[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51355-51422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

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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

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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
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

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

[[Page 51370]]

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

[[Page 51391]]

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

[[Page 51392]]

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,

[[Page 51393]]

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

[[Page 51395]]

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.

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    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