations. The certifying authority must use
either a written examination process as described in paragraph (e)(1)
of this section or a non-examination training process as described in
paragraph (e)(2) of this section to assure the competence of private
applicators in regard to the general certification standards applicable
to all private applicators, and, if applicable, the specific standards
for the predator pest control category and/or the standards for each
application method-specific category in which an applicator is to be
certified, as provided for in this section. The certifying authority
must follow the labeling requirements for sodium fluoroacetate and
sodium cyanide dispensed through an M-44 device to determine the
competence of applicators in the predator control categories.
(1) Determination of competence by examination. If the certifying
authority uses a written examination process to
[[Page 51413]]
determine the competence of private applicators, the examination
process must meet all of the requirements of Sec. 171.103(a)(2).
(2) Becoming competent through training without examination. Any
applicant for certification as a private applicator may become
competent by completing a training program approved by the certifying
authority. A training program to establish private applicator
competence must conform to all of the following criteria:
(i) Positive photo identification. Each person seeking
certification must present a valid, government-issued photo
identification to the certifying authority or designated representative
as proof of identity and age at the time of the training program to be
eligible for certification.
(ii) Training programs for private applicator general certification
and certification in application method-specific categories. The
training program for general private applicator certification must
cover the competency standards outlined in paragraph (a) of this
section. The training program for each application method-specific
category for private applicator certification must cover the competency
standards outlined in paragraph (c) of this section and must be in
addition to the training program required for general private
applicator certification.
Sec. 171.107 Standards for recertification of certified applicators.
(a) Determination of continued competency. Each commercial and
private applicator certification shall expire 3 years after issuance,
unless the applicator is recertified in accordance with this section. A
certifying authority may establish a shorter certification period. In
order for a certified applicator's certification to continue without
interruption, the certified applicator must be recertified under this
section before the expiration of his or her current certification.
(b) Process for recertification. Minimum standards for
recertification by written examination, or through continuing education
programs, are as follows:
(1) Written examination. A certified applicator may be found
eligible for recertification upon passing a written examination
approved by the certifying authority and that is designed to evaluate
whether the certified applicator demonstrates the level of competency
required by Sec. 171.103 for commercial applicators or Sec. 171.105
for private applicators. The examination shall conform to the
applicable standards for exams set forth in Sec. 171.103(a)(2) of this
chapter and be designed to test the certified applicator's knowledge of
current technologies and practices.
(2) Continuing education programs. A certified applicator may be
found eligible for recertification upon successfully completing a
continuing education program approved by the certifying authority and
designed to ensure the applicator continues to demonstrate the level of
competency required by Sec. 171.103 for commercial applicators or
Sec. 171.105 for private applicators. A recertification process that
relies on a continuing education program to maintain applicator
certification must meet all of the following criteria:
(i) The continuing education program designed for applicator
recertification must be approved by the certifying authority as being
capable of ensuring continued competency.
(ii) A private applicator continuing education program must require
the private applicator to complete six continuing education units
specifically related to the standards of competency outlined in Sec.
171.105(a) before the expiration of the applicator's certification to
qualify for recertification. To qualify for recertification for
application method-specific categories, a private applicator continuing
education program must require the private applicator to complete three
continuing education units specifically related to the standards of
competency outlined in Sec. 171.105(c) for each relevant application
method-specific category certification held by the applicator before
the expiration of the applicator's certification.
(iii) A commercial applicator continuing education program must
require the commercial applicator to complete six continuing education
units specifically related to the core standards of competency for
commercial applicators outlined in Sec. 171.103(c) before the
expiration of the applicator's certification. In addition, a commercial
applicator continuing education program must require the commercial
applicator to complete six continuing education units specifically
related to the standards of competency outlined in Sec. 171.103(d),
(e), and (f) for each relevant pest control category and application
method-specific category of certification held by the applicator before
the expiration of the applicator's certification in order to qualify
for recertification.
(iv) Any education program, including an online or other distance
education program, that grants continuing education units must have a
process to verify the applicator's successful completion of the
educational objectives of the program and positively identify the
applicator taking the continuing education units consistent with the
requirements of Sec. Sec. 171.103(a)(2)(iv) and 171.105(e)(2)(i).
Subpart C--Supervision of Noncertified Applicators
Sec. 171.201 Requirements for direct supervision of noncertified
applicators by certified applicators.
(a) Applicability. This section applies to any certified applicator
who allows or relies on a noncertified applicator to use a restricted
use pesticide under the certified applicator's direct supervision.
(b) General requirements.
(1) The certified applicator must have a practical knowledge of
applicable Federal, State and Tribal supervisory requirements,
including any requirements on the product label and labeling, regarding
the use of restricted use pesticides by noncertified applicators.
(2) The certified applicator must be certified in each category as
set forth in Sec. Sec. 171.101(a) and (b) and 171.105(b) and (c)
applicable to the supervised pesticide use.
(3) The certified applicator must ensure that any noncertified
applicators working under his or her direct supervision have met the
training requirements under paragraph (c) of this section.
(4) If the certified applicator is a commercial applicator, the
certified applicator must prepare and maintain the records required by
paragraph (e) of this section.
(5) The certified applicator must ensure that all noncertified
applicators working under his or her direct supervision are at least 18
years of age.
(6) The certified applicator must ensure that a method for
immediate communication between the certified applicator and each
noncertified applicator working under his or her direct supervision is
available.
(7) The certified applicator must ensure that the full labeling for
the product(s) used during a supervised use is in the possession of
each noncertified applicator during the use.
(8) The certified applicator must be physically present at the site
of the use being supervised when required by the product labeling.
(9) The certified applicator must provide use-specific instructions
for each application to each noncertified applicator, including
labeling directions, precautions, and restrictions mandated by the
specific site; the
[[Page 51414]]
interrelationship between the characteristics of the use site (e.g.,
surface and ground water, endangered species, local population, and
risks) and the conditions of application (e.g., equipment, method of
application, formulation, and risks); and how to use the application
equipment.
(10) The certified applicator must ensure that before any
noncertified applicator uses any equipment for mixing, loading,
transferring, or applying pesticides, the noncertified applicator has
been instructed in the safe operation of such equipment within the last
12 months.
(11) The certified applicator must ensure that before each day of
use equipment used for mixing, loading, transferring, or applying
pesticides is inspected for leaks, clogging, and worn or damaged parts.
If worn or damaged parts or equipment are found, the certified
applicator must ensure that any damaged equipment is repaired or
replaced prior to use.
(12) Where the labeling of a pesticide product requires that
personal protective equipment be worn for mixing, loading, application,
or any other use activities, the certified applicator must ensure that
any noncertified applicator using restricted use pesticides under his
or her direct supervision has the label-required personal protective
equipment, that the personal protective equipment is worn and used
correctly for its intended purpose, and that the personal protective
equipment is clean and in proper operating condition.
(c) Training requirement. Before any noncertified applicator uses a
restricted use pesticide under the direct supervision of the certified
applicator, the supervising certified applicator must ensure that the
noncertified applicator has met at least one of the following
qualifications:
(1) The noncertified applicator has been trained in accordance with
paragraph (d) of this section within the last 12 months.
(2) The noncertified applicator has met the training requirements
for an agricultural handler under Sec. 170.201(c) within the last 12
months.
(3) The noncertified applicator has passed an examination covering
the core standards of competency for commercial applicators outlined in
Sec. 171.103(c) within the last 3 years.
(d) Noncertified applicator training programs. (1) General
noncertified applicator training must be presented to applicators
either orally from written materials or audio visually. The information
must be presented in a manner that the noncertified applicators can
understand, such as through a translator. The person conducting the
training must be present during the entire training program and must
respond to the noncertified applicators' questions.
(2) The person who conducts the training must meet at least one of
the following criteria:
(i) Be currently certified as an applicator of restricted use
pesticides under this part.
(ii) Be currently designated as a trainer of certified applicators
or pesticide handlers by a State, Tribal, or Federal agency having
jurisdiction.
(iii) Have completed a pesticide safety train-the-trainer program
under 40 CFR part 170.
(3) The noncertified applicator training materials must include the
information that noncertified applicators need to protect themselves,
other people, and the environment before, during, and after making a
restricted use pesticide application. The noncertified applicator
training materials must include, at a minimum, the following:
(i) Format and meaning of information contained in pesticide labels
and labeling, including safety information, such as precautionary
statements about human health hazards.
(ii) Hazards of pesticides resulting from toxicity and exposure,
including acute and chronic effects, delayed effects, and
sensitization.
(iii) Routes by which pesticides can enter the body.
(iv) Signs and symptoms of common types of pesticide poisoning.
(v) Emergency first aid for pesticide injuries or poisonings.
(vi) How to obtain emergency medical care.
(vii) Routine and emergency decontamination procedures.
(viii) Need for and proper use of personal protective equipment.
(ix) Prevention, recognition, and first aid treatment of heat-
related illness associated with the use of personal protective
equipment.
(x) Safety requirements for handling, transporting, storing, and
disposing of pesticides, including general procedures for spill
cleanup.
(xi) Environmental concerns such as drift, runoff, and wildlife
hazards.
(xii) Warnings against taking pesticides or pesticide containers
home.
(xiii) Washing and changing work clothes before physical contact
with family.
(xiv) Washing work clothes separately from the family's clothes
before wearing them again.
(xv) Precautions required to protect children and pregnant women.
(xvi) How to report suspected pesticide illness to the appropriate
State agency.
(xvii) Instructions that the certified applicator must provide use-
specific instructions for each application to the noncertified
applicator(s), including labeling directions, precautions, and
restrictions mandated by the specific site; the interrelationship
between the characteristics of the use site (e.g., surface and ground
water, endangered species, local population, and risks) and the
conditions of application (e.g., equipment, method of application,
formulation, and risks); and how to use the application equipment.
(e) Recordkeeping. For each noncertified applicator who uses a
restricted use pesticide under a commercial applicator's direct
supervision, the commercial applicator supervising any noncertified
applicator must collect and maintain at the commercial applicator's
principal place of business for 2 years from the date of meeting the
training requirements of paragraph (d) of this section, the following
information:
(1) The noncertified applicator's printed name and signature.
(2) The date the training requirement in paragraph (d) of this
section was met.
(3) The name of the person who provided the training or the
certifying agency, as applicable.
(4) The supervising certified applicator's name.
(f) Compliance date. After [date 2 years and 60 days after date of
publication of the final rule in the Federal Register], any certified
applicator who supervises a noncertified applicator using a restricted
use pesticide under his or her direct supervision must comply with the
requirements of this section.
Subpart D--Certification Plans
Sec. 171.301 General.
(a) Jurisdiction. A certification issued under a particular
certifying authority's certification plan is only valid within the
geographical area covered by the certification plan approved by the
Agency.
(b) Status of certification plans approved before effective date. A
certification plan approved by EPA before the effective date of this
part remains approved until [date 4 years and 60 days after date of
publication of the final rule in the Federal Register], except as
provided in paragraphs (c)(4) and (5) of this section.
(c) Compliance dates. (1) After [date 4 years and 60 days after
date of publication of the final rule in the
[[Page 51415]]
Federal Register], a State, Tribe or Federal agency may only certify
applicators of restricted use pesticides in accordance with a
certification plan that meets or exceeds all of the applicable
requirements of this part and has been approved by the Agency.
(2) A State, Tribe or Federal agency that currently has an EPA-
approved plan for the certification of applicators of restricted use
pesticides and that chooses to certify applicators of restricted use
pesticides under this part must submit to EPA for review and approval a
revised certification plan that meets or exceeds all of the applicable
requirements of this part no later than [date 2 years and 60 days after
date of publication of the final rule in the Federal Register].
(3) If the Agency approves a certification plan submitted no later
than [date 2 years and 60 days after date of publication of the final
rule in the Federal Register], a State, Tribe, or Federal agency may
only certify applicators of restricted use pesticides in accordance
with the approved revised plan.
(4) If after [date 2 years and 60 days after date of publication of
the final rule in the Federal Register] EPA has received but not yet
approved the State, Tribal, or Federal agency certification plan
revision submitted no later than [date 2 years and 60 days after date
of publication of the final rule in the Federal Register], the State,
Tribe, or Federal Agency may continue to certify applicators under the
certification plan approved before the rule's effective date until such
time as EPA approves a revised certification plan that meets or exceeds
all applicable requirements of this part.
(5) States, Tribes, or Federal agencies that do not have an EPA-
approved certification plan before the effective date of this rule may
submit to EPA for review and approval a certification plan that meets
or exceeds all of the applicable requirements of this part any time
after the effective date of this rule.
Sec. 171.303 Requirements for State certification plans.
(a) Conformance with Federal standards for certification of
applicators of restricted use pesticides. A State may certify
applicators of restricted use pesticides only in accordance with a
State certification plan submitted to and approved by the Agency.
(1) The State certification plan must include a full description of
the proposed process the State will use to assess applicator competency
to use or supervise the use of restricted use pesticides in the State.
(2) The State plan must list and describe the categories of
certification from the certification categories listed in Sec. Sec.
171.101(a) and (b) and 171.105(b) and (c), that will be included in the
plan except that:
(i) A State may omit any unneeded certification categories.
(ii) A State may designate subcategories within the categories
described in Sec. Sec. 171.101(a) and (b) and 171.105(c) as it deems
necessary, with the exception of the predator pest control categories
outlined in Sec. Sec. 171.101(a)(10) and 171.105(b).
(iii) A State may adopt additional certification categories for
specific types of pest control or application methods not covered by
the existing Federal categories described in Sec. Sec. 171.101(a) and
(b) and 171.105(b) and (c).
(3) For each of the categories adopted pursuant to paragraph (b)(1)
of this section, the State plan must include standards for the
certification of applicators of restricted use pesticides that meet or
exceed those standards prescribed by the Agency under Sec. Sec.
171.101 through 171.105.
(4) The State standards for the recertification of applicators of
restricted use pesticides must meet or exceed those standards
prescribed by the Agency under Sec. 171.107.
(5) The State standards for the direct supervision of noncertified
applicators by certified private and commercial applicators of
restricted use pesticides must meet or exceed those standards
prescribed by the Agency under Sec. 171.201.
(6) The State certification plan must contain provisions for
issuance of appropriate credentials or documents by the certifying
authority verifying certification of applicators. The credential or
document must contain all of the following information:
(i) The full name of the certified applicator.
(ii) The certification, license, or credential number of the
certified applicator.
(iii) The type of certification (private or commercial).
(iv) The category(ies), including any pest control categories,
application method-specific category(ies), and subcategory(ies) in
which the applicator is certified.
(v) The expiration date of the certification(s).
(vi) If the certification is based on a certification issued by
another State, Tribe or Federal agency, a statement identifying the
State, Tribe or Federal agency certification upon which this
certification is based.
(7) The State certification plan must explain whether, and if so,
under what circumstances, the State will certify applicators based in
whole or in part on their holding a valid current certification issued
by another State, Tribe or Federal agency. Such certifications are
subject to all of the following conditions:
(i) A State may rely only on valid current certifications that are
issued directly under an approved State, Tribal or Federal agency
certification plan and are not based on another certifying authority's
certification.
(ii) The State certification regulations must provide that any
certification that is based in whole or in part on the applicator
holding a valid current certification issued by another State, Tribe or
Federal agency terminates automatically if the certification on which
it is based terminates for any reason.
(iii) The State issuing a certification based in whole or in part
on the applicator holding a valid current certification issued by
another State, Tribe or Federal agency must issue an appropriate State
credential or document to the applicator in accordance with paragraph
(a)(6) of this section.
(b) Contents of a request for EPA approval of a State plan for
certification of applicators of restricted use pesticides.
(1) The application for Agency approval of a State certification
plan must list and describe the categories of certification from the
certification categories.
(2) The application for Agency approval of a State certification
plan must contain satisfactory documentation that the State standards
for the certification of applicators of restricted use pesticides meet
or exceed those standards prescribed by the Agency under Sec. Sec.
171.101 through 171.105. Such documentation must include one of the
following:
(i) A statement that the State has adopted the same standards for
certification prescribed by the Agency under Sec. Sec. 171.101 through
171.105 and a citation of the specific State laws and/or regulations
demonstrating that the State has adopted such standards.
(ii) A statement that the State has adopted its own standards that
meet or exceed the standards for certification prescribed by the Agency
under Sec. Sec. 171.101 through 171.105. If the State selects this
option, the certification plan must include both:
(A) A list and detailed description of all the categories,
application method-specific categories, and subcategories to
[[Page 51416]]
be used for certification of private and commercial applicators in the
State and a citation to the specific State laws and/or regulations
demonstrating that the State has adopted such categories, application
method-specific categories, and subcategories.
(B) A list and detailed description of all of the standards for
certification of private and commercial applicators adopted by the
State and a citation to the specific State laws and/or regulations
demonstrating that the State has adopted such standards. Any additional
pest control categories, application-method specific categories, or
subcategories established by a State must be included in the
application for Agency approval of a State plan and must clearly
delineate the standards the State will use to determine if the
applicator is competent.
(3) The application for Agency approval of a State certification
plan must contain satisfactory documentation that the State standards
for the recertification of applicators of restricted use pesticides
meet or exceed those standards prescribed by the Agency under Sec.
171.107. Such documentation must include a statement that the State has
adopted its own standards that meet or exceed the standards for
recertification prescribed by the Agency under Sec. 171.107. The
application for Agency approval of a certification plan must include a
list and detailed description of all of the State standards for
recertification of private and commercial applicators and a citation of
the specific State laws and/or regulations demonstrating that the State
has adopted such standards.
(4) The application for Agency approval of a State certification
plan must contain satisfactory documentation that the State standards
for the direct supervision of noncertified applicators by certified
private and commercial applicators of restricted use pesticides meet or
exceed those standards prescribed by the Agency under Sec. 171.201.
Such documentation must include one or both of the following as
applicable:
(i) A statement that the State has met or exceeded the standards
for direct supervision of noncertified applicators by certified private
and/or commercial applicators prescribed by the Agency under Sec.
171.201 and a citation of the specific State laws and/or regulations
demonstrating that the State has adopted such standards.
(ii) A statement that the State prohibits noncertified applicators
from using restricted use pesticides under the direct supervision of
certified private and/or commercial applicators, and a citation of the
specific State laws and/or regulations demonstrating that the State has
adopted such a prohibition.
(5) The application for Agency approval of a State certification
plan must include all of the following:
(i) A written designation of the State agency by the Governor of
that State as the lead agency responsible for being the primary
certifying authority and administering the certification plan in the
State. The lead agency will serve as the central contact point for the
Agency. The certification plan must identify the primary point of
contact at the lead agency responsible for administering the
certification plan and serving as the central contact for the Agency on
any issues related to the State certification plan. In the event that
more than one agency or organization will be responsible for performing
functions under the certification plan, the plan must identify all
cooperators and list the functions to be performed by each agency or
organization, including compliance monitoring and enforcement
responsibilities. The plan must indicate how the plan will be
coordinated by the lead agency to ensure consistency of the
administration of the certification plan throughout the state.
(ii) A written opinion from the State attorney general or from the
legal counsel of the State lead agency that states the lead agency and
other cooperating agencies have the legal authority necessary to carry
out the plan.
(iii) A listing of the qualified personnel that the lead agency and
any cooperating agencies or organizations have to carry out the plan.
The list must include the number of staff, job titles, and job
functions of such personnel of the lead agency and any cooperating
units.
(iv) A commitment by the State that the lead agency and any
cooperators will ensure sufficient resources are available to carry out
the applicator certification program as detailed in the plan.
(6) The application for Agency approval of a State certification
plan must include a complete copy of all State laws and regulations
relevant to the certification plan. In addition, the plan must include
citations to the specific State laws and regulations that demonstrate
specific legal authority for each of the following:
(i) Provisions for and listing of the acts which would constitute
grounds for denying, suspending and revoking certification of
applicators. Such grounds must include, at a minimum, misuse of a
pesticide and falsification of any records required to be maintained by
the certified applicator.
(ii) Provisions for reviewing, and where appropriate, suspending or
revoking an applicator's certification based on the applicator's
conduct or a criminal conviction under section 14(b) of FIFRA, a final
order imposing civil penalty under section 14(a) of FIFRA, or
conclusion of a State enforcement action for violations of State laws
or regulations relevant to the certification plan.
(iii) Provisions for assessing criminal and civil penalties for
violations of State laws or regulations relevant to the certification
plan.
(iv) Provisions for right of entry by consent or warrant by State
officials at reasonable times for sampling, inspection, and observation
purposes.
(v) Provisions making it unlawful for persons other than certified
applicators or noncertified applicators working under a certified
applicator's direct supervision to use restricted use pesticides.
(vi) Provisions requiring certified commercial applicators to
record and maintain for the period of at least two years routine
operational records containing information on types, amounts, uses,
dates, and places of application of restricted use pesticides and for
ensuring that such records will be available to appropriate State
officials. Such provisions must require commercial applicators to
record and maintain, at a minimum, all of the following:
(A) The name and address of the person for whom the restricted use
pesticide was applied.
(B) The location of the restricted use pesticide application.
(C) The size of the area treated.
(D) The crop, commodity, stored product, or site to which the
restricted use pesticide was applied.
(E) The time and date of the restricted use pesticide application.
(F) The brand or product name of the restricted use pesticide
applied.
(G) The EPA registration number of the restricted use pesticide
applied.
(H) The total amount of the restricted use pesticide applied per
location per application.
(I) The name and certification number of the certified applicator
that made or supervised the application, and, if applicable, the name
of any noncertified applicator(s) that made the application under the
direct supervision of the certified applicator.
(J) Records required under Sec. 171.201(c).
(vii) Provisions requiring persons who distribute or sell
restricted use
[[Page 51417]]
pesticides to record and maintain at each individual dealership, for
the period of at least 2 years, records of each transaction where a
restricted use pesticide is distributed or sold to any person,
excluding transactions solely between persons who are pesticide
producers, registrants, wholesalers, or retail sellers, acting only in
those capacities. Records of each such transaction must include all of
the following information:
(A) Name and address of the residence or principal place of
business of each certified applicator to whom the restricted use
pesticide was distributed or sold, or if applicable, the name and
address of the residence or principal place of business of each
noncertified person to whom the restricted use pesticide was
distributed or sold for application by a certified applicator.
(B) The certification number on the certification document
presented to the seller evidencing the valid certification of the
certified applicator authorized to purchase the restricted use
pesticide, the State, Tribe or Federal agency that issued the
certification document, the expiration date of the certified
applicator's certification, and the categories in which the applicator
is certified.
(C) The product name and EPA registration number of the restricted
use pesticide(s) distributed or sold in the transaction, including any
applicable emergency exemption or State special local need registration
number.
(D) The quantity of the restricted use pesticide(s) distributed or
sold in the transaction.
(E) The date of the transaction.
(c) Requirement to submit reports to the Agency. The State must
submit reports to the Agency in a manner and containing the information
that the Agency requires, including all of the following:
(1) An annual report to be submitted by the State lead agency to
the Agency by the date established by the Agency that includes all of
the following information:
(i) The number of new, recertified, and total applicators holding a
valid general private applicator certification at the end of the last
12 month reporting period.
(ii) For each application method-specific category specified in
Sec. 171.105(c), the numbers of new, recertified and total existing
private applicators holding valid current certifications at the end of
the last 12 month reporting period.
(iii) The numbers of new, recertified, and total commercial
applicators certified in at least one certification category at the end
of the last 12 month reporting period.
(iv) For each commercial applicator pest control certification
category specified in Sec. 171.101(a), the numbers of new, recertified
and total commercial applicators holding a valid certification in each
of those categories at the end of the last 12 month reporting period.
(v) For each application method-specific category specified in
Sec. 171.101(b), the numbers of new, recertified and total existing
commercial applicators holding valid current certifications at the end
of the last 12 month reporting period.
(vi) If a State has established subcategories within any of the
commercial categories, the report must include the numbers of new,
recertified and total commercial applicators holding valid
certifications in each of the subcategories at the end of the last 12
month reporting period.
(vii) A description of any modifications made to the approved
certification plan during the last 12 month reporting period that have
not been previously evaluated by the Agency under Sec. 171.309(a)(3).
(viii) A description of any proposed changes to the certification
plan that the State anticipates making during the next reporting period
that may affect the certification program.
(ix) The number and description of enforcement actions taken for
any violations of Federal or State laws and regulations involving use
of restricted use pesticides during the last 12-month reporting period.
(x) A narrative summary and causal analysis of any misuse incidents
or enforcement actions related to use of restricted use pesticides
during the last 12 month reporting period. The summary should include
the pesticide name and registration number, use or site involved,
nature of violation, any adverse effects, most recent date of the
certified applicator's certification or recertification and, if
applicable, the date of qualification of any noncertified applicator
using restricted use pesticides under the direct supervision of the
certified applicator. This summary should include a discussion of
potential changes in policy or procedure to prevent future incidents or
violations.
(2) Any other reports that may be required by the Agency to meet
specific needs.
Sec. 171.305 Requirements for Federal agency certification plans.
(a) A Federal agency may certify applicators of restricted use
pesticides only in accordance with a Federal agency certification plan
submitted to and approved by the Agency. Certification must be limited
to the employees of the Federal agency covered by the certification
plan and will be valid only for those uses of restricted use pesticides
conducted in the performance of the employees' official duties.
(1) The Federal agency certification plan must include a full
description of the proposed process the Federal agency will use to
assess applicator competency to use or supervise the use of restricted
use pesticides.
(2) Employees certified by the Federal agency must meet the
standards for commercial applicators.
(3) The Federal agency plan must list and describe the categories
of certification from the certification categories listed in Sec. Sec.
171.101(a) and (b) that will be included in the plan except that:
(i) A Federal agency may omit any unneeded certification
categories.
(ii) A Federal agency may designate subcategories within the
categories described in Sec. Sec. 171.101(a) and (b) as it deems
necessary, with the exception of the predator pest control categories
outlined in Sec. Sec. 171.101(a)(10).
(iii) A Federal agency may adopt additional certification
categories for specific types of pest control or application methods
not covered by the existing Federal categories described in Sec. Sec.
171.101(a) and (b).
(4) For each of the categories adopted pursuant to paragraph (b)(2)
of this section, the Federal agency plan must include standards for the
certification of applicators of restricted use pesticides that meet or
exceed those standards prescribed by the Agency under Sec. Sec.
171.101 through 171.103.
(5) The Federal agency standards for the recertification of
applicators of restricted use pesticides must meet or exceed those
standards prescribed by the Agency under Sec. 171.107.
(6) The Federal agency standards for the direct supervision of
noncertified applicators by certified private and commercial
applicators of restricted use pesticides meet or exceed those standards
prescribed by the Agency under Sec. 171.201.
(7) The Federal agency certification plan must contain provisions
for issuance of appropriate credentials or documents by the certifying
authority verifying certification of applicators. The credential or
document must contain all information listed in Sec. 171.303(a)(6),
except for the requirement to list the type of certification at Sec.
171.303(a)(6)(iii).
(8) The Federal agency certification plan must explain whether, and
if so,
[[Page 51418]]
under what circumstances, the Federal Agency will certify applicators
based in whole or in part on their holding a valid current
certification issued by another State, Tribe or Federal agency. Such
certifications are subject to all of the conditions listed at Sec.
171.303(a)(7).
(b) Contents of a request for EPA approval of a Federal agency plan
for certification of applicators of restricted use pesticides.
(1) The application for Agency approval of a Federal agency
certification plan must list and describe the categories of
certification from the certification categories.
(2) The application for Agency approval of a Federal Agency
certification plan must contain a statement that the Federal agency
standards for certification of applicators of restricted use pesticides
meet or exceed those standards prescribed by the Agency under
Sec. Sec. 171.101 and 171.103. Such a statement must include one of
the following:
(i) A statement that the Federal agency has adopted the same
standards for certification prescribed by the Agency under Sec. Sec.
171.101 through 171.103.
(ii) A statement that the Federal agency has adopted its own
standards that meet or exceed the standards for certification
prescribed by the Agency under Sec. Sec. 171.101 through 171.103. If
the Federal agency selects this option, the certification plan must
include both:
(A) A list and detailed description of all the categories,
application method-specific categories, and subcategories to be used
for certification of private and commercial applicators.
(B) A list and detailed description of all of the standards for
certification of commercial applicators adopted by the Federal agency.
Any additional pest control categories, application-method specific
categories, or subcategories established by a Federal agency must be
included in the application for Agency approval of a Federal agency
plan and must clearly delineate the standards the Federal agency will
use to determine if the applicator is competent.
(3) The application for Agency approval of a Federal agency plan
must include a statement that the Federal agency has adopted standards
for recertification that meet or exceed the standards for certification
prescribed by the Agency under Sec. 171.107. If the Federal agency
adopts its own standards for recertification, the application for
Agency approval of a Federal agency certification plan must include a
list and detailed description of all the standards for recertification
adopted by the Federal agency.
(4) The application for Agency approval of a Federal Agency
certification plan must contain a statement that the Federal agency
standards for direct supervision of noncertified applicators by
certified commercial applicators meet or exceed those standards
prescribed by the Agency under Sec. 171.201, or a statement that the
Federal agency prohibits noncertified applicators from using restricted
use pesticides under the direct supervision of certified commercial
applicators.
(5) The application for Agency approval of a Federal agency
certification plan must meet or exceed all of the applicable
requirements in Sec. 171.303. However, in place of the legal
authorities required in Sec. 171.303(b)(6), the Federal agency may use
administrative controls inherent in the employer-employee relationship
to accomplish the objectives of Sec. 171.303(b)(6). The application
for Agency approval of a Federal agency certification plan must include
a detailed description of how the Federal agency will exercise its
administrative authority, where appropriate to deny, suspend or revoke
certificates of employees who misuse pesticides, falsify records or
violate relevant provisions of FIFRA. Similarly, the application for
Agency approval of a Federal agency certification plan must include a
commitment that the Federal agency will record and maintain for the
period of at least two years routine operational records containing
information on types, amounts, uses, dates, and places of application
of restricted use pesticides and that such records will be available to
State and Federal officials. Such recordkeeping requirements must
require Federal agency employees certified as commercial applicators to
record and maintain, at a minimum, all of the records specified in
Sec. 171.303(b)(6)(vi).
(c) Commitment to do annual reports. The application for Agency
approval of a Federal agency certification plan must include a
commitment by the Federal agency to submit an annual report to the
Agency in a manner that the Agency requires that includes all of the
following information:
(1) The numbers of new, recertified, and total commercial
applicators certified in at least one certification category at the end
of the last 12 month reporting period.
(2) For each commercial applicator certification category specified
in Sec. 171.101(a), the numbers of new, recertified and total
commercial applicators holding a valid certification in each of those
categories at the end of the last 12 month reporting period.
(3) For each application method-specific category specified in
Sec. 171.101(b), the numbers of new, recertified and total existing
commercial applicators holding valid current certifications at the end
of the last 12 month reporting period.
(4) If the Federal agency has established subcategories within any
of the commercial categories, the report must include the numbers of
new, recertified and total commercial applicators holding valid
certifications in each of those subcategories at the end of the last 12
month reporting period.
(5) A description of any modifications made to the approved
certification plan during the last 12 month reporting period that have
not been previously evaluated under Sec. 171.309(a)(3).
(6) A description of any proposed changes to the certification plan
that may affect the certification program that the Federal agency
anticipates making during the next reporting period.
(7) The number and description of enforcement actions taken for any
violations of Federal or State laws and regulations involving use of
restricted use pesticides during the last 12-month reporting period.
(8) A narrative summary of misuse incidents or enforcement
activities related to use of restricted use pesticides during the last
twelve-month reporting period. This section should include a discussion
of potential changes in policy or procedure to prevent future incidents
or violations.
(d) Commitment to do other reports. The application for Agency
approval of a Federal agency certification plan must include a
commitment by the Federal agency to submit any other reports that may
be required by the Agency to meet specific needs.
(e) Additional requirements for certain application. If applicators
certified under the Federal agency plan will make any applications of
restricted use pesticides in States or Indian country, the application
for Agency approval of a Federal agency certification plan must meet
the following additional requirements:
(1) The Federal agency plan must have a provision that affirms
Federal agency certified applicators will comply with all applicable
State and Tribal pesticide laws and regulations of the jurisdiction in
which the restricted pesticide is being used when using restricted use
pesticides in States or Indian country, including any substantive State
or Tribal standards in regard to qualifications for commercial
[[Page 51419]]
applicator certification that exceed the Federal agency's standards.
(2) The Federal agency plan must have a provision for the Federal
agency to notify the appropriate EPA regional office and State or
Tribal pesticide authority in the event of misuse or suspected misuse
of a restricted use pesticide by a Federal agency employee and any
pesticide exposure incident involving human or environmental harm that
may have been caused by an application of a restricted use pesticide
made by a Federal agency employee.
(3) The Federal agency plan must have a provision for the Federal
agency to cooperate with the Agency and the State or Tribal pesticide
authority in any investigation or enforcement action undertaken in
connection with an application of a restricted use pesticide made by a
Federal agency employee.
Sec. 171.307 Certification of applicators in Indian country.
All applicators of restricted use pesticides in Indian country must
hold a certification valid in that area of Indian country, or be
working under the direct supervision of a certified applicator whose
certification is valid in that area of Indian country. An Indian Tribe
may certify applicators of restricted use pesticides in Indian country
only pursuant to a certification plan approved by the Agency that meets
the requirements of paragraph (a) or (b) of this section. The Agency
may implement a Federal certification plan, pursuant to paragraph (c)
of this section and Sec. 171.311, for an area of Indian country not
covered by an approved plan.
(a) An Indian Tribe may choose to allow persons holding currently
valid certifications issued under one or more specified State, Tribal,
or Federal agency certification plans to use restricted use pesticides
within the Tribe's Indian country.
(1) A certification plan under paragraph (a) must consist of a
written agreement between the Tribe and the relevant EPA Region(s) that
contains the following information:
(i) A detailed map or legal description of the area(s) of Indian
country covered by the plan.
(ii) A listing of the State(s), Tribe(s) or Federal agency(ies)
upon whose certifications the Tribe will rely.
(iii) A description of any Tribal law, regulation, or code relating
to application of restricted use pesticides in the covered area of
Indian country, including a citation to each applicable Tribal law,
regulation, or code.
(iv) A description of the procedures and relevant authorities for
carrying out compliance monitoring under and enforcement of the plan,
including:
(A) A description of the Agency and Tribal roles and procedures for
conducting inspections.
(B) A description of the Agency and Tribal roles and procedures for
handling case development and enforcement actions and actions on
certifications, including procedures for exchange of information.
(C) A description of the Agency and Tribal roles and procedures for
handling complaint referrals.
(v) A description and copy of any separate agreements relevant to
administering the certification plan and carrying out related
compliance monitoring and enforcement activities. The description shall
include a listing of all parties involved in the separate agreement and
the respective roles, responsibilities, and relevant authorities of
those parties.
(2) To the extent that an Indian Tribe is precluded from asserting
criminal enforcement authority, the Federal government will exercise
primary criminal enforcement authority for certification plans under
paragraph (a) of this section. The Tribe and the relevant EPA region(s)
shall develop a procedure whereby the Tribe will provide potential
investigative leads to EPA and/or other appropriate Federal agencies in
an appropriate and timely manner. This procedure shall encompass, at a
minimum, all circumstances in which the Tribe is incapable of
exercising relevant criminal enforcement requirements. This procedure
shall be included as part of the agreement between the Tribe and
relevant EPA Region(s) described in paragraph (a)(1) of this section.
(3) A plan for the certification of applicators under paragraph (a)
of this section shall not be effective until the agreement between the
Tribe and the relevant EPA Region(s) has been signed by the Tribe and
the appropriate EPA Regional Administrator(s).
(b) An Indian Tribe may choose to develop its own certification
plan for certifying private and commercial applicators to use or
supervise the use of restricted use pesticides.
(1) A certification plan under paragraph (b) of this section shall
consist of a written plan submitted by the Tribe to the Agency for
approval that includes all of the following information:
(i) A detailed map or legal description of the area(s) of Indian
country covered by the plan.
(ii) A demonstration that the plan meets all requirements of Sec.
171.303 applicable to State plans, except that the Tribe's plan will
not be required to meet the requirements of Sec. 171.303(i)(3) with
respect to provisions for criminal penalties, or any other requirement
for assessing criminal penalties.
(2) To the extent that an Indian Tribe is precluded from asserting
criminal enforcement authority, the Federal government will exercise
primary criminal enforcement authority for certification plans under
paragraph (b) of this section. The Tribe and the relevant EPA Region(s)
shall develop a procedure whereby the Tribe will provide potential
investigative leads to EPA and/or other appropriate Federal agencies in
an appropriate and timely manner. This procedure shall encompass, at a
minimum, all circumstances in which the Tribe is incapable of
exercising relevant criminal enforcement requirements and shall be
described in a memorandum of agreement signed by the Tribe and the
relevant EPA Regional Administrator(s).
(3) A plan for the certification of applicators under paragraph (b)
of this section shall not be effective until the memorandum of
agreement required under paragraph (b)(2) of this section has been
signed by the Tribe and the relevant EPA Region(s) and the plan has
been approved by the Agency.
(c) In any area of Indian country not covered by an approved
certification plan, the Agency may, in consultation with the Tribe(s)
affected, implement an EPA-administered certification plan under Sec.
171.311 for certifying private and commercial applicators to use or
supervise the use of restricted use pesticides.
(1) Prior to publishing a notice of a proposed EPA-administered
certification plan for an area of Indian country in the Federal
Register for review and comment under Sec. 171.311(d)(3), the Agency
shall notify the relevant Indian Tribe(s) of EPA's intent to propose
the plan.
(2) The Agency will not implement an EPA-administered certification
plan for any area of Indian country where, prior to the expiration of
the notice and comment period provided under Sec. 171.311(d)(3), the
chairperson or equivalent elected leader of the relevant Tribe provides
the Agency with a written statement of the Tribe's position that the
plan should not be implemented.
Sec. 171.309 Modification and withdrawal of certification plans.
(a) Modifications to approved certification plans. A State, Tribe,
or Federal agency may make modifications to its approved certification
plan,
[[Page 51420]]
provided that all of the following conditions are met:
(1) Determination of plan compliance. Before modifying an approved
certification plan, the State, Tribe, or Federal agency must determine
that the proposed modifications will not impair the certification
plan's compliance with the requirements of this part or any other
Federal laws or regulations.
(2) Requirement for Agency notification. The State, Tribe, or
Federal agency must notify the Agency of any plan modifications within
90 days after the final State, Tribal, or Federal agency modifications
become effective or when it submits its required annual report to the
Agency, whichever occurs first.
(3) Additional requirements for substantial modifications to
approved certification plans. Before making any substantial
modifications to an approved certification plan, the State, Tribe or
Federal agency must consult with the Agency and obtain Agency approval
of the proposed modifications. The Agency shall make a written
determination regarding the modified certification plan's compliance
with the requirements of this part. Substantial modifications include
the following:
(i) Deletion of a mechanism for certification and/or
recertification.
(ii) Establishment of a new private applicator subcategory,
commercial applicator category, or commercial applicator subcategory.
(iii) Any other changes that the Agency has notified the State,
Tribal or Federal agency that the Agency considers to be substantial
modifications.
(b) Withdrawal of approval. If at any time the Agency determines
that a State, Tribal, or Federal agency certification plan does not
comply with the requirements of this part or any other Federal laws or
regulations, or that a State, Tribal, or Federal agency is not
administering the certification plan as approved under this part, or
that a State is not carrying out a program adequate to ensure
compliance with FIFRA section 19(f), the Agency may withdraw approval
of the certification plan. Before withdrawing approval of a
certification plan, the Agency will notify the State, Tribal, or
Federal agency and provide the opportunity for an informal hearing. If
appropriate, the Agency may allow the State, Tribe, or Federal agency a
reasonable time, not to exceed 90 days, to take corrective action.
Sec. 171.311 EPA-administered applicator certification programs.
(a) Applicability. This section applies in any State or area of
Indian country where there is no approved State or Tribal certification
plan in effect.
(b) Certification requirement. In any State or area of Indian
country where EPA administers a certification plan, any person who uses
or supervises the use of any restricted use pesticide must meet one of
the following criteria:
(1) A commercial applicator must be certified in each category and
subcategory, if any, and each application method, if any, as described
in the EPA-administered plan, for which the applicator is applying or
supervising the application of restricted use pesticides.
(2) A private applicator must be certified, including in each
application method, if any, as described in the EPA-administered plan,
for which the applicator is applying or supervising the application of
restricted use pesticides.
(3) A noncertified applicator may only use a restricted use
pesticide under the direct supervision of an applicator certified under
the EPA-administered plan, in accordance with the requirements in Sec.
171.201, and only for uses authorized by that certified applicator's
certification.
(c) Implementation of EPA-administered plans in States. (1) In any
State where this section is applicable, the Agency, in consultation
with the Governor, may implement an EPA-administered plan for the
certification of applicators of restricted use pesticides.
(2) Such a plan will meet the applicable requirements of Sec.
171.303. Prior to the implementation of the plan, the Agency will
publish in the Federal Register for review and comment a summary of the
proposed EPA-administered plan for the certification of applicators and
will generally make available copies of the proposed plan within the
State. The summary will include all of the following:
(i) An outline of the proposed procedures and requirements for
private and commercial applicator certification and recertification.
(ii) A description of the proposed categories and subcategories for
certification.
(iii) A description of any proposed conditions for the recognition
of State, Tribal, or Federal agency certifications.
(iv) An outline of the proposed arrangements for coordination and
communication between the Agency and the State regarding applicator
certifications and pesticide compliance monitoring and enforcement.
(d) Implementation of EPA-administered plans in Indian country.
(1) In any area of Indian country where this section is applicable,
and consistent with the provisions of Sec. 171.309(c), the Agency, in
consultation with the appropriate Indian Tribe(s), may implement a plan
for the certification of applicators of restricted use pesticides.
(2) An EPA-administered plan may be implemented in the Indian
country of an individual Tribe or multiple Tribes located within a
specified geographic area.
(3) Such a plan will meet the applicable requirements of Sec.
171.309(c). Prior to the implementation of the plan, the Agency will
publish in the Federal Register for review and comment a summary of the
proposed EPA-administered plan for the certification of applicators and
will generally make available copies of the proposed plan within the
area(s) of Indian country to be covered by the proposed plan. The
summary will include all of the following:
(i) A description of the area(s) of Indian country to be covered by
the proposed plan.
(ii) An outline of the proposed procedures and requirements for
private and commercial applicator certification and recertification.
(iii) A description of the proposed categories and subcategories
for certification.
(iv) A description of any proposed conditions for the recognition
of State, Tribal, or Federal agency certifications.
(v) An outline of the proposed arrangements for coordination and
communication between the Agency and the relevant Tribe(s) regarding
applicator certifications and pesticide compliance monitoring and
enforcement.
(e) Denial, suspension, modification, or revocation of a
certification. (1) The Agency may suspend all or part of a certified
applicator's certification issued under an EPA-administered plan or,
after opportunity for a hearing, may deny issuance of, or revoke or
modify, a certified applicator's certification issued under an EPA-
administered plan, if the Agency finds that the certified applicator
has been convicted under section 14(b) of the Act, has been subject to
a final order imposing a civil penalty under section 14(a) of the Act,
or has committed any of the following acts:
(i) Used any registered pesticide in a manner inconsistent with its
labeling.
(ii) Made available for use, or used, any registered pesticide
classified for restricted use other than in accordance with section
3(d) of the Act and any regulations promulgated thereunder.
(iii) Refused to keep and maintain any records required pursuant to
this section.
[[Page 51421]]
(iv) Made false or fraudulent records, invoices or reports.
(v) Failed to comply with any limitations or restrictions on a
valid current certificate.
(vi) Violated any other provision of the Act and the regulations
promulgated thereunder.
(vii) Allowed a noncertified applicator to use a restricted use
pesticide in a manner inconsistent with the requirements in Sec.
171.201.
(viii) Violated any provision of a State, Tribal or Federal agency
certification plan or its associated laws or regulations.
(2) If the Agency intends to deny, revoke, or modify a certified
applicator's certification, the Agency will:
(i) Notify the certified applicator of all of the following:
(A) The ground(s) upon which the denial, revocation, or
modification is based.
(B) The time period during which the denial, revocation or
modification is effective, whether permanent or otherwise.
(C) The conditions, if any, under which the certified applicator
may become certified or recertified.
(D) Any additional conditions the Agency may impose.
(ii) Provide the certified applicator an opportunity to request an
informal hearing prior to final Agency action to deny, revoke or modify
the certification.
(3) If a hearing is requested by a certified applicator pursuant to
paragraph (e)(2)(ii) of this section, the Agency will do all of the
following:
(i) Notify the certified applicator of the legal and factual
grounds upon which the action to deny, revoke or modify the
certification is based.
(ii) Provide the certified applicator an opportunity to offer
written statements of facts, explanations, comments and arguments
relevant to the proposed action.
(iii) Provide the certified applicator such other procedural
opportunities as the Agency may deem appropriate to ensure a fair and
impartial hearing.
(iv) Appoint an attorney in the Agency as Presiding Officer to
conduct the hearing. No person shall serve as Presiding Officer if he
or she has had any prior connection with the specific case.
(4) The Presiding Officer appointed pursuant to paragraph
(e)(3)(iv) of this section shall do all of the following:
(i) Conduct a fair, orderly and impartial hearing, without
unnecessary delay.
(ii) Consider all relevant evidence, explanation, comment and
argument submitted to the Agency pursuant to paragraphs (e)(3)(ii) and
(iii) of this section.
(iii) Promptly notify the parties of the final decision and order.
Such an order is a final Agency action subject to judicial review in
accordance with Section 16 of the Act.
(5) If the Agency determines that the public health, interest or
welfare warrants immediate action to suspend the certified applicator's
certification, the Agency will do all of the following:
(i) Notify the certified applicator of the ground(s) upon which the
suspension action is based.
(ii) Notify the certified applicator of the time period during
which the suspension is effective.
(iii) Notify the certified applicator of the Agency's intent to
revoke or modify the certification, as appropriate, in accord with
paragraph (e)(2) of this section. If such revocation or modification
notice has not previously been issued, it will be issued at the same
time the suspension notice is issued.
(iv) In cases where the act constituting grounds for suspension of
a certification is neither willful nor contrary to the public interest,
health, or safety, the certified applicator may have additional
procedural rights under 5 U.S.C. 558(c).
(6) Any notice, decision or order issued by the Agency under
paragraph (e) of this section, and any documents filed by a certified
applicator in a hearing under paragraph (e)(2)(ii) of this section,
shall be available to the public except as otherwise provided by
section 10 of the Act or by part 2 of this chapter. Any such hearing at
which oral testimony is presented shall be open to the public, except
that the Presiding Officer may exclude the public to the extent
necessary to allow presentation of information that may be entitled to
confidentiality under section 10 of the Act or under part 2 of this
chapter.
(f) Restricted use pesticide dealer reporting and recordkeeping
requirements, availability of records, and failure to comply--(1)
Reporting requirements. Each restricted use pesticide retail dealer in
a State or area of Indian country where the Agency implements an EPA-
administered plan must do both of the following:
(i) Report to the Agency the business name by which the restricted
use pesticide retail dealer operates and the name and business address
of each of his or her dealerships. This report must be submitted to the
appropriate EPA Regional office no later than sixty 60 days after the
EPA-administered plan becomes effective or 60 days after the date the
person becomes a restricted use pesticide retail dealer in an area
where an EPA-administered plan is in effect, whichever occurs later.
(ii) Submit revisions to the initial report to the appropriate EPA
Regional office reflecting any name changes, additions or deletions of
dealerships. Revisions must be submitted to the appropriate EPA
Regional office within 10 days of the occurrence of such change,
addition or deletion.
(2) Recordkeeping requirement. A restricted use pesticide retail
dealer is required to create and maintain records of each sale of
restricted use pesticides to any person, excluding transactions solely
between persons who are pesticide producers, registrants, wholesalers,
or retail sellers, acting only in those capacities. Each restricted use
pesticide retail dealer must maintain at each individual dealership
records of each transaction where a restricted use pesticide is
distributed or sold by that dealership to any person. Records of each
such transaction must be maintained for a period of 2 years after the
date of the transaction and must include all of the following
information:
(i) Name and address of the residence or principal place of
business of each certified applicator to whom the restricted use
pesticide was distributed or sold, or if applicable, the name and
address of the residence or principal place of business of each
noncertified person to whom the restricted use pesticide was
distributed or sold, for application by a certified applicator.
(ii) The certification number on the certification document
presented to the seller evidencing the valid certification of the
certified applicator authorized to purchase the restricted use
pesticide, the State, Tribe or Federal agency that issued the
certification document, the expiration date of the certified
applicator's certification, and the categories in which the certified
applicator is certified.
(iii) The product name and EPA registration number of the
restricted use pesticide(s) distributed or sold in the transaction,
including any applicable emergency exemption or State special local
need registration number, if applicable.
(iv) The quantity of the restricted use pesticide(s) distributed or
sold in the transaction.
(v) The date of the transaction.
(3) Availability of required records. Each restricted use pesticide
retail dealer must, upon request of any authorized officer or employee
of the Agency, or other authorized agent or person duly designated by
the Agency, furnish or permit such person at all reasonable times to
have access to and
[[Page 51422]]
copy all records required to be maintained under this section.
(4) Failure to comply. Any person who fails to comply with the
provisions of this section may be subject to civil or criminal
sanctions, under section 14 of the Act, or 18 U.S.C. 1001.
(g) Compliance date. The only EPA-administered certification plans
that will be effective after [date 60 days after date of publication of
the final rule in the Federal Register] are those approved by the
Administrator after [date 4 years and 60 days after date of publication
of the final rule in the Federal Register].
[FR Doc. 2015-19988 Filed 8-21-15; 8:45 am]
BILLING CODE 6560-50-P
Office of the Federal Register, National Archives and Records Administration
Section
Proposed Rules
Action
Proposed rule.
Dates
Comments must be received on or before November 23, 2015.
Contact
Michelle Arling, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460;
FR Citation
80
FR
51355
RIN Number
2070-AJ20
CFR Associated
Environmental Protection; Administrative Practice and Procedure; Certified Applicator; Commercial Applicator; Indian Country; Indian Tribes; Noncertified Applicator; Pesticides and Pests; Private Applicator; Restricted Use Pesticides
and
Reporting and Recordkeeping Requirements